was controlling as to the proper classification of the goods as imported. The court concluded (p. 18):

There remains for consideration whether this determination circumvents any intent of Congress. We think the evidence establishes that the upper portions of the cabana sets are not the "shirts" on which Congress has fixed a duty of 25% ad val. Appellant has imported what has been designed and sold exclusively as a unit. The upper portion, from the evidence of record, has no commercial value when returned. The upper portions are not imported as separate shirts. In view of the evidence we think the upper portion of the imported sets is more properly classified under paragraph 919 as part of an entirety of clothing rather than as a shirt under the same paragraph. We do not find this to be contrary to the considerations given effect in Lang, supra.

Defendant attempts to distinguish this case alleging that the items comprising the shirt and longie set have a commercial reality, existence and value separate and apart from each other and are so bought and sold. The record, however, establishes no more than that there are shirts and trousers, of a better quality, which are bought and sold separately and that each article in the set has a separate intrinsic value. It is clear that the articles herein were not in fact marketed separately, and that they have no commercial value except as a set.

The record in the instant case is devoid of any evidence of a convincing nature that the braided drawstring has a commercial value. The record merely establishes that braided drawstring material could be purchased domestically. Obviously the article discussed in the testimony would not be cut to size. There is no evidence that there is in fact a market for braided drawstrings of the size involved herein. The mere fact that the Tariff Act of 1930 contains a provision for braid is not indicative of the fact that Congress intended the provision to encompass such articles. We are not unmindful that said paragraph 1529(a), supra, cover articles of braid. However, as indicated, supra, there is no evidence that a braided drawstring is a commercial entity. The record does clearly establish the fact that the braided drawstring is imported attached to the hooded parka and is not sold separately.

We are, therefore, of the opinion that the imported parkas and the drawstrings are entireties and as such properly classifiable under the provisions of paragraph 1529 (a), supra, as classified. The protest is, therefore, overruled.

Judgment will be entered accordingly.

(C.D. 4080)

GENERAL METHODS CORPORATION v. UNITED STATES

Mechanical equipment

Machines which make decorative secondary closures for wine and spirituous liquor bottles from aluminum foil and claimed to be subject to classification under item 678.50, Tariff Schedules of the United States, as machines not specially provided for held properly classified as metal-working machine tools, other, under item 674.35.

The definition contained in subpart F, schedule 6, part 4, may be considered as indicative of the intent of Congress in enacting said provision.

A machine which cuts and shapes aluminum foil fits within the definition in the absence of competent evidence indicative of a contrary intent by Congress.

United States Customs Court, Second Division

Protest 68/17172-6819 against the decision of the district director of customs at the port of Chicago

[Judgment for defendant.]

(Decided September 25, 1970)

Schwartz & Lidstrom (Joseph Schwartz and Rufus E. Jarman, Jr., of counsel) for the plaintiff.

William D. Ruckelshaus, Assistant Attorney General (Robert Blanc, trial attorney), for the defendant.

Before RAO, FORD, and NEWMAN, Judges; NEWMAN, J., concurring; Rao, C. J., dissenting

FORD, Judge: This case involves the matter of the proper classification of a machine which makes an aluminum capsule for use as a secondary closure for bottles from aluminum foil. The machine was classified as metal-working machine tools, other, under the provisions of item 674.35, Tariff Schedules of the United States, and assessed with duty at the rate of 15 per centum ad valorem.

Plaintiff contends the imported machine is properly subject to duty at the rate of 10 per centum ad valorem under the provisions of item 678.50, Tariff Schedules of the United States, as machines, not specially provided for. An alternative claim under item 662.20, Tariff Schedules of the United States, has not been pressed and is therefore deemed abandoned and is accordingly dismissed.

The pertinent portions of the statutory provisions read as follows:

The record consists of the testimony of one witness called on behalf of plaintiff and the introduction in evidence of five exhibits.

This machine utilizes rolls of aluminum foil, four to six inches wide, which are fed through rollers. The foil is 15/10000 of an inch in thickness. A curved knife cuts the foil into blanks which are three to four inches wide. After the blank is cut, it is put on a foil transfer table for placing on a mandrel. The mandrel has vacuum holes which hold the foil on it. A rubber roller then shapes the capsule and a line of glue is placed on the edge of the capsule which holds it together. At the last station, a die embosses the design or brand name on the top of the capsule.

The testimony also indicates that the machine could not utilize foil more than 15/10000 of an inch in thickness as the knife would not cut it and the vacuum would not hold it on the mandrel. In the United States aluminum is used, but in Europe lead foil is also used. The machine differs from boring, drilling and milling machines since it does not remove metal or produce chips and is incapable of making parts of other machines. The machine does not cap the bottle but merely. produces the capsule which is a decorative secondary closure used on wine or spirituous liquor.

Plaintiff contends, based upon the record, that it would be unreasonable to treat this machine as a machine tool as that term has long been recognized by Congress. The Summary of Tariff Information, 1921, is cited for the purpose of indicating the type of material machine tools are used upon and their function. Similarly, the Summaries of Tariff Information of 1929 and 1948 are cited as illustrative of the types of machines covered by the predecessor provisions for machine tools. Plaintiff concludes that the Summaries of Tariff Information, supra, indicate the intent to include machines using great physical force to change the shape or surface of hard metal. This it is urged is quite different from the aluminum foil used by the imported machine. In addition, plaintiff relies upon the decision which held a machine

tool as being capable of producing machines or machine parts, United States v. Georgia Pulp and Paper Manufacturing Co., 3 Ct. Cust. Appls. 410, T.D. 32998 (1912), and the fact that every machine that works on metal is not a machine tool. Alex. Benecke v. United States, 30 CCPA 55, C.A.D. 214 (1942); United States v. Kurt Orban Co., Inc., 47 CCPA 28, C.A.D. 724 (1959).

While the foregoing information and decisions have some value under certain circumstances, it is nevertheless the prime function of this court in interpreting the tariff statutes to carry out the intent of Congress. The first consideration to be given to this intent is the following definition provided in the headnotes of subpart F, schedule 6, part 4:

Subpart F. headnotes:

1. For the purposes of this subpart

(a) the term "machine tool" means any machine used for shaping or surface-working

(i) metals (including metallic carbides);

(ii) stone, ceramics, concrete, asbestos-cement and like mineral materials, or glass in the cold; or

(iii) wood, cork, bone, hard rubber or plastics, or other hard materials,

whether by cutting away or otherwise removing the material or by changing its shape or form without removing any of it, but does not include rolling mills (item 674.20) or the hand-directed or -controlled tools provided for in items 674.60 and 674.70 of this subpart and in item 683.20 of part 5 of this schedule; and

(b) the term "metal-working" includes metallic-carbideworking.

It is evident from a reading of this definition that the intent was to broaden the prior concept of machine tools. It is also apparent that the function of the involved machine fits literally within said definition even though it might not be considered as one of the conventional machine tools. Therefore, unless there is some competent evidence to indicate a contrary intent, the imported machine is subject to classification as a metal-working machine tool as provided for in item 674.35, supra.

We are aware of the decision in the case of Pitney-Bowes, Inc. v. United States, 59 Cust. Ct. 181, C.D. 3116, 273 F. Supp. 403 (1967), which held a machine for embossing metal plates for mailing purposes to be office machines rather than machine tools. In that case, in addition to the information cited therein from the so-called Brussels Nomenclature, there was a strong competing provision, to wit, office machines. The court therein concluded that while the embossing machine did perform some of the functions in the definition, it was not

of the type involved and was in fact an office machine. This is clearly indicated in the Pitney-Bowes case, supra, wherein the following statement was made:

In the instant case, the provision for office machines in item 676.30, TSUS, "snugly admits the importation under consideration", certainly far more than the provision for "Metal-working machine tools: *** Other" * *

In the instant case, we do not have a strong competing provision but merely the basket provision for machines.

While the headnote does not indicate the use on "soft" material as alleged by plaintiff, we note that it likewise does not provide or require its use on "hard" metal. There is no dispute that aluminum foil is metal and that the involved machine cuts and shapes it. Accordingly, we are of the opinion that plaintiff has failed to overcome the presumption of correctness attaching to the action of the customs classification. The protest is therefore overruled.

CONCURRING OPINION

NEWMAN, Judge: I concur.

I agree with the views expressed by Judge Ford, but wish to add these observations:

The record establishes that the imported Meta capsule production machine is designed to manufacture "capsules" in various sizes made of thin aluminum foil. These capsules are cylindrical thimble-like objects, and are used as secondary closures for bottles containing wine or other spirituous liquor. The capsules fit over the top of the neck of the bottle and the primary closure (screw cap or cork), and serve to decorate the bottle. The imported machine only manufactures the capsules, and does not put the capsules on bottles.

Briefly, to make the capsules, aluminum foil in rolls is "threaded" through two foil feed rollers which pull the foil through the machine and "index" the foil to a predetermined amount.1 After the foil is indexed a curved knife cuts the aluminum into curved "blanks." These blanks are then shaped into individual cylindrically shaped capsules by the action of a forming mandrel and a rubber pressure roll. Glue is then applied along the edge of the capsule to hold it together. Additionally, the machine is capable of embossing a design or brand name on top of the capsule.

1 Webster's Third New International Dictionary (1966) defines the verb "index" as follows: "3. to move (a machine or a piece of work held in a machine tool) so that a specific operation (as the cutting of gear teeth) will be repeated at definite intervals of space."

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