(C. D. 841)

#### Universal Lamp Co., Inc. *v.*United States

United States Customs Court, Third Division

(Decided March 29, 1944)

*Wallace & Schwartz (Joseph Schwartz*of counsel) for the plaintiff.

*Paul P. Rao,*Assistant Attorney General *(Dorothy C. Bennett*and *Joseph A. Howard, Jr.,*special attorneys), for the defendant.

Before Cline, Keefe, and Ekwall, Judges

Keefe, Judge:

In this case certain merchandise imported from England through the mails and described in the entries as “lava tips for burners” or “lava tips for acetylene burners” was classified by the collector “by similitude under par. 215 @ *10¡i*per gross and 15^ ad valorem T. A. 1930.” (See collector’s timely memorandum with the protest papers.)

The plaintiff claims that the merchandise is properly dutiable at 20 per centum ad valorem under paragraph 372, or under paragraph 214 at 30 per centum ad valorem, and, by way of amendment of the protest, it is further claimed that the assessment of duty at a higher rate than 20 per centum ad valorem is contrary to the provisions of section 6, Customs Administrative Act of 1938, or that, in the alternative, it is properly dutiable at 35 per centum ad valorem under paragraph 209.

The paragraphs of the Tariff Act of 1930, so far as applicable, provide as follows:

> Par. 215. Gas retorts, 20 per centum ad valorem; *lava tips for burners, 10 cents per gross and 15 per centum ad valorem;*and magnesia clay supporters, consisting of rings, rods, and other forms for gas mantles, 35 per centum ad valorem. [Italics not quoted.]

> *131Par. 372. * * * apparatus for the generation of acetylene gas from calcium carbide, 20 per centum ad valorem; * * *.

> Par. 214. Earthy or mineral substances wholly or partly manufactured and articles, wares, and materials (crude or advanced in condition), composed wholly or in chief value of earthy or mineral substances, not specially provided for, whether susceptible of decoration or not, if not decorated in any manner, 30 per centum ad valorem; * * *.

> Par. 209. * * * manufactures * * * of which talc, steatite or soapstone * * * is the component material of chief value, wholly or partly finished, and not specially provided for, if not decorated, 35 per centum ad valorem * * *.

Section 6 of the Customs Administrative Act of 1938 reads as follows:

> Sec. 6. Section 315 of the Tariff Act of 1930 (U. S. C., 1934 edition, title 19, sec. 1315) is hereby amended by deleting the proviso thereof, changing the colon preceding such proviso to a period, and adding at the end of such section the following: “Insofar as duties are based upon the quantity of any merchandise, such duties shall, except as provided in paragraph 813 and section 562 of this Act (relating respectively to certain beverages and to manipulating warehouses), be levied and collected upon the quantity of such merchandise at the time of its importation. No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the weekly Treasury Decisions of notice of such ruling; but this provision shall not apply with respect to the imposition of antidumping duties.”

The president of tbe importing company testified tbat all of bis importations of lava tips were alike and were shipped to him by the same manufacturer; that he is the inventor of the miner’s lamp and that the lava tip, after importation, is first encased in a metal housing and then fitted into the opening of the lamp; that the flame, caused by igniting an acetylene gas derived from mixing carbide and water, issues from the tip; that the purpose of the tip is to regulate the size of the flame; and that there are similar lava tips manufactured in the United States by the American Lava Corporation.

The plaintiff’s witness produced some lava tips as representative of the importation, which were marked exhibit 1. A miner’s lamp, also produced by the witness, having the lava tip in its proper place, was marked illustrative exhibit A. A sample of lava tips used by the Government to obtain the composition thereof and a Government laboratory report as to such composition were also admitted in evidence on behalf of the plaintiff as collective exhibit 2.

The Government examiner testified that the Justrite Manufacturing Corporation also imports these lava tips from the same manufacturer, and a Justrite lamp in a carton, with a folder describing the lamp and its parts, was admitted in evidence on behalf of the Government and marked illustrative exhibit B.

*132The Justrite-acetylene lamp, illustrative exhibit B, consists of two parts. A metal reflector is attached to one side of the upper part, in the center of which is the lava tip contained in the “Jewel Metal Tip.” The lower part is designed to hold calcium carbide. This lower portion is securely screwed into the upper portion, which embraces a container for water. A metal tube extends from the top of the upper portion through the water container and down into the carbide container. On the top of the upper portion there is an opening through which the water container may be filled and also a movable lever attached to a rod extending down through the metal tube to the bottom thereof, terminating in a brass stopper. By turning the lever to the left, the brass stopper at the bottom of the tube is loosened and thus water is allowed to flow slowly into the calcium carbide chamber, creating a gas. The water in the upper chamber flows into this metal tube through a small hole therein at the base of the container. The base of the upper portion of the apparatus immediately over the carbide container also contains a small hollow tube ending in the center of the metal reflector. The gas generated in the burner has this means of escape only, and from this tube passes through-the small aperture in the lava tip, where it is ignited. In the list of repair parts, the Jewel Metal Tip No. 28 is described as follows:

> A perfect Metal Tip. Shell made of brass with an imported Lava burner insert, combining the best qualities of the Metal and Lava Tip — cannot break or crack — easy to put in and take out.

In illustrative exhibit C, the catalog of the American Lava Corporation, on page 9, appears the following:

> WHAT IS LAVA?

> Lava is the trade name for a natural steatite product. It is mined from deposits in the earth in nugget form. It is not of volcanic origin as is often erroneously supposed. It is fabricated by us into finished form, then fired into hardness in a high temperature kiln. So far as is known, no other kiln hardened material, whether made by us or by others, can at this time be produced with the final accuracy common in so-called Lava manufacture. There are well defined limits as to size, although few limitations as to shape.

> Lava is indispensable to economical preliminary work where ultimately the part is to be produced in quantity from one of the Al Si Mag materials. Models may be made very quickly (without use of dies or expensive tools) to prove or disprove the feasibility of design in question. In addition there are numerous fields in which Lava is still supreme; in the production of small quantities of special parts where a die expenditure is not warranted; it is further used in gas spuds, pilots, burner tips, etc., or at any point where the combustion of gases takes place. Lava gas tips do not corrode or carbonize. * * *.

The western sales manager of the American Lava Corporation testified for the Government that his company offers its products for sale in every state of the Union; that he is familiar with “lava tips for burners” and upon inspection of exhibit 2 identified the same as the *133burners bis company offers for sale throughout the United States but actually sells only in limited places; that they are offered for sale as lava tips and are lava tips for burners; that there are many styles of burner tips manufactured and what his firm termed “burner tips” includes the tips in question; that the term “gas burner” is a broad term and the burners in which the tips in question are designed to be used would be included in the term “gas burner”; and that the brass part in front of the miner’s lamp in which the lava tip is inserted is the burner.

Counsel for the plaintiff contends that the tips in question are not, in fact, “lava tips for burners” and further that the word “lava” is well known and has a meaning which is neither vague, doubtful, uncertain nor ambiguous and therefore there is no need for the court to resort to rules of construction. It is further contended that if the court should consider the description of lava tips appearing in the “Summary of Tariff Information, 1929,” the only conclusion to be reached is that the statement therein concerning the tips being made of steatite is merely an expression of opinion of the Tariff Commission and that Congress did not attach any weight thereto. (Citing *Cohn*& *Lewis*v. *United States,*25 C. C. P. A. 220, T. D. 49335.) It is further contended that if the court should give credence to such statement it must conclude that the tips in question are not included because they are not for “gas-light burners.” Counsel for the plaintiff relies largely upon the language of the Tariff Commission’s summary that the lava tips are for “gas-light burners,” contending that the burners in question are not designed for “gas-light” and consequently such lava tips are precluded from classification under paragraph 215, and further, that the collector erred in classifying said tips as dutiable thereunder, by similitude, because they are more specifically provided for in paragraphs of the tariff other than under the nonenumerated manufactured article paragraph 1558.

The Government contends that the provision for “lava tips for burners” is ambiguous, and since it has been established that the merchandise herein is composed mainly of steatite with a bmder of clay or similar silicate, the legislative intent must be determined through a resort to rules of construction, citing *United States*v. *Clay Adams Co.,*20 C. C. P. A. 285, T. D. 46078. The Government also directs the court’s attention to the “Summary of Tariff Information, 1929,” contending that the court must presume that the information contained therein was before Congress at the time it enacted the Tariff-Act of 1930. It is further contended that the evidence before the court establishes that the common meaning of the term “lava tips for burners” includes articles like the importations here, and consequently it was unnecessary for the Government to introduce testimony as to the commercial meaning of the term “lava tips for burners.”

*134The common meaning of the terms here before us appear in the various dictionaries as follows:

> *gas-burner, n.*The tip or armature of a gas-burning lamp or bracket, through which the gas is caused to issue for consumption. Gas-burners are made in many shapes and types, but in all the object is to insure the complete exposure of the burning gas to a fresh supply of oxygen, and thus to obtain the greatest amount of light with the least expenditure of gas. The resulting flames assume the fancied forms of beaks, bats’ wings, fish-tails, cockspurs, etc., whence the different forms of burners have received distinctive names. *The material used to tip or form the tops of the burners has also given names to them, as the lava-tip burner.*[Century Dictionary & Cyclopedia. Italics not quoted.]

> *burner*2. The part of a lamp from which the flame issues; * * * the jet-piece from which a gas flame issues. Burners include all forms of apparatus for burning gas, oils, or vapors, singly or in combination: as, a hydrocarbon *burner,*carbureting *gas-burner,*lime-light *burner,*regenerative *burner,** * *. [Century Dictionary & Cyclopedia.]

> *gas-burner n.*A tube or tip, usually attached to a gas-fixture, for regulating the flame of the gas consumed. [Funk & Wagnalls Standard Dictionary.]

> *burner, n. 2.** * * that part of a lighting-apparatus from which the flame comes. [Funk & Wagnalls Standard Dictionary.]

> *gas-tip, n.*A plug or cap fitted to a gas-burner to regulate, by the shape and size of its opening, the shape and size of the flame produced. *A common type is cut from lava and known as a lava tip.*[Italics not quoted. Funk & Wagnalls Standard Dictionary.]

> *tip,n.*1. The point or extremity of anything small or tapering; * * *. [Funk & Wagnalls Standard Dictionary.]

> *acetylene,*«..***. *The most brilliant of illuminating gases*(C2H2). It may be produced synthetically from its elements, by incomplete combustion of coal gas', and commercially from calcium acetylid (CaC2) by the action of water. [Italics not quoted. Funk & Wagnalls Standard Dictionary.]

> *calcium carbide (calcium acetylid),*a compound made from quicklime and carbon in an electric furnace. [Funk & Wagnalls Standard Dictionary.]

The tariff history of “lava tips for burners” extends back to the Tariff Act of 1890, where it appeared in paragraph 101 —“All other china * * * including lava tips for burners.” In the Tariff Act of 1894 it was taken from the china provision and placed in paragraph 86, a general provision for “All articles composed of earthen or mineral substances, including lava tips for burners . * * In the Tariff Act of 1897 the provision appeared in paragraph 98 as follows: “Gas retorts * * *; lava tips for burners * * *.” The successive Tariff Acts of 1909, 1913, 1922, and 1930 provided for lava tips for burners in the “gas retorts” paragraph.

In the “Notes on Tariff Revision, 1908,” prepared for the use of the • Committee on Ways and Means, House of Representatives, at the time the Tariff Act of 1909 was under consideration, on page 110, under the heading “General Information” appears the following:

> *Lava tips*are not made from lava, but from steatite or talc.

The same notation appears in the Dictionary of Tariff Information, *1351924, on page 802. A more complete description of tbe article appears in the “Summary of Tariff Information 1929” on page 496, as follows:

> Lava tips for burners are the small tips used in conjunction with metal or other gas-light burners. They are manufactured from steatite, a massive form of talc. The natural rock is cut into blanks which are turned, threaded, drilled, and slotted, and subsequently fired or baked.

Notwithstanding Funk & Wagnalls’ description of a common typo of gas tip as “cut from lava and known as a lava tip,” the term “lava” has not denoted the composition of the tip, as provided for in the tariff act, at least since 1890. A more accurate description of the burner, in our opinion, is given in the Century Dictionary and Cyclopedia, to wit: “The material used to tip or form the tops of the burners has also given names to them, as the lava-tip burner.”

A gas burner, according to the foregoing definitions, is a general term and includes the tip through which the gas issues for consumption, and would include the brass ferrule around the lava tips, as stated by the Government witnesses. It may also be noted that the gas produced by the combination of calcium carbide and water is “The most brilliant of illuminating gases.” Acetylene gas being commonly known as an illuminating gas, the lava tips imported here come squarely within the description in the “Summary of Tariff Information, 1929” as “small tips used in conjunction with metal or other gas-light burners.”

In the case of *United States*v. *Clay Adams Co., supra,*our appellate court stated:

> * * *. All rules of construction must yield if the legislative intent is shown to be counter to the apparent intent indicated by such rule. The master rule in the construction of statutes is to so interpret them as to carry out the legislative intent. * * *. [Citing cases.]

The case cited by the plaintiff, relative to statements by the Tariff Commission being merely expressions of opinion to which Congress did not attach any weight, involved a statement by the Tariff Commission which was contrary to a ruling of the court upon the particular subject. Such is not the situation here before us,' and consequently that case is not in point.

From a consideration of the tariff history of the provision for “lava tips for burners” and the evidence before us, we find that the common and tariff meanings of the term “lava” coincide; that “lava” is a descriptive term used in connection with tips for burners; and that it is manufactured largely from steatite. It is further self-evident that as acetylene gas is one of the well-known illuminating gases, lava tips inserted in brass housings for use in miners' acetylene lamps are tips such as are used in conjunction with metal gas-light burners. Consequently the lava tips in question, although properly dutiable as *136assessed at 10 cents per gross and 15 per centum ad valorem, became directly classifiable under tbe *eo nomine*provision therefor in paragraph 215 rather than classifiable by similitude, as stated by the collector.

Judgment will therefore be entered in favor of the Government.