Before the Third Division,

November 20, 1952

No. 56940.

#### Otto Roth & Co., Inc. *v.*United States,

protest 157701-K (New York).

Eewall, Judge:

This is a protest against the collector’s assessment of duty on cheese imported from Switzerland during November 1948 at 7 cents per pound, but not less than 35 per centum ad valorem, under paragraph 710 of the Tariff Act of 1930. It is claimed that the merchandise is properly dutiable at 5 cents per pound, but not less than 20 per centum ad valorem, under the same paragraph, as modified by the trade agreement with Finland, T. D. 48554, as “Cheese having the eye formation characteristic of the Swiss or Emmenthaler type.”

The pertinent provisions of the tariff act and its modification are as follows:

> Par. 710. Cheese and substitutes therefor, 7 cents per pound, but not less than 35 per centum ad valorem.

> Par. 710 [as modified by the trade agreement with Finland, T. D. 48554], Cheese having the eye formation characteristic of the Swiss or Emmenthaler type; * * *, 5$ per lb., but not less than 20% ad val.

The merchandise involved herein is described as Appenzeller cheese having no covering and is in two grades, one having a fat content of 4%3 per centum, and the other a fat content of *ls/is*per centum.

At the trial, Herman E. Bossart, secretary, treasurer, and sales manager of the plaintiff corporation, testified that he selected and inspected the imported merchandise and bought some of it himself while in Switzerland. In the course of his duties, he goes to Europe every 2 years and is familiar with all types of cheese produced in Europe. He is also familiar with the domestic cheese market. He was shown a photograph (plaintiff’s exhibit 1) and stated that the cheese depicted there resembled the first type involved herein, the so-called fat cheese. The photographed cheese has eyes of various sizes, which the witness stated ranged from one-eighth to three-eighths of an inch in diameter. They are irregularly spaced and their interiors have a shiny appearance. The witness stated also that the fat cheese has an eye formation similar to the eye formation of a grade-C or third-grade domestically produced Swiss cheese.

Plaintiff’s exhibit 1 is the same photograph that was introduced into evidence in *United States*v. *Wheeler & Miller,*32 C. C. P. A. (Customs) 22, C. A. D. 280, wherein the Court of Customs and Patent Appeals held that such cheese had the eye formation characteristic of the Swiss or Emmenthaler type. This photograph *404was also in evidence in *S. A. Haram et al.*v. *United States,*17 Cust. Ct. 37, C. D. 1016, in which we said (p. 41):

> The plaintiffs in the instant case stated that the cheeses they imported had eye formations similar to those in the cheese depicted in plaintiff’s exhibit 2. That exhibit is the same photograph that was in evidence in *United States*v. *Wheeler & Miller, supra.*The court held that the merchandise in that case had the eye formation characteristic of Swiss or Emmenthaler type cheese; therefore, the cheese in the instant case having similar eye formations must also be held to fall within that classification.

We conclude, therefore, that the fat cheese herein, having similar eye formations, is classifiable under the provision for “Cheese having the eye formation characteristic of the Swiss or Emmenthaler type.”

As to the other grade of imported merchandise, Mr. Bossart testified that it is called skimmed cheese and has a smaller eye formation than that of the cheese shown in the photograph. Its eye formation is characteristic of a domestic grinder or fourth-grade Swiss cheese. Some of it has eyes the size of a pinhead, and some of it is blind, having practically no eyes. The witness stated further:

> There is Swiss or Emmentaler [sic] type — I am talking about domestic now, grinder Swiss — that has exactly the same eye formation as an Emmentaler [sic]. It is a fourth grade. The cheese has been made the same way as Grade A, but it hasn’t turned out that way. So they grade it into 4 types, the largest eye formation is Grade A; the cheese with the smaller eye formation is B; still smaller is C; and whatever is smaller than that particular eye formation, which is about a quarter of an inch, falls under grinder. It can be a blind cheese, pin-eye cheese or cheese that has other defects, falls into that grade.

> X Q. So the characteristic of the Appenzeller to the Swiss or Emmentaler [sic] type which you are referring to is that it has a blind or pin-eyed hole; is that the word? — A. Yes, sir.

In *United States*v. *Wheeler & Miller, supra,*the court said (p. 26):

> * * * the framers of the paragraph in controversy made no limitation as to the size of the eye, nor did they say that the imported article should have the eye formation of either *imported*Swiss cheese or any particular quality or grade of Swiss or Emmenthaler cheese. They provided for a *type*of cheese, namely, any cheese “having the eye formation characteristic of the Swiss or Emmenthaler type.” [Italics quoted.]

Since it appears from the testimony in' the instant case that the so-called skimmed cheese has an eye formation like that of a grade of domestic Swiss cheese (fourth or grinder grade), it is classifiable as a “Cheese having the eye formation characteristic of the Swiss or Emmenthaler type.”

On the record herein, we hold that both grades of imported cheese are dutiable at 5 cents per pound, but not less than 20 per centum ad valorem, under paragraph 710 of the Tariff Act of 1930, as modified by the trade agreement with Finland, T. D. 48554, as “Cheese having the eye formation characteristic of the Swiss or Emmenthaler type.” The protest is sustained and judgment will be rendered for the plaintiff.