Before the First Division,

February 9, 1950

No. 54014.

#### M. Pressner & Co. *v.*United States,

protest 93712-K (New York).

Oliver, Chief Judge:

The merchandise involved in the suit at bar consists in one instance of certain celluloid figures, approximately *6}i*inches in height, imported from Japan, which appear on the invoice as item No. 6244 and are described therein as "Foot Ball Players.” They were assessed with duty under paragraph 1513 of the Tariff Act of 1930 at 1 cent each and 50 per centum ad valorem as celluloid “dolls.” The protest also involves certain merchandise consisting of celluloid figures, approximately 4 inches long by 2 inches high, also imported from Japan, which appear on the invoice as item No. 1881 and which are described as “Bull Dog Ornaments.” These figures were assessed for duty under paragraph 1513 at the rate of 1 cent each and 50 per centum ad valorem as celluloid “toys.” The plaintiff claims both items properly dutiable under paragraph 31 (b) (2) of the tariff act at the rate of 60 per centum ad valorem as manufactures of cellulose.

The pertinent provisions of the involved paragraphs are as follows:

> Par. 1513. * * * dolls and toys, composed wholly or in chief value of any product provided for in paragraph 31, * * * not having any movable member or part, 1 cent each and 50 per centum ad valorem * * *.

> Par. 31. (b) All compounds of cellulose (except cellulose acetate, but including pyroxylin and other cellulose esters and ethers), and all compounds, combinations, or mixtures of which any such compound is the component material of chief value:

> * * Jfc jfc Jfc Sfc *Ofi*

> (2) made into finished or partly finished articles of which any of the foregoing is the component material of chief value, not specially provided for, 60 per centum ad valorem.

No testimony was introduced by either party herein. With respect to item No. 1881, the celluloid “Bull Dog Ornaments,” there was incorporated the record in the case of *Illfelder Importing Co., Inc.*v. *United States,*14 Cust. Ct. 271, Abstract 50248 (R. 2). In that case, certain hollow celluloid articles in the form of bulldogs were classified as toys at 50 per centum ad valorem and 1 cent each under paragraph 1513 and were claimed dutiable at 60 per centum ad valorem under paragraph 31 (b) (2). The testimony was to the effect that the celluloid articles were used almost entirely in the manufacture of badges for use at football games and that they were worn exclusively by adults. The court held that the plaintiff had made out a *prima facie*case and the evidence offered by the Government was insufficient to support the collector’s classification. In the present case, the Government concedes in its brief that the *Illfelder*case, *supra,*is controlling as to the classification of the merchandise herein invoiced as “Bull Dog Ornaments” (item No. 1881) and raises no question as to the plaintiff’s claim with respect to that item. The protest claim in this respect is, therefore, sustained and judgment will be rendered accordingly.

With respect to the merchandise invoiced as “Foot Ball Players” (item No. 6244), there was incorporated herein the record in the case of *M. Pressner & Co.*v. *United States,*7 Cust. Ct. 106, C. D. 546.

The same merchandise as is here before us, namely “Foot Ball Players,” was the subject of our decision in *M. Pressner & Co.*v. *United States,*in protest 93687-K, 24 Cust. Ct. 77, C. D. 1211, decided concurrently herewith. We there held these celluloid figures of football players, being the same as those in the incorporated case (M. *Pressner & Co.*v. *United States,*7 Cust. Ct. 106, C. D. 546), not to be dolls and, therefore, not dutiable as assessed under paragraph *3671513. Following our decision in the incorporated case *(M. Pressner & Co.*v. *United States, C.*D. 546) and our decision in *M. Pressner & Co.*v. *United States, supra*(protest 93687-K), we find the celluloid football player figures before us in the present case to be properly dutiable under the provisions of paragraph 31 (b) (2) as manufactures of cellulose, as claimed.

We, therefore, sustain the protest herein both as to the celluloid bulldogs (item No. 1881) and the celluloid football players (item No. 6244) and hold both items not dutiable as assessed but properly dutiable under paragraph 31 (b) (2), Tariff Act of 1930, at the rate of 60 per centum ad valorem as manufactures of cellulose, as claimed. Judgment will be rendered accordingly.