yet the court held the same dutiable as works of art under paragraph 1449. In J. C. Nichols' case, Abstract 9557, 56 Treas. Dec. 789, marble in the form of fountains, etc., was the subject of the protest. It was held that their utilitarian character did not exclude them from paragraph 1449.. In Hunt Diederich's case, Abstract 14601, 59 Treas. Dec. 1467, a weather vane, one candlestick, and five so-called "pot stands" for table use, composed wholly or in chief value of metal, were held by this court dutiable as works of art under paragraph 1449. However, the appellate court reversed our decision, United States v. Hunt Diederich, 19 C. C: P. A. 156, and held that the merchandise was properly classified by the collector as articles of utility produced by industrial art, under paragraph 399, act of 1922, on the ground there was nothing in the record to establish that the imported articles are examples of the free fine arts. In the case at bar the evidence establishes that this merchandise is among the free fine arts (minutes, pp. 11, 12, 16-20). In A. Ackerman & Sons v. United States, T. D. 44787, 59 Treas. Dec. 837, certain pottery figures were held dutiable at 20 per centum ad valorem under paragraph 1449. Therefore, in view of the testimony that these articles are examples of the free fine arts, and following the authorities heretofore cited, we are of opinion that the merchandise assessed at 55 per centum ad valorem under paragraph 218 covered by protest 410916-G, described in the invoice as "Coupes alcove", "Panel over bed", and "Chapiteaux glass" is properly dutiable at 20 per centum ad valorem under paragraph 1449. We so hold. They are not free of duty under paragraph 1704 for the reasons heretofore stated. Third. As to the merchandise covered by protest 410916-G classified as illuminating articles and assessed at 60 per centum ad valorem under paragraph 218, described in the protest as "ceiling lights", the only claims are that it is dutiable at 55 per centum or 50 per centum under paragraph 218. Neither paragraph 1449 nor paragraph 1704 is in question as to this merchandise. The testimony shows that practically all of plaintiffs' counsel's efforts were directed to proving that these articles are works of art and examples of the free fine arts. He succeeded in his efforts, and we are of opinion that these ceiling lights, being examples of the free fine arts used for utilitarian purposes, are properly classifiable under paragraph 1449; but we cannot place these ceiling lights therein for the reason they are not claimed in the protest so dutiable. Plaintiffs have not proved that they are dutiable under paragraph 218 at 50 or 55 per centum ad valorem, nor have they introduced satisfactory evidence that they are not glass illuminating articles; on the contrary on page 18 of the record plaintiffs' counsel mentions the chandeliers as being used for artificial illumination. Therefore, as to the ceiling lights classified by the collector as glass illuminating articles his decision will stand. See Weiss & Biheller v. United States, T. D. 43607, 56 Treas. Dec. 289, affirmed in 18 C. C. P. A. 293, T. D. 44503. Protest 410916-G is sustained in its claim for 20 per centum ad valorem under paragraph 1449 as to the merchandise assessed at 55 per centum ad valorem under paragraph 218. It is overruled in all other respects. Protest 410905-G is overruled. Judgment accordingly. (T. D. 47344) X-ray goniometer and parts CARNEGIE INSTITUTE OF TECHNOLOGY v. UNITED STATES An instrument composed in chief value of metal, not plated with platinum gold, or silver, used in laboratories entirely for research purposes in elucidating the inner structures of crystals, or "for the purpose of research on crystal structure", is not any one of the instruments specified in paragraph 228 (a) of the Tariff Act of 1930, and is not dutiable thereunder at 60 per centum ad valorem. It is properly dutiable as a scientific and laboratory instrument, and parts thereof, wholly or in chief value of metal, not plated with gold, silver, or platinum, at 40 per centum ad valorem under paragraph 360 of said act. United States Customs Court, First Division Protest 680166-G against the decision of the collector of customs at the port of Pittsburgh [Judgment in part for plaintiff.] (Decided November 9, 1934.) Jerome G. Clifford for the plaintiff. Joseph R. Jackson, Assistant Attorney General (John F. Kavanagh, special attorney), for the United States. Before MCCLELLAND, SULLIVAN, and BROWN, Judges SULLIVAN, Judge: This protest relates to a certain so-called "X-ray goniometer and parts." The collector of customs at Pittsburgh assessed this merchandise with duty at 60 per centum ad valorem under the following provision of the Tariff Act of 1930: PAR. 228. (a) Spectrographs, spectrometers, spectroscopes, refractometers, saccharimeters, colorimeters, prism-binoculars, cathetometers, interferometers, haemacytometers, polarimeters, polariscopes, photometers, ophthalmoscopes, slit lamps, corneal microscopes, optical measuring or optical testing instruments, testing or recording instruments for ophthalmological purposes, frames and mountings therefor, and parts of any of the foregoing; all the foregoing, finished or unfinished, 60 per centum ad valorem. The protest claims this merchandise dutiable, either originally or by amendment thereto, at 35 per centum ad valorem under paragraph 353; at 40 per centum ad valorem under paragraph 360; or at 45 per centum ad valorem under paragraph 397 of said act. It does not appear from the record under which of the numerous items referred to in paragraph 228 (a) the collector classified this merchandise; nor is it stated on which of the above claims plaintiff relies. Photographs of this instrument are in evidence. They are marked Exhibits A, B, C, D, and E. Exhibits A and B give a good idea of the appearance of the instrument. They are reproduced opposite the following page. Dr. Charles S. Barrett, a research physicist connected with the plaintiff, the Carnegie Institute of Technology, was the only witness. He testified that the exhibits were photographs of a machine identical with the present, excepting that these photographs show a small motor attached to the machine after it was made by the maker, and the present merchandise is without such motor. The witness testified that this article "is an instrument for the purpose of research on crystal structure." The article is composed almost entirely of metal, or between 90 and 95 per centum of metal, also 1 per centum of cardboard, between 1 and 5 per centum of glass, and less than 1 per centum of bakelite. Plaintiff's counsel then named the various instruments specified in paragraph 228 (a), and the witness testified that this instrument is not a spectrograph, a spectrometer, a spectroscope, a refractometer, a saccharimeter, a colorimeter, a prism-binocular, a cathetometer, an interferometer, a haemacytometer, a polarimeter, a polariscope, a photometer, an opthalmoscope, a slit lamp, or a corneal microscope. He was then asked whether this instrument is an optical measuring or optical testing instrument. This question was objected to as calling for a conclusion, and counsel changed the question by asking him whether he had knowledge of an optical measuring or optical testing instrument. He answered "Yes, sir. * * * An instrument which deals with beams of light"; that measuring and testing "covers about the same thing." He then elaborated on the description by stating that an optical measuring or testing instrument— is an instrument that deals with beams of light, to study their index of refraction and measure the index of refraction; or send that beam of light through prisms or lenses and measure the convergence or divergence of the beam resulting from such. He was then asked again if this instrument is an optical measuring or testing instrument, but the objection of the defendant to this question was sustained by the court. He further testified that this instrument is not a testing or recording instrument for opthalmological purposes. The witness further testified that this goniometer "is used in a physics laboratory or scientific laboratory only for research purposes" and that "the purpose of this instrument before the court is the elucidation of the inner structure of a crystal placed in it." He then testified on cross-examination as follows: X Q. Isn't it a sort of optical testing instrument, this goniometer? A. No; it is not an optical testing instrument. With one exception the witness has testified positively that this X-ray goniometer is none of the instruments specified in paragraph 228 (a). That exception is the optical measuring instrument. To determine whether or not this instrument is an optical measuring instrument we will compare the functions of the two instruments as stated by the witness. This X-ray goniometer "is an instrument for the purpose of research on crystal structure ", or "the elucidation of the inner structure of a crystal placed in it." An optical measuring or testing instrument is * * an instrument which deals with beams of light to study their index of refraction and measure the index of refraction; or send that beam of light through prisms or lenses and measure the convergence or divergence of the beam resulting from such. It is evident from a comparison of these two uncontradicted definitions that this merchandise is not an optical measuring or testing instrument. It is evidently, therefore, not any of the instruments specified in paragraph 228 (a), and is not dutiable as classified by the collector. How then is it dutiable? The protest, inter alia, claims it dutiable under the following provision of the tariff act: PAR. 360. Scientific and laboratory instruments, apparatus, utensils, appliances (including surveying and mathematical instruments), and parts thereof, wholly or in chief value of metal, and not plated with gold, silver, or platinum, finished or unfinished, not specially provided for, 40 per centum ad valorem This instrument is composed almost entirely of metal, the proportion of other materials entering into it being almost infinitesimal. We think it is safe to say it is in chief value of metal, and a scrutiny of the photographs, Exhibits A to E, confirms us in this opinion; but is it plated with platinum, gold, or silver? We find nothing in the minutes of the trial on this point. Counsel for plaintiff in his brief states it "is not plated with silver, gold, or platinum ", and an examination of the exhibits indicates it is not such an instrument as would be so plated. We are firmly of the opinion, despite lack of direct |