The collector of customs at the port of New York assessed duty on these importations at 45 per centum ad valorem under the following provision of the act of 1930:

PAR. 228 (b) Azimuth mirrors, parabolic or mangin mirrors for searchlight reflectors, mirrors for optical, dental, or surgical purposes, photographic or projection lenses, sextants, octants, opera or field glasses (not prism binoculars), telescopes, microscopes, all optical instruments, frames and mountings therefor, and parts of any of the foregoing; all the foregoing, finished or unfinished, not specially provided for, 45 per centum ad valorem.

The claims in both protests are identical. They are that the merchandise covered thereby

* is dutiable at 25%, 30% or 27% ad valorem under par. 372, or 35% ad valorem under par. 353, or at 20% ad valorem under par. 356.

There are also claims in each protest that the merchandise is dutiable at 10 or 20 per centum ad valorem under paragraph 1558. This paragraph relates to nonenumerated articles not specially provided for.

First: Plaintiffs' counsel stated at the opening of the trial:

We claim that the machines, each in its entirety, are dutiable at 27%2% under paragraph 372, or at 35% under paragraph 353, or in any event that the electric motor which was imported with one of them, is dutiable at 35% under paragraph 353.

It is evident from the above statement that these are the claims on which plaintiffs rely. This is also indicated in plaintiffs' brief. The applicable portions of these paragraphs are as follows:

or

energy

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PAR. 353. All articles suitable for producing, rectifying, modifying, controlling, distributing electrical ignition instruments * and articles having as an essential feature an electrical element or device, such as electrical motors, fans * * *

All the foregoing, and parts thereof, finished or unfinished, wholly or in chief value of metal, and not specially provided for, 35 per centum ad valorem. [Italics ours.]

PAR. 372. * * * all other machines, finished or unfinished, not specially provided for, 271⁄2 per centum ad valorem: Provided, That parts, not specially provided for, wholly or in chief value of metal or porcelain, of any of the foregoing, shall be dutiable at the same rate of duty as the articles of which they are parts:

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The following statement of facts is supported by the record:

The only witness, Major Davey, testified that the merchandise covered by protest 758829-G, entry 319038, is described on the invoice as follows:

Moving picture machine, internal combustion engine, electric generator, silver glass, lens, asbestos, and two items each separately described as "lamp".

Illustrative Exhibit A, a photograph, represents the apparatus involving the above-specified items. The apparatus has some resemblance to a breech-loading cannon mounted on a six-wheeled

motor truck. It is swivelled and mounted on a turntable, and is thereby adapted to be pointed upwards and swung from side to side. A replica of the photograph, Illustrative Exhibit A, is depicted herewith.

Major Davey testified, "In its condition as imported it came here mounted on a truck, wheels and all"; that it contained two lenses, two mirrors, and two lamps, but in use only one of these respective articles was required, the duplicates being extras. The same is true of two items of silver glass reflectors. Aside from the reflector and the lens, which were composed of glass, the remainder of the apparatus was all metal.

As to the remainder of the items on the before-mentioned invoice "beginning with 'carbons'" and down to and including "1 balloon wire" the plaintiffs do not claim that the collector's assessment of duty was erroneous.

In protest 758828-G, entry 830000, the merchandise is invoiced as "One Mark II Sky Projector." The witness testified it is "a projector without the lens, lamp, or mirror" and is the same as depicted in Illustrative Exhibit A, "without the truck and dynamo, or gas engine with central part"; that it was "imported in a knockeddown condition", and the witness "set it up" in this country.

As to the item on the invoice described as "1 damaged mirror" the claim was abandoned.

Referring to Illustrative Exhibit A, and the numbers thereon, the witness testified:

No. 1 shows where the silver glass mirror is. No. 2 a fan, No. 3 another fan. No. 4 a lamp, No. 5 a stencil wheel, No. 6 a lens, No. 7 is a turn-table; No. 8 is an elevating ratchet; No. 9 a gas engine; No. 10 a dynamo, No. 11 an electric switch.

The use of this apparatus is "for putting advertisements either on clouds or screen."

He described the operation thereof as follows:

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The electricity is generated by Nos. 9 and 10. By the engine and dynamo, Nos. 9 and 10. The switches operate the fans, Nos. 2 and 3; and the main switch operates the arc light, No. 4. When these are struck the light is collected by whirl patented motor, and the light is projected through the stencil wheel and through the lens onto the screen.

It further appears the electric current is generated "principally to create the light"; the result of having a mirror is to throw the light on to the stencil wheel, which holds the advertising signs; that the stencil wheel revolves, and when the light strikes the sign revolving in front of it "it goes through the lens which is in front

of it, and it hits the clouds or screen"; that the object of the fans is to create a current of air, in other words "one fan takes air out and the other is to put fresh air in"; that the fans are run by the electric

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current, and are "absolutely" a necessary part of the apparatus, for "until we invented the fan method, we could not use it because the heat was so great"; that images can be thrown for three miles and a half onto clouds by means of this apparatus, so that they can be seen fifteen miles away; that this apparatus "including everything" weighs 7%1⁄2 tons, and, without the carriage, the electric motor, and combustion engine, 21⁄2 tons; that it stands 12 feet, 6 inches high, and has a length of approximately 30 feet; that the electric motor is bolted to the truck on which the apparatus is set; that, with the exception of the creation of the light and operation of the fans by the electric motor, the "balance of the apparatus" is operated or moved by hand.

In response to questions by the court the witness testified that this apparatus differed from the usual motion picture machines, in that a stencil or screen is used, rather than a film; that "you could not put a film in this", and that if a screen is used it has to be unusually large, or 50 or 60 feet square, and "it would be better with the screen 200 feet"; that this apparatus can be operated without the electric motor and combustion engine "by taking the electricity from the main"; that it can also be used without the truck; that whether the electric motor is used or the electricity taken from the main "it must be operated by electric current".

On cross-examination the witness testified that the lens is an essential part of the article, and it could not be operated without it; that the lamp is an arc lamp "run by two carbons"; that the ratchet merely lowers or raises the apparatus for the purpose of directing the advertising matter on either the screen or on clouds.

On these facts the cause was submitted.

Second: In his brief, counsel for plaintiffs contends that inasmuch as in both protests the appraiser's reports were filed more than ninety days after the receipt of the protests by the collector, they are "therefore, no part of the record and can be given no consideration by this court." He cites the Bonwit Teller case, 19 C. C. P. A. 238 and 348, T. D. 45339, in support of this contention.

Protest 758828-G was received by the collector on May 10, 1934; the appraiser's report is dated February 4, 1935; and the collector's endorsement on the protest is dated May 8, 1935. By this endorsement he refers the protest to this court "for assignment and determination as provided in section 515, Act of 1930", and states that the merchandise was classified in accordance with the appraiser's advisory return.

Protest 758829-G was received by the collector on December 11, 1934; the appraiser's report is dated April 9, 1935; and the collector's note of transmittal is dated May 9, 1935. The collector does not state that the merchandise was classified in accordance with the appraiser's return, nor how he classified the merchandise.