FINDINGS OF FACT After examining the record herein and fully considering the same we make the following findings of fact: 1. The merchandise herein consists of wrenches, Stillson wrenches, and ratchet braces manufactured in Germany. 2. The appraiser found that the merchandise was imported from Canada and returned the value of the same to the collector as follows: In reappraisement 70275-A, wrenches #169/10", $7.12 Canadian currency per dozen; Stillson wrenches #369/14", $9.97 Canadian currency per dozen; # 369/10", $7.12 Canadian currency per dozen; #369/8", $6.41 Canadian currency per dozen; #369/6", $5.70 Canadian currency per dozen. All prices being net, packed, taxes included; in reappraisement 70571-A, ratchet braces, $9.25 Canadian currency per dozen, net, packing and taxes included. 3. The merchandise was consigned from a point in Germany to Montreal, Canada. 4. There is no testimony in the record stating that the merchandise was intended, at the time of shipping the same from Germany, to be transported to Chicago, Ill., by way of Montreal, Canada. 5. There is testimony in the record to show that it was intended, at the time of shipment of the merchandise from Germany, that the same should be sold in Canada, and we so find. 6. A portion of the merchandise was sold in Canada. 7. The balance of the merchandise was reshipped from Montreal, Canada, to the plaintiffs at Chicago, Ill., for the reason, as claimed, that they were not able to sell the same in Canada. 8. The record is silent in respect to the prices at which the portion of the merchandise disposed of in Canada was sold. 9. There is no testimony in the record of any kind in respect to the market value of the merchandise in Canada, nor in respect to the United States value, nor in respect to the cost of its production. CONCLUSIONS OF LAW We conclude, as matters of law: 1. The merchandise involved herein is an importation from Canada. 2. The dutiable value of the merchandise is as returned by the appraiser, nothing having been contained in the record to overcome the presumption of its correctness. It is therefore adjudged that the dutiable value of the merchandise is the value thereof found by the appraiser, set forth in paragraph 2 of the findings of fact herein, and the decision of the trial court is reversed. Let judgment be entered accordingly. (T. D. 42542) Dropping bottles FREDERICK STEARNS v. UNITED STATES Small flint-glass dropping bottles, having a lip projecting from the rim of the neck, two grooves inside the neck, and a glass stopper ground to fit the neck of the bottle in which there are two grooves corresponding with those on the inner surface of the neck, permitting the dropping of the contents of the bottle when the stopper is turned so that its grooves correspond with the neck grooves, used as containers of "Astringosol," a mouth wash, are dutiable by reason of the proviso in paragraph 217, as bottles "ordinarily employed for the holding or transportation of merchandise, and not as appliances or implements in chemical or other operations." They are not dutiable under paragraph 218 as "biological, chemical, metallurgical, pharmaceutical, and surgical articles and utensils," etc. United States Customs Court, First Division Protest 79440 against the decision of the collector of customs at the port of Detroit [Reversed.] (Decided January 11, 1928) Comstock & Washburn (J. Stuart Tompkins and Henry J. Rode of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (Reuben Wilson, Kenneth G. Osborn, and John F. Kavanagh, special attorneys), for the United States. Before MCCLELLAND, SULLIVAN, and BROWN, Justices; McCLELLAND, J., and BROWN, J., Concurring SULLIVAN, Justice: The merchandise in question was classified by the collector under the provision for Biological, chemical, metallurgical, pharmaceutical, and surgical articles and utensils of all kinds, including all scientific articles, utensils, tubing, and rods, whether used for experimental purposes in hospitals, laboratories, schools, or universities, colleges, or otherwise, all of the foregoing, finished or unfinished, composed wholly or in chief value of glass or paste, or a combination of glass and paste, * * in paragraph 218 of the tariff act of 1922, at 65 per cent ad valorem. There are about 10 claims for lower duty in the protest, but according to the plaintiff's brief the claim relied on is that the merchandise. is dutiable at 12 cents per pound under paragraph 217. The applicable portion of paragraph 217 is as follows: * * PAR. 217. Plain green or colored, molded or pressed, and flint, lime, or lead glass bottles, * any of the foregoing, filled or unfilled, not specially provided for, and whether their contents be dutiable or free (except such as contain merchandise subject to an ad valorem rate of duty, or to a rate of duty based in whole or in part upon the value thereof, which shall be dutiable at the rate applicable to their contents), shall pay duty as follows: if holding not more than one pint and not less than one-fourth of a pint, 11⁄2 cents per pound; Provided, That the terms "bottles" as used herein, shall be restricted to such articles when suitable for use and of the char * * * * * * * * * acter ordinarily employed for the holding or transportation of merchandise, and not as appliances or implements in chemical or other operations, and shall not include bottles for table service and thermostatic bottles. The official sample of the merchandise (Exhibit 1) is a stoppered bottle, 54 inches high with the stopper, about 21⁄2 inches in width, and 13% inches in thickness. The corners of the bottle are flattened, rendering it eight-sided or octagonal, with two sides of greater area than the others. The neck of the bottle is slightly more than an inch in length, has two grooves on the inside, and is ground. The stopper, which is tapering, is also ground, and has two grooves therein, and a lip projecting from the top edge of the stopper. When the stopper is inserted in the bottle it may be turned, so that the grooves therein correspond with the grooves in the neck, thereby permitting the fluid contents of the bottle to escape a drop at a time. By turning the stopper sufficiently to break the connection between the grooves the bottle is closed, and the fluid retained. The testimony establishes that these bottles are used as containers for a liquid termed "Astringosol," a preparation used in treating pyorrhea, and as a mouth wash. This is shown by illustrative Exhibit A. The bottle is a four-ounce bottle, and contains exactly one-fourth of a pint. The testimony on the part of the plaintiff establishes beyond doubt that the merchandise is not used as "biological, chemical, metallurgical, pharmaceutical, and surgical articles" or utensils, but solely as containers for "Astringosol"; that the stopper of this bottle is used for dropping purposes, and is especially made therefor and adapted to drop the required number of drops of "Astringosol" into a glass of water. The witness testifying for the Government stated that he was connected with a glass manufactory and made bottles somewhat similar to the exhibit in evidence. He testified that the purpose of the channels in the neck of the bottle and the stopper and the indicator or projection from the stopper is to permit only one drop at a time to fall from the indicator; that when not in use the bottle can be tightly sealed. Illustrating the bottle as to which the witness was testifying, there was offered in evidence illustrative Exhibit C, a somewhat similar bottle, except in size and shape, containing the indicator and channels or grooves as shown in Exhibit 1. The witness testified that the sales of the bottles represented by illustrative Exhibit C by their firm were to chemical, laboratory, and hospital supply houses. Catalogues were introduced illustrating the character of the bottles to which the witness was referring. We do not find in such catalogues any bottles like Exhibit 1, the merchandise in dispute. In addition to this witness the Government offered the testimony of Mr. Knight, chemist in the appraiser's office at New York, who stated he was familiar with illustrative Exhibit C. He compared it with Exhibit 1, and as to their use stated that bottles practically identical therewith were used in laboratories as dropping bottles. He testified as follows: Bottles of similar type as these, with practically the identical neck and stopper, are used in the laboratory and have been for years as a dropping bottle, where you want to use just a drop of the reagent or a couple of drops of the reagent, where it is expensive, or where you do not want to use more than a couple of drops. The witness further testified on cross-examination that the only difference between the so-called dropping bottle and the ordinary bottle is in what might be called the dropping device, consisting of the two channels in the neck or throat of the bottle, and two corresponding channels or canals in the stopper of the bottle, permitting the fluid to flow drop by drop. He further testified: We have bottles of the same type, except that they do not have a neck and they do not have the channels in the bottle, that we use for reagents. Additional testimony was subsequently taken at Detroit, Mich., of two witnesses. Each witness clearly stated the use of the bottle, what it contained, and its sale to wholesale druggists, who in turn sold to the consumer. All designated Exhibit 1 as a container for "Astringosol." In addition thereto there were received in evidence illustrations of these bottles, as shown by advertisements in the Saturday Evening Post, indicating the use of the bottle as a container, and the method of extracting the fluid from the bottle. In addition there were two large exhibits, which may be designated "posters," used, as the witness stated, for advertising purposes throughout the country and particularly in the New York subway, showing the bottle of "Astringosol" held in one hand, and the fluid dropping therefrom into a glass of water. The evidence satisfactorily establishes that this bottle is a container of merchandise. It was further established that the merchandise is flint-glass bottles. The classification of the collector can not be sustained. The evidence does not warrant a holding that the bottles in question are used in laboratories or for scientific purposes. This merchandise is a mere container of "Astringosol." As to whether or not the bottle is reused after its contents are removed, we are without any evidence. It would appear from observation of the bottle that it would not be. The ultimate consumer, after using the contents, would evidently throw the bottle aside and would purchase a new bottle filled, if further "Astringosol" were desired. It is contended by the Government that, even if the collector's classification is erroneous, this merchandise can not be classified under paragraph 217, as it is not "ordinarily employed for the holding or transportation of merchandise." The paragraph under which it is claimed the merchandise is dutiable contains the proviso which we have quoted at the beginning of this decision. A reasonable construction of this proviso indicates that this bottle may have two purposes, it may be for holding the merchandise or it may be for the transportation thereof. It has not been established that it is used in the transportation of merchandise, but it has been established that it is used for holding merchandise. It therefore appears that the Government's contention that it is not used for the transportation of the merchandise may be true, and yet it would still fall within paragraph 217, for it is unquestionably used for the holding of merchandise, and the statute itself shows that when "ordinarily employed for the holding of merchandise" it falls within its provisions. A similar case arose under the tariff act of 1909 in the matter of protest 485570 of Surgical Supply Importing Co., G. A. 7292 (T. D. 31969; 21 Treas. Dec. 422). The bottle described in the opinion of Judge Sharrets in that case is almost identical with the bottle under consideration. In that case the merchandise consisted of flint-glass bottles known as dropping bottles, having a lip projecting from the rim and a glass stopper ground to fit the neck of the bottle, in which there were two grooves corresponding with those on the inner surface of the neck of the bottle. The stopper when adjusted permitted the fluid contents of the bottle to escape a drop at a time. By turning the stopper sufficiently to break the connection between the grooves the bottles became the ordinary air-tight containers for volatile fluids. The merchandise in question in the case at bar is not exactly the same as that in the case just referred to. Turning the stoppers does not render the bottles air-tight. Otherwise the bottles are very similar. * * It was there held that the bottles were dutiable "as molded or pressed and flint, lime, or lead glass bottles suitable for use as and of the character ordinarily employed as containers for the holding or transportation of merchandise, and not as appliances or implements in chemical or other operations." The wording of the statute is almost identical with the present statute, and the court sustained the position of the importer, reversing the collector's decision. We can not distinguish that case from the one at bar. This merchandise, being flint-glass bottles holding one-fourth of a pint, and being employed for the holding of merchandise and not as |