provision or provisions thereof, it should not be resorted to for the purpose of showing legislative intent. It would be an unsafe practice to permit such a consideration to be controlling.

United States Court of Customs and Patent Appeals, December 24, 1934

APPEAL from United States Customs Court, T. D. 46956

[Modified and remanded.]

Joseph R. Jackson, Assistant Attorney General (William H. Futrell and Ralph Folks, special attorneys, of counsel), for the United States.

Brown & Carter (Allan R. Brown, Fred J. Carter, and E. F. Blauvelt of counsel) for appellee.

[Oral argument December 10, 1934, by Mr. Folks and Mr. Blauvelt]

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges

BLAND, Judge, delivered the opinion of the court:

The merchandise involved in this appeal is a machine weighing about four or five hundred pounds which reproduces motion pictures by printing on a blank film the picture which is on a developed film. The machine was not shown to the trial court or to this court. Two photographs, representing front and back views of this machine were received in evidence as Illustrative Exhibits A and B, which exhibits are printed in the record in connection with the opinion of the trial court. Exhibit B is reproduced herewith. The machine is described by the witness who testified for the importer, and its uses and characteristics, as shown by the testimony of said witness, are so well set out by the trial court that we can do no better than to quote from its opinion as follows:

The witness's testimony as to the machinery depicted in illustrative exhibits A and B is as follows:

Q. Now, will you describe the component parts of the machinery imported as illustrated by illustrative exhibits A and B?-A. That is composed of a projection machine and a camera. The camera is located practically under the

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Q. Is the reel now marked "1", Doctor?-A. Yes, sir.

Q. What portion of the picture represents the camera?-A. Directly in the center over the pedestal.

Q. Would you put a numeral "2" at one extremity and the numeral "3" at the other extremity? (The witness marked “2” and “3” as directed.)

Q. Of what does the camera consist?-A. The camera consists of a light-type box with a lens at one end and a means for holding and advancing the film at the other end.

Q. Is that camera as contained in this imported merchandise a complete machine in itself or a complete camera in itself?—A. Yes, sir; it is a complete unit.

Q. What other component parts are there in the imported merchandise?—A. There is a projector.

Q. Will you mark that with the letters "4" and "5", please? (The witness marked "4" and "5" as directed.)

Q. What are the parts contained in the projector?-A. The projector contains a light-type housing and the lens in one end and a film-advancing unit at the other end.

Q. Is that a complete projector in itself?-A. Yes, sir.

Q. What other parts are contained in this machine besides those you have already described?-A. There is an illuminating source used in connection with the projector.

Q. Would you mark that "6"?-A. Yes. (The witness marked "6" as directed.)

Q. What other parts?-A. And a means for controlling the light on the projector.

Q. What do you mean by "controlling the light"?-A. Varying its intensity. Q. Would you mark that "7"? (The witness marks "7" as instructed.) Q. What other parts are there?-A. And an electric motor for driving the entire mechanism. * * * That is located within the base.

Q. Is it apparent in the picture?-A. The pulley and belt are in sight. * * (The witness marks this part of the apparatus with the number "8".)

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Q. Are there any other parts * *?-A. Those are the essential parts. * * There is a blower that is used to cool the lamp house down. There is a rotating prism, which is associated with the film-advancing means within the projector; and there is a mirror that receives the image from the projector, and which is photographed by the camera.

As to the use of this merchandise the witness testified: "It makes a copy of one film on another film of the same size." The method of accomplishing this result is as follows:

A developed, finished film is threaded into the projecting end of the machine, and by means of the light in the lamp house it is projected through the lens onto a mirror, and this image is received by a lens in the camera and recorded on an unexposed film that has been previously threaded into the camera.

It was further testified that the image placed on the unexposed film in the camera is an exact duplicate of the image which is run through the projector on the developed film, and the process employed in still photography when an enlargement of a photograph is made by means of an enlarging camera is "essentially the same as the one performed by this machine"; that the term "printing" as commonly used by people engaged in photography, covered "the process performed by the imported machinery"; and that the merchandise in question cannot be used for any other purpose than the printing of films.

The witness further testified that this merchandise as imported contained a source of light, a device for varying the intensity of that light, and an electric motor, which is consolidated in the base of the machine; but those devices are not either collectively or individually essential features of the machine, which "will work just the same without those refinements"; that the results obtained would be the same without them, but "you would simply lack speed"; that they are only used for speed.

The collector classified the main portion of the importation under paragraph 228 (b), Tariff Act of 1930, and assessed the same with duty at 45 per centum ad valorem, and stated that the same was "projection apparatuses and parts thereof." He classified the remaining portion, the tripod (which was covered by a separate entry), as "manufactures of metal" at 45 per centum ad valorem under the provisions of paragraph 397 of the same act.

The trial court held that the collector's classification in both entries was erroneous, and that the merchandise, illustrated by Exhibits A and B, was dutiable at 25 per centum ad valorem under paragraph

372 of said act as printing machinery, as claimed by the importer, and that the tripod was a part of a camera and dutiable at 20 per centum ad valorem under paragraph 1551 of said act.

The Government appealed here from said decision of the trial court, but here abandons its appeal as to the tripod. As to the machine exclusive of the tripod, the Government contends that it is dutiable under the provision "photographic or projection lenses

frames and mountings therefor, and parts of any of the foregoing in said paragraph 228(b), under which paragraph it was

classified by the collector.

The importer in its protest claimed said merchandise to be covered by and dutiable under paragraph 372 at 25 per centum ad valorem as printing machinery, or at 271⁄2 per centum ad valorem as "all other machines"; under paragraph 353, the electrical paragraph, at 35 per centum ad valorem; or under paragraph 1551 which provides for "photographic cameras and parts thereof, not specially provided for", at 20 per centum ad valorem.

The pertinent provisions of the paragraphs involved are as follows:

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.

PAR. 372. * * * printing machinery (except for textiles), bookbinding machinery, and paper-box machinery, 25 per centum ad valorem; * ** 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 * *

PAR. 1551. Photographic cameras and parts thereof, not specially provided for, 20 per centum ad valorem: Provided, That if the photographic lens is the component of chief value of the camera or of the part in which it is imported, such camera or part, including the photographic lens, shall be dutiable at the rate applicable to such photographic lens when imported separately; * *

In view of the fact that the dutiable status of the tripod is not a question to be decided here, we will hereinafter make reference to the machine without having the tripod in mind.

The Government, in support of its contention that the machine is dutiable under paragraph 228(b), relies upon the decisions of this court in the cases of United States v. Massce & Co., 20 C. C. P. A. (Customs) 210, T. D. 45993; American Holding Corp. et al. v. United States, 18 C. C. P. A. (Customs) 275, T. D. 44449; and United States v. Clay Adams Co., Inc., 20 C. C. P. A. (Customs) 285, T. D. 46078. This phase of the case seems to require first consideration.

We are not in accord with the assessment of the collector or with the view of the Government that the motion-picture reproducing