Congress could have specified the precise extent to which the dressing of dead birds was to constitute dressing for tariff purposes. It did not do so. It chose to use a general descriptive term which included, in the common meaning of the term, more than the limited meaning for which defendant contends.

It is not entirely clear whether defendant relies on the fact that the heads and feet have been cut off, as the basis of a contention that the geese here are not whole birds and, therefore, are of the order of the meats and specialties contemplated by Congress in the provision for poultry, prepared, not otherwise specified. If so, we do not agree. Dressing, that is to say, preparation of the whole bird for cooking or table, may include removal of those parts not usually deemed edible, such as the head, feet, and offal.

One final point remains to be mentioned. Each of the parties argues that only the construction for which it contends will give significance and meaning to the statutory language; that, contrariwise, the other party's proposed construction would render the tariff provision "null and void, superfluous and redundant," as defendant's brief asserts. It is obvious that both of these positions cannot be correct. Indeed it is the responsibility of the court to give language a significant meaning, and not to interpret statutory language so as to make it nugatory. On the record before us, it appears that the narrow definition of the term "birds, dead, dressed, frozen," for which defendant argues, is a construction that would leave that tariff category not only substantially meaningless, but also at variance both with common meaning and trade practice.

The protest is sustained. Judgment will be entered accordingly.

(C.D. 2428)

J. E. BERNARD & Co., INC. v. UNITED STATES

Vitascopes-Not laboratory instruments—
Electrical articles-Torquay protocol

Certain devices, known as "Vitascopes," were classified by the collector of customs as scientific or laboratory apparatus, not specially provided for, in paragraph 360, Tariff Act of 1930, as modified. Plaintiff's contention is that said merchandise should properly have been classified as electrical articles in paragraph 353 of said act, as modified.

It appears from the record that the Vitascopes are devices principally used by seed dealers for the practical purpose of determining the germinating capacity of seed they contemplate buying or selling. Inasmuch as the Vitascopes are not used for laboratory purposes of experiment or study, they are not laboratory instruments. And since the mechanisms are not used in pure science, they are not scientific instruments. Held, on the agreed facts that

since the Vitascopes are composed in chief value of metal and possess as an essential feature an electrical element or device, said apparatus properly comes within the purview of paragraph 353 of the tariff act, as modified, as claimed by plaintiff.

United States Customs Court, Second Division

Protest 61/8677-11954 against the decision of the collector of customs at the port of Chicago

[Judgment for plaintiff.]

(Decided January 22, 1964)

Wallace & Schwartz (Earl R. Lidstrom and Joseph Schwartz of counsel) for the plaintiff.

John W. Douglas, Assistant Attorney General (Harold L. Grossman, trial attorney), for the defendant.

Before LAWRENCE, RAO, and FORD, Judges

LAWRENCE, Judge: Creative skill has given us a unique device known as a "Vitascope." It is not the Vitascope of earlier days which was used in the motion-picture industry. This new invention is a contrivance which, at the time of this trial, has been in use in this country for about 4 years.

The instrument is used for the purpose of determining the germinating properties of seeds, such as oats, rye, barley, et cetera, based upon what is known as the tetrazolium process. This will be described more in detail, infra.

as

The importation is referred to on the "SPECIAL CUSTOMS INVOICE"

Also included with the shipment were so-called accessories, consisting of a hydraulic vacuum pump for water tap, rubber hose for vacuum pump, sieve, a water tap connection, 6- and 100-watt lamps, a manual, splitting machine, 4 sample holders, and Vitascope powder.

A letter from the collector of customs transmitting the protest to the court states that the merchandise was classified in liquidation as "Scientific or laboratory apparatus nspf, other," in paragraph 360 of the Tariff Act of 1930 (19 U.S.C. § 1001, par. 360), as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and duty was imposed thereon at the rate of 2512 per centum ad valorem. From the foregoing, it would seem that the collector classified the Vitascope and accessories as one unit.

Plaintiff claims that the imported apparatus should be classified as an article in chief value of metal, having as an essential feature

an electrical element or device, within the provisions of paragraph 353 of said act (19 U.S.C. § 1001, par. 353), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, and dutiable at the rate of 1334 per centum ad valorem.

The parties have stipulated and agreed that the importation is in chief value of metal and that it has as an essential feature an electrical element.

The competing provisions of the statutes involved are here set forth.

Paragraph 360 of the Tariff Act of 1930, as modified by the sixth protocol, supra:

Scientific and laboratory instruments, apparatus, utensils, appliances (including mathematical instruments but not including surveying 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:

Slide rules **

Other (except analytical weights; balances; laboratory scales; laboratory instruments, apparatus, or appliances, for determining the strength of materials or articles in tension, compression, torsion, or shear; moisture testers; pyrometers; and parts of any of the foregoing) -- 251⁄2% ad val.

Paragraph 353 of said act, as modified by the Torquay protocol,

supra:

Articles having as an essential feature an electrical element or device * finished or unfinished, wholly or in chief value of metal, and not specially provided for:

Batteries

Other

1334% ad val.

John W. Wastcoat, the only witness in the case, testified on behalf of plaintiff. He stated that, for the past 5 years, he had been vice president of the Burrows Equipment Co. of Evanston, Ill., for whose account the merchandise was imported. He described his company as a small one, largely engaged as a selling organization. His familiarity with the Vitascope had been gained during the past 4 years "By studying it, working it, by selling it, by demonstrating it," having conducted at least 100 demonstrations. He gave the following description of the process by which it operates:

The Vitascope is based upon what is known as a tetrazolium process. This is a well known process in the seed industry, and basically it consists of taking a solution of what is known as triphenyl, tetrazolium powder, and when that comes in contact with the embryo of the seed, it releases enzymes, and if the seed is capable of germinating, it stains that embryo red, so that you can determine if there is a stain, the seed is capable of germinating. If there is no stain, it is not capable of germinating.

Depending upon the seed being tested, grains, such as oats or barley, can be tested in 10 minutes whereas, for some of the smaller seeds, it might require 40 minutes or an hour.

Prior to the introduction of the Vitascope, the standard or conventional method of testing seeds consisted of—

actually growing the seed under artificial conditions by inducing humidity and light, and having the seed grow. Now the benefit of the Vitascope is that you can get the same result in a very short time, and that is very valuable when you consider in the case of some seeds it takes up to 48 days to germinate. Wastcoat stated that there were approximately 75 Vitascopes in use in the United States; that, as exclusive distributor in this country, he knew the Vitascopes had been sold largely to small seed dealers and seed companies. Its selling price is $395. He had personally serviced the machines, demonstrating their use to purchasers. The first Vitascope was sold in this country to the Mississippi State University, which conducts what is known as a "seedman's short course, and they get people from the company and try to improve their knowledge, ** they asked us to demonstrate it for the seed trade, and at that time we sold two of them." The machines have been sold mostly throughout the Middle West, since that is where, principally, the seeds are grown and where most of the seed dealers are located. The witness described the users of these Vitascopes as "very small operators. Some of them wouldn't know what a laboratory was." Of the 75 machines being used in the United States, the witness stated that not more than half a dozen were used in laboratories of state colleges.

The witness explained that a seed dealer would take a Vitascope along to visit his clients from whom he regularly bought seeds and would make tests of the seeds on the spot.

On cross-examination, defendant introduced a pamphlet, entitled "VITASCOPE, INSTRUCTION MANUAL, A/S Foss Electric" (defendant's exhibit A), describing the subject merchandise; also a leaflet, marked defendant's exhibit B, issued by the Burrows Equipment Co., containing material descriptive of the Vitascope and its uses.

As has been stated, supra, the collector of customs classified the Vitascopes in issue within the broad provision for "Scientific or laboratory apparatus nspf, other," in paragraph 360 of the Tariff Act of 1930, as modified by the sixth protocol, supra. Plaintiff, through the testimony of Witness Wastcoat, seeks to establish the collector's classification to be incorrect and that the merchandise should properly find classification as electrical articles in paragraph 353 of said act, as modified by the Torquay protocol.

On the question of whether or not the imported articles are laboratory apparatus for customs duty purposes, plaintiff, both at the

trial and in its brief, endeavors to prove they are not such devices, for the reason that of the 75 Vitascopes in use in this country not more than 6 of them are used in laboratories, placing the accent of its proof on the place of use.

In the case of R. J. Saunders & Co., Inc. v. United States, 45 CCPA 87, C.A.D. 678, our appellate court considered at some length the provision for "laboratory instruments" in paragraph 360 of the Tariff Act of 1930 and was there of the view that

the test for compliance with the term "laboratory instruments" is use for laboratory purposes.

It is for the court to determine, therefore, on the evidence presented, whether or not the instant Vitascopes are used for laboratory purposes.

In the case of The A. W. Fenton Co., Inc. v. United States, 49 Cust. Ct. 242, Abstract 67085, this court had occasion to rely on the Saunders case, supra, in determining the proper classification of a beat frequency oscillator, a high speed level recorder, and a db potentiometer, used to measure the ability of electrical or acoustical devices to respond to audio frequencies. It was there held that said importation consisted of electrical articles of the kind provided for in paragraph 353 of the tariff act, rather than as laboratory instruments within the provisions of paragraph 360 of said act. In arriving at its decision, the court found on the evidence presented that the devices there in issue were used for practical commercial purposes and not for a laboratory use in experiment or study.

The record discloses that the sole function of the Vitascope is to provide a means of rapid determination of the germinating quality of grain seed. The record further discloses that the instant Vitascopes are chiefly used by seed dealers for the commercial purpose of determining the quality of the seed they intend to buy or sell.

The court is of the opinion, therefore, that, since the devices in controversy are used principally by seed dealers for the practical purpose of determining the germinating capacity of seed they contemplate buying or selling and are not devoted to purposes of experiment or study, they are not laboratory instruments in a tariff sense.

Classification of the Vitascopes in issue was in the alternative of "Scientific or laboratory apparatus nspf, other." Having decided that the instant devices are not laboratory instruments, we must give consideration to their classification as scientific instruments. For an article to be classified as a scientific instrument, said device must be used in pure, as distinguished from applied, science. W. L. Conover v. United States, 17 CCPA 324, T.D. 43743.