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such use is intended at the time of importation, the article is so used, and proof thereof is furnished within 3 years after the date the article is entered.

Since item 850.70 is not "a tariff classification controlled by the actual use," defendant's contention is without merit. The articles imported, in order to qualify for duty-free status, must be "imported for the use of an institution organized and operated for religious purposes." That requirement, however, does not pertain to the actual use or purpose of the articles, but only as to the class or type of institution that may use the importation. Item 850.70 does not speak of use within the intendment of general interpretative rule 10(e) (ii), but simply enumerates certain articles. In the language of customs law, item 850.70 is an eo nomine provision, i.e., one which describes an article of merchandise by specific name, and is not a classification provision which depends on actual use. See, e.g., the Wildermann case, which stated categorically that Congress provided eo nomine for shrines. 56 Treas. Dec. at 575. The question is whether the pinnacles constitute "appurtenances or adjuncts" of any one of the articles named in that eo nomine provision.

On the particular facts presented, the imported merchandise, the bronze pinnacles which constitute the crown of the Madonna, Queen of the Universe statue, are appurtenances or adjuncts of a shrine, an article specifically enumerated in tariff item 850.70.

In view of the foregoing, it is the determination of the court that the imported bronze pinnacles are entitled to duty-free entry under item 850.70 of the Tariff Schedules of the United States.

Judgment will issue accordingly.

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(C.D. 4800)

CONTINENTAL MANUFACTURING CO. ET AL. v. UNITED STATES

Trigger sprayers

Trigger sprayers claimed to be properly dutiable at 5 per centum ad valorem under item 662.50, TSUS, as modified by Presidential Proclamation 3822, T.D. 68-9, held properly subject to classification under item 662.35, TSUS, as modified, supra, as classified, as simple piston pump sprays.

The common meaning, in the absence of a commercial designation which differs from the common meaning, is controlling.

Common meaning of a tariff term is not a question of fact but a question of law to be determined by the courts. United States v. National Carloading Corp. et al., 48 CCPA 70, C.A.D. 767 (1961); Productol Chemical Co. v. United States, 74 Cust. Ct. 138, C.D. 4598 (1975).

Testimony of witnesses as to whether the sprayers are simple or complex is merely advisory and not binding on the court. Tropical Craft Corp. v. United States, 45 CCPA 59, C.A.D. 673 (1958).

Legislative history may not be utilized where the tariff term is plain and unambiguous. C. J. Tower & Sons v. United States, 41 CCPA 195, C.A.D. 550 (1954).

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Glad, Tuttle & White (Edward N. Glad and T. Randolph Ferguson of counsel) for the plaintiffs.

Barbara Allen Babcock, Assistant Attorney General (Bruce M. Mitchell, trial attorney), for the defendant.

FORD, Judge: Plaintiffs in these actions joined for trial contest the classification and assessment of duty of six models of trigger sprayers designated as models 922-H, 922-HJ, 922-C, CTS-4700, 5980-05, and 923-H. The sprayers were classified by Customs under item 662.35 of the Tariff Schedules of the United States, as modified by Presidential Proclamation 3822, T.D. 68-9, which provides for simple piston pump sprays. Duty was assessed thereon at the rate of 9.5 per centum ad valorem. It is the contention of plaintiffs that the sprayers are not "simple" and are, therefore, properly subject to classification under item 662.50, as modified, supra, which prescribes duty at the rate of 5 per centum ad valorem.

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