dissenting:
I respectfully dissent. I do not require the testimony of witnesses to enable me to determine as a matter of fact that the candlesticks or candelabra involved in this controversy are not per se illuminating articles, and there is nothing in this record which seems to me to justify the conclusion that they are something in law that they are not in fact. In my opinion, the articles are themselves witnesses quite sufficient, without more, to overcome the prima facie presumption of correctness which attaches to the collector’s classification.
The word “illuminating” obviously is used as an adjective and when applied to the term “articles” I think it carries the clear meaning that the article must be illuminating in and of itself.
It seems to me necessary, to a complete understanding of my views, to refer to paragraph 218 of the respective Tariff Acts of 1922 and 1930 and certain decisions thereunder.
The term, or phrase, “illuminating article” is used only once in *166those acts. According to a statement of this court in the case of United States v. Block & Co., 13 Ct. Cust. Appls. 5, 6, T. D. 40847, 47 Treas. Dec. 502, the provision for illuminating articles, which appeared in the Earths, Earthenware, and Glassware Schedule, was “new to tariff law” in the Tariff Act of 1922. It appeared there in paragraph 218 which was the forerunner of paragraph 218 of the Tariff Act of 1930. It was involved before us in the said Block & Co. case, supra, where decorated and colored blown-glass candlesticks, found to be chiefly used for decorative purposes, were classified by the collector under the clause in paragraph 218 of the 1922 act which clause was the forerunner of paragraph 218 (c) of the 1930 act, and were claimed by the importer to be classifiable under another clause of that act, which was the forerunner of paragraph 218 (d) of the 1930 act.
In the Bloch & Co. case, supra, this court approved the decision of the Board of United States General Appraisers (now the United States Customs Court) sustaining the importer’s protest. In the course of the court’s decision the following was quoted with approval from the decision of the board (now the court):
It is evident that the glass" candlesticks in question are used for decorative purposes and not for practical illuminating purposes. In fact, we doubt very-much if an ordinary glass candlestick used to hold a candle intended for practical lighting purposes would be an illuminating glass article, within the class of chimneys, globes, shades, and prisms enumerated in the statute. It would not aid in the lighting any more than would an ordinary glass bottle if a candle were placed therein, and a bottle is not an uncommon candle holder. While a chimney, globe, or prism might tend to increase or steady a light, and a shade to lessen it, the holder of a light such as a candlestick would have no such effect. A glass article to hold a light is not an illuminating article in the sense of diffusing, shading, lessening, or increasing light, which we think is the intention of the illuminating articles specified in paragraph 218. (Italics quoted.)
It should be borne in mind that an actual glass candlestick capable of use for holding a candle was involved there. That is to say, the candlestick was capable of use “in connection with artificial illumination.” The decision there turned upon the question of chief use; it was there held that the candlestick was not itself an illuminating article.
That decision was followed in principle in this court’s decision in the case of United States v. General Display Case Co., Inc., 21 C. C. P. A. (Customs) 542, T. D. 46796, which arose under paragraph 218 (c) of the Tariff Act of 1930 (19 U. S. C. sec. 1001, par. 218 (c)). No candlestick or candelabra was involved there, however. The merchandise consisted of cylindrical articles made of white, translucent cased glass about 12 inches in height and 8 inches in diameter. They had on them an advertising inscription in black and were designed to receive an electric light lamp. They were deemed by the collector to fall within the provision for globes and shades “for use in connection *167with artificial illumination” [Italics supplied by me], and be classified tbem under paragraph 218 (c), supra. The classification held applicable by the trial court in sustaining the importer’s protest and approved by the majority of this court, was under paragraph 218 (d) which reads:
(d) All glassware commercially known as plated or cased glass, composed of two or more layers of clear, opaque, colored, or semi-translucent glass, or combinations of the same, 60 per centum ad valorem.
In the course of our decision there we referred to our decision in the case of United States v. Wyle & Bros., 14 Ct. Cust. Appls. 297, T. D. 41910, 50 Treas. Dec. 545, which held certain glass bobeches, leaves, and other ornaments on chandeliers which emitted light only by reflection, classifiable under the clause in paragraph 218 which provided for articles used in artificial illumination, because they were chiefly used “in connection with artificial illumination.”
We also referred to our decision in the case of United States v. Koons, Wilson & Co., 15 Ct. Cust. Appls. 352, T. D. 42512, 52 Treas. Dec. 470, in which we affirmed the decision of the trial court holding certain urn-shaped black lamp bases which were not shown to be used “in such a manner as to pass, reflect, refract, disperse, color or otherwise effect the light for either practical or ornamental illuminating purposes,” to be properly assessable with duty at 55 per centum ad valorem under paragraph 218 of the Tariff Act of 1922, rather than at 60 per centum ad valorem under another clause of that paragraph.
I have not found any prior court decision where “candlesticks with candelabra branches and candelabra,” the description of the instant merchandise given by the trial court, have been held to be illuminating articles per se or illuminating articles “used in connection with artificial illumination.”
Assuming that glass candlesticks, etc. might properly be classifiable as “articles used in connection with artificial illumination” (I cannot conceive of their being properly classifiable as illuminating articles per se) because they may hold candles which do illuminate, it must be remembered that the phrase “for use in connection with artificial illumination” is found only in the Earths, Earthenware, and Glassware Schedule of the 1930 Tariff Act as enacted by Congress.
We have only metal articles, presumably provided for in the “Metals and Manufactures Schedule,” before us and I find no phraseology anywhere in the metal schedule of the 1930 act which is comparable to that relied upon in the glass schedule.
Paragraph 339 of the Tariff Act of 1930, as enacted by Congress, did not use the phrase “illuminating articles” nor any phrase having any similar meaning, nor is there any expression of use of any article “in connection with artificial illumination.” It appears, however, to have been injected into the paragraph in a Summary of Tariff Information, *1681948 edition, Yol. 3, Part 3, page 28, presumably used in formulating the General Agreement on Tariffs and Trade announced in T. D. 51802, 82 Treas. Dec. 305. By what authority it was injected, I do not know.
The paragraph makes reference to “electrical heating elements” but none to “illuminating articles.” Inasmuch as it does not make any such reference and does not provide for any articles used in connection with artificial illumination, I fail to perceive its relevancy to the issue here.
I am of opinion that the importer’s claim for classification under the phraseology in paragraph 339 which provides a duty assessment of only 25% ad valorem should be sustained.