The proper dutiable classification of certain items consisting of sewing kits in chief value of metal, each containing six spools of cotton sewing thread, one thimble, and two hand sewing needles, encased in a round box with a mirror on the inside of the cover and a pincushion on the top of the cover, is the subject of this controversy. The box is approximately 2/ inches in diameter and an inch deep, having a cardboard bottom and lining, the outer circumference of the box and the rim of the cover being substantially reinforced with metallic bands.
The collector of customs regarded the merchandise as entireties and classified it as “articles or wares not specially provided for,” composed of metal, within the purview of paragraph 397 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 397), and assessed duty thereon at the rate of 45 per centum ad valorem.
By its protest and amendment thereto, plaintiff claims in the alternative that the merchandise, as entireties, is properly dutiable at 40 *34per centum ad valorem as household utensils within "the scope of paragraph 339 of said act (19 U. S. C. § 1001, par. 339); or that the component items should be separately classified as follows: The needles free of duty in paragraph 1724 of said act (19 U. S. C. § 1201, par. 1724); the thimbles at 40 per centum ad valorem in paragraph 339, supra) the cotton sewing thread at one-half of 1 cent per hundred yards, but not less than 20 nor more than 35 per centum ad valorem, in paragraph 902 of said act (19 U. S. C. § 1001, par. 902); and the container as the usual container, the value thereof to be prorated among the individual values of each item in the sewing kit.
The provision in paragraph 339, supra, invoked by plaintiff reads, so far as material here, as follows:
* * * household * * * utensils, * * * not specially provided for: * * * composed wholly or in chief value of copper, brass, steel, or other base metal, not plated with platinum, gold, or silver, and not specially provided for, * * *.
Inasmuch as reference will be made herein to paragraph 343 of said act (19 U. S. C. § 1001, par. 343), the portion thereof pertinent to this discussion is here set forth:
* * * needle cases or needle books furnished with assortments of needles or combinations of needles and other articles, * * *.
Two witnesses testified in the case, both of whom were called by the plaintiff. From their testimony, it appears that the needles, thread, and thimble contained in the sewing kits are used in the home and, after the contents of the case have served their purpose, the container is discarded.
Plaintiff in its brief states that “The case at bar is identical to the case of Levin Bros. v. United States, 11 Cust. Ct. page 74, C. D. 797, * * *.” A comparison of the facts in the Levin case with those in the case at bar scarcely sustains the claim that they are “identical.” It appears from the opinion of the court in the Levin case that the merchandise therein consisted of a cardboard box having a cellophane opening in the top and containing two needles, one thimble, and five cardboard cylinders upon which cotton thread had been wound and, because of its flimsy construction, the court was of the opinion that the box did not respond to the definition of a “case” within the meaning of paragraph 343 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 343), which provides for needlecases or needlebooks furnished with assortments of needles or combinations of needles with other articles.
In the case before us, however, the container of the needles, thimble, and thread, together with the mirror and pincushion, is of a substantial nature, being constructed in part of metal and, according to the evidence before us, it survives the use of its contents, whereas in the Levin case the contents were removed before they were put to use and the container destroyed.
*35Because of the fugitive nature of the container in the Levin case, this court held that the combined article was not dutiable as an entirety as a needlecase, but that the respective items were subject to separate classification, the needles being free of duty, as provided in paragraph 1724, supra; the thimbles as household utensils, provided for in paragraph 339, supra; and the thread as eo nomine provided for in paragraph 902, supra.
An authority more nearly in point, it seems to us, is the case of United States v. Poirier & Lindeman, 6 Ct. Cust. Appls. 239, T. D. 35470. The opinion of the court gives the following description of the merchandise:
The typical exhibit in the case is a cylindrical box about 2}4 inches long and a little less than 1 inch in diameter fitted at one end with a cap or cover. It contains a celluloid thimble and a hollow celluloid bobbin upon which thread is wound. The bobbin is also fitted with a cap, and within it two pins and two needles arc inclosed. So made up it is concededly celluloid in chief value, the celluloid of course being a manufacture of pyroxylin.
But the court was of the opinion that the goods in that case were properly classifiable in paragraph 135 of the Tariff Act of 1913 as needlecases furnished with assortments of needles or combinations of needles with other articles. The Government contended that, while the cylindrical boxes with their contents might properly be designated as sewing sets, they were not needlecases within the meaning of said paragraph 135. The court answered this argument by saying, “There is no good reason why these boxes may not appropriately be called ‘cases' and, as they are furnished in the manner specified in the paragraph, they become needlecases as that term is therein employed.”
It may also be noted that in United States v. Cross Co., 10 Ct. Cust. Appls. 58, T. D. 38335, small wooden boxes (among other things), 3 inches long, 1% inches wide, and 1% inches deep, fitted with two spools of thread and a paper folder of needles, were held to be properly classified as needlecases within the provisions of paragraph 135 of the Tariff Act of 1913.
We think the facts of the Poirier case, supra, provide a close analogy to the facts in the present controversy; and, applying the reasoning of the court in that case, we are of the opinion that the importation before us is properly classifiable as needlecases or needlebooks furnished with assortments of needles or combinations of needles with other articles, in accordance with the terms of paragraph 343 of the Tariff Act of 1930. This claim, however, is not contained in the protest, doubtless because it prescribes the same rate of duty as was assessed herein by the collector of customs.
It is noted that defendant states in its brief that “The record shows that the articles at bar are chiefly used in the household”; that “The component material in chief value of the said articles is presumed to *36be metal, they having been classified under paragraph 397”; and that “Therefore, their proper dutiable status should be under paragraph 339 at 40% ad valorem as household utensils.”
Granting, arguendo, that the articles may be, in fact, household utensils, which is conceded by the defendant; that the provision for household utensils is a so-called “use provision”; and that a use provision has been held to prevail over certain eo nomine descriptions (United States v. Snow’s United States Sample Express Co., 8 Ct. Cust. Appls. 351, T. D. 37611), nevertheless, it is but a rule of construction which must yield to the intent of Congress otherwise expressed.
In the Tariff Act of 1909, Congress for the first time provided in paragraph 164 for “needle cases or needle books furnished with assortments of needles or combinations of needles and other articles,” which articles were subjected to duty as entireties according to the component material of chief value therein. This provision was continued in paragraph 135 of the Tariff Act of 1913, except that a specific rate of duty was provided. The Tariff Acts of 1922 and 1930, in paragraph 343 thereof, repeated the quoted provision verbatim, the only change being in the rate of duty provided.
Throughout four tariff acts, therefore, Congress has specifically provided for “needle cases or needle books furnished with assortments of needles or combinations of needles and other articles.” As indicated above, our appellate court in the Poirier & Lindeman case held that the merchandise there involved, as described, supra, answered the call of the provision in the Tariff Act of 1913 for “needle cases * * * furnished with assortments of needles or combinations of needles and other articles.” With this interpretation of the statute, Congress in 1922 and again in 1930 reenacted the provision for needlecases without change. In paragraph 339 of the Tariff Act of 1922 Congress for the first time provided for household utensils, not specially provided for, clearly indicating that there might be some household utensils which were otherwise provided for, and we think that the repeated provision in the last four tariff acts for “needle cases or needle books furnished with assortments of needles or combinations of needles and other articles” is very persuasive of the intention of Congress not to invade that classification by the provision for household utensils. To hold otherwise would, we believe, render the provision for needlecases, paragraph 343, supra, practically inoperative.
The following cases lend support to the conclusion we have reached herein.
In United States v. Pfaltz & Bauer (Inc.) et al., 16 Ct. Cust. Appls. 358, T. D. 43091, the question presented was whether a product known as “alsimin,” in chief value of aluminum and used as an alloy in the manufacture of steel, was more specifically provided for in the pro*37vision reading “ alloys of any kind in which aluminum is the component material of chief value, in crude form,” than in the provision for “all alloys used in the manufacture of steel not specially provided for.”
Upon this precise question, the court said:
We think the provision for “alloys of any kind in which aluminum is the component material of chief value, in crude form,” more aptly provides for the merchandise than “all alloys used in the manufacture of steel, not specially provided for,” notwithstanding the application of the doctrine of use and giving it its full force and effect. It will be noted that in the latter provision are the words “not specially provided for.” An alloy of which aluminum is the component material of chief value in crude form is specially provided for in paragraph 374 and the force of the doctrine of use can not overcome the clear indication of Congress to specially provide for aluminum alloys in paragraph 374. [Italics quoted.]
In United States v. John H. Faunce (Inc.) et al., 21 C. C. P. A. (Customs) 80, T. D. 46395, certain Fresnel lenses, used chiefly in lighthouses and to some extent as course lights in aviation, which were classified within the provision for “illuminating articles of every description, * * * for use in connection with artificial illumination,” were held to be properly dutiable as “lenses.”
In arriving at its conclusion, the appellate court stated:
The phrase “illuminating articles” may have a suggestion of use, but the legislature was not satisfied with this designation alone and further provided “used in connection with artificial illumination,” which made it a very particularly described use. We think this provision should be regarded as quite specific when applied to any article which comes clearly within its scope, when the whole context of the same is considered. This fact, however, is no warrant for invading certain other specific paragraphs and drawing into the illuminating glassware paragraph articles which are only technically provided for therein, if provided for at all.
A recent case decided by this court from which no appeal was taken is Morilla Co., Inc. v. United States, 27 Cust. Ct. 210, C. D. 1372, wherein it was held that the eo nomine provision for “handmade paper” more specifically provides for handmade drawing paper than a use provision for “drawing paper.” We there recognized the principle that a designation by use of a named article is more specific than an eo nomine or descriptive provision therefor. However, it was pointed out that it is a rule of construction which, though compelling, can not be applied if there is evidence of a legislative intent to the contrary. The facts in the Morilla case, supra, provided such an exception to the generally controlling effect of a designation by use.
Reference also is made to the case of Davies Turner & Co. v. United States, 27 Cust. Ct. 263, Abstract 55708. The importation there involved consisted of steel chains, used for the transmission of power, of not more than 2-inch pitch, containing more than three parts per pitch, and valued at not less than 40 cents per pound, which brought the articles clearly within the use provision in paragraph 329 of the Tariff *38Act of 1930 (19 U. S. C. § 1001, par. 329), as modified by the trade agreement between the United States and the United Kingdom, 74 Treas. Dec. 253, T. D. 49753, relied upon by plaintiff, for—
Chains of iron or steel, used for the transmission of power, of not more than two-inch pitch and containing more than three parts per pitch, and parts thereof, finished or unfinished, all the foregoing if valued at not less than 40 cents per pound * * *
The merchandise likewise answered the call of the provision in paragraph 371 of said act (19 U. S. C. § 1001, par. 371) for parts of bicycles, as classified by the collector, in that the chains were ordered to specification for use on bicycles; were exclusively used in the assembly or manufacture of bicycles; and were essential and constituent parts of bicycles. This court, guided by legislative intent, overruled the plaintiff’s claim and sustained the collector’s classification. Upon appeal to the Court of Customs and Patent Appeals, the decision of the trial court was affirmed on March 11, 1953 (40 C. C. P. A. (Customs) 193, C. A. D. 517).
As in the cases above cited, so too in the present case, we are of the opinion that there is clear-cut evidence that it was the congressional intent that the context of paragraph 343, supra, wherein there is provision for “needle cases or needle books furnished with assortments of needles or combinations of needles and other articles” should not be invaded by the provision in paragraph 339, supra, for “household * * * utensils * * * not specially provided for” and that there here exists another exception to the general rule that a designation by use will ordinarily prevail over an eo nomine provision.
Upon the record in this case, for the reasons stated, and following the authorities cited, the claims in the protest are overruled without affirming the action of the collector.
Judgment will issue accordingly: