Plaintiffs’ two protests listed in tbe annexed schedule have been consolidated for the purposes of trial and determination. They relate to merchandise described on the invoices as “Sparking Machine Tool EleROda I). 1.”
The collector of customs classified the merchandise in paragraph 372 of the Tariff Act of 1930 (19 U.S.C. § 1001, par. 372), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, as “machine tools,” which Congress in said paragraph defines as “any machine operating other than by hand power which employs a tool for work on metal.” Duty was imposed thereon accordingly at 15 per centum ad valorem.
It is the contention of plaintiffs that said machines are not embraced by the statutory definition of machine tools above quoted and, therefore, are properly classifiable in 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, as articles having as an essential feature an electrical element or device, which are subject to duty at the rate of 13% per centum ad valorem.
The pertinent portions of the statutes involved herein are as follows:
Paragraph 372 of the Tariff Act of 1930:
* * * machine tools, * * *: Provided further, That machine tools as used in this paragraph shall be held to mean any machine operating other than by hand power which employs a tool for wort on metal.
Paragraph 372 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, supra:
Machine tools (except jig-boring machine tools)-15% ad val.
Paragraph 353 of the Tariff Act of 1930, as modified 'by the Torquay protocol, supra:
Articles having as an essential feature an electrical element or device, such as electric motors * * * finished or unfinished, wholly or in chief value of metal, and not specially porvided for:
Batteries_* * *
Other * * * _13%% ad val.
The record herein consists of the testimony of Frank Jaques, called on behalf of plaintiffs, and John S. Darkens, Jr., O. Bruce Minturn, and Warren A. Lipman, called on behalf of the defendant, as well as a number of exhibits.
An analysis of the record clearly indicates that the involved sparking machine tools can perform the functions of and can replace so-*83called conventional machine tools, such as drilling machines, milling machines, broaches, hole broaches, shapers, lathes, and so forth. The record with equal clarity establishes that said imported machines perform the function of removing metal by use of an article such as exhibit C. Exhibit C is an electrode or tool designed in the shape or form of the hole or work to be performed, but does not have physical contact with the metal upon which the work is being done. The operation of said article in performing such work is done by the use of electrical voltage. A brief description of the operation was given by the witness Minturn as follows:
Q. Would you explain to the Court how Exhibit C is used in such a machine? — A. This tool is mounted in the equipment, and we read a gap voltage reference, voltage between the tool and the work, and in this case there was a hole put in the work prior to this operation, which allowed dielectric oil to be forced through so that you could wash the material which had been disintegrated away from the cavity, or the hole, being eroded. The end of the tool shows the amount of erosion which has taken place, on the end of the tool, and at the same time the amount of work, the amount of materials being removed, or similar amount, from' a piece of steel below, as it penetrated through.
This tool is made in two sections. There is a roughing section, which is undersized, under the finished size, which is the back portion, and it allows a higher power to be turned on, and a faster removal of the material. After it has passed through the roughing section, the power is then cut back with a proper amount of over-cut, so that the spark distance is less, and we then finish the hole to the size required with the finishing section of the electrode.
Judge Laweence: In that operation, does metal operate on metal by direct contact?
The Witness: There’s no actual direct contact. It varies, actually, from tenths, up to seven- or eight-thousandths, depending on your setting.
Judge Laweence : Is it the force of electricity that does the work?
The Witness : It is a spark coming out from this tool removing a globule of metal on the workpiece.
The issue thus presented to the court is whether the involved merchandise is encompassed by the definition of “machine tools” set forth in paragraph 3†2 of the Tariff Act of 1930, supra. There appears to be no question that the imported merchandise does fall within at least the first portion of said definition, to wit, “any machine operating-other than by hand power.” The question of whether the machine involved herein “employs a tool for work on metal” further narrows the issue.
Plaintiffs, in their brief, contend that the present article does not fall within the foregoing definition because of the following differences:
1. Conventional machine tools rely on direct physical contact between the workpiece and the tool. There is no direct physical contact whatsoever between the “tool” electrode of a spark erosion machine and the workpiece.
2. Conventional machine tools operate by an abrading or tearing to effectuate mechanical removal of the metal of the workpiece. Spark erosion ma-*84cbinery operates on a principle called, “basic thermal shock”, the exact nature of which is subject to varying explanations.
3. In the standard, conventional machine tool, the tool component must be harder than the workpiece, otherwise the workpiece will wear away the tool faster than the tool can wear away the workpiece. In spark erosion machinery, there is no requirement that the “tool” electrode be harder than the workpiece, because of absolute lack of mechanical contact.
Defendant, on the other hand, contends that the difference between the so-called conventional machine tools and the electrical discharge machine tools is not in their purpose, use, or finished product, but in the manner in which they work on metal, the former having physical contact, while the latter produces the same result using an electrical contact.
If this were a case of first impression, we would be inclined to hold the subject merchandise properly classifiable as a machine tool within the purview of paragraph 372 of the Tariff Act of 1930, as modified. However, the decision of our appellate court in Keith Dunham Co. v. United States, 26 CCPA 250, C.A.D. 24, dissuades us from such a conclusion. Before the court in the Keith Dunham case was an electrically driven device, invoiced as an “oxygen jet hand cutting machine” or a “secator” and parts thereof, consisting of an electric motor, a tachometer, a rheostat, and other essential parts, including a torch, w'hich, when fully assembled, was used for the purpose of cutting metal plate on a predetermined line by means of an oxy-acetylene flame.
It was the opinion of this court (Keith Dunham Co. v. United States, 73 Treas. Dec. 721, T.D. 49532) that a secator was a machine tool, as that term is defined in the statute (paragraph 372), and that it also was a portable tool containing an essential electrical feature (paragraph 353). The trial court concluded, however, that since the congressional definition of a machine tool is “* * * any machine operating other than by hand power which employs a tool for work on metal,” and there being no such limitation on portable tools provided for in paragraph 353, the provision in the latter paragraph for portable tools having as an essential feature an electrical element or device was the more specific provision.
The appellate court affirmed the judgment of the court below but upon quite different grounds. It agreed with the trial court in finding that a secator was a “machine” “* * * since it is clearly shown by the record to be a mechanical contrivance which utilizes electric energy for the transmission of motion. Simon, Buhler & Baumann v. United States, 8 Ct. Cust. Appls. 273, T.D. 37537; United States v. Janson Co., 16 Ct. Cust. Appls. 315, T.D. 43075.”
The court of appeals found that the meaning of the statutory definition of machine tools in paragraph 372, supra, was not free from *85ambiguity and resorted to the history of the tariff act to aid in its determination of the question before it. After doing so, the court said “We believe that if the Congress had intended machine tools to include a power-driven machine employing a flame spraying blowtorch for work on metal it would have so expressed itself.”
Further, the court said “The ‘secator’ might well be a machine tool in the common acceptation of that term. It is a machine and both litigants agree that it is a tool. Therefore, it is a machine tool as that term is ordinarily used. But Congress has specifically defined a machine tool in paragraph 372, sufra. As we have previously pointed out, the ‘secator’ is not a machine tool within the definition set out by the Congress.”
Applying the rationale of our appellate court in the Keith Dunham, case to the factual situation before us, we find that the sparking machine tool covered by the instant importation is designed to perform work on metal without having physical contact with it, as was the fact with the secator in the Keith Dunham case. In one instance, the operation of the device is performed through the medium of an electrode while, in the other, an oxy-acetylene blowtorch is the cutting medium. It follows, therefore, that the sparking machine tool in issue is not a machine tool of the kind provided for in paragraph 372 of the Tariff Act of 1930, as modified, supra, as classified by the collector of customs.
From the record before us, it stands unrefuted that an electrode, such as exhibit C herein, powered by electric voltage, is essential to the functioning of the sparking machine tool in issue.
Accordingly, the imported merchandise comes within the purview of the provision for articles having as an essential feature an electrical element or device in paragraph 353 of the Tariff Act of 1930, as modified, supra, for which duty at the rate of 13% per centum ad valorem is provided, as alleged by plaintiffs. The claim in the protests to that effect is, therefore, sustained.
Judgment will issue accordingly.