GisseNtiNG Opinion
Eao, Chief Judge:For the reasons stated below I am not in accord with the holding that the machine involved herein is properly classifiable as a metal-working machine tool under item 674.35 of the Tariff Schedules of the United States.
The headnote to schedule 6, part 4, subpart F, defines a machine tool as any machine used for shaping of surf ace-working metals and other named materials “whether by cutting away or otherwise removing the material or by changing its shape or form without removing any of it.” In explanation of this provision, the Tariff Classification Study states (schedule 6, p. 271) :
Headnote 1 defines the term “machine tool” more broadly than it is defined in the present provisions of paragraph 372 where it is defined as “any machine operating by other than hand power which employs a tool for work on metal”. Under the proposed definition the term would apply not only to metal-working tools but also to machines used for shaping or surface-working stone, ceramics, concrete, asbestos, cement, and like mineral materials, glass in the cold, wood, cork, bone, hard rubber or plastics, or other hard materials. These latter machine tools are significant articles of trade and it is desirable to have a separate provision therefor in the proposed schedules. [Emphasis supplied.]
The machine involved herein produces foil capsules for bottles by cutting out pieces of aluminum foil, applying a line of glue, and folding the foil in stages around a- mandrel. According to the testimony it does not remove metal or produce chips or cut and carve out metal. It could not be used to make another machine. It can operate only on thin aluminum foil, which the witness called “dead soft”. It does not change its shape or form permanently.
While the reference to “hard materials” in the Tariff Classification Study, supra, is made in connection with materials other than metal, it is an indication that in using the word “metal” Congress had in mind metals in the form of hard materials and not foil. Metal leaf and foil are provided for in the tariff schedules separately in the *220portion of the metal schedule which covers “Metal Products” (part 3) rather than under the portion which covers “Metals, Their Alloys, and Their Basic Shapes and Forms” (part 2).
While it is clear that the definition of machine tools in the tariff schedules has been broadened from that in previous tariff acts to include machines which work on materials other than metal, in view of the meaning long given to the term “machine tools” under prior tariff acts, it is doubtful that Congress intended it to include “any tool which changes the shape, size, or even the position of a piece of metal in any manner and for any purpose.” United States v. Kurt Orban Co., Inc., 47 CCPA 28, 30, C.A.D. 724 (1959).
In the case cited it was held that a scrap baler which compressed metal scrap and sheared off the edges of the bale was not a machine tool. That case was referred to in hearings before the Tariff Commission when the proposed tariff schedules were being prepared, at which time the Assistant General Counsel stated (Tariff Classification Study, Schedule 6, p. 649):
Mr. Shewmaker. I can assure you on your last question relating to machine tools that we do not contemplate when we speak of a machine used for shaping or surface work that we would be treating with anything such as a scrap baler.
We are not intending to put a scrap baler into the provisions for machine tools.
Another indication of the type of machine Congress meant by the term “machine tool” is found in the articles specifically listed under “machine tools” in the tariff schedules, namely, machines for cutting or bobbing gears, boring, drilling, and milling machines, turret lathes, and reciprocating gang-saw machines.
In Pitney-Bowes, Inc. v. United States, 59 Cust. Ct. 181, C.D. 3116, 273 F. Supp. 403 (1967), appeal dismissed 55 CCPA 115 (1967), this court h'ad occasion to consider the meaning of the definition of machine tool in the tariff schedules. In the course of the opinion reference was made to descriptions and lists of machine tools which appeared in the Summaries of Tariff Information of 1921, 1929, and 1948, and in the explanatory notes to the “Nomenclature for the Classification of Goods in Customs Tariffs” (the “Brussels Nomenclature”). After considering these sources and the testimony of witnesses who had had extensive experience in the machine tool field, it was held than an embossing machine which impressed letters or characters into a metal plate was not a machine tool. The court stated (pp. 193-194):
We conclude that when all the language referring to metalworking machine tools in subpart F, part 4, of schedule 6, is considered as a whole, a construction which would result in holding the embossing machines before us to be machine tools would not be in harmony with the intent of Congress. It would *221not be in accord with the long-time meaning given to the term “machine tools” by those experienced in the field or by the authorities cited. We think it quite clear from the sources used by the Tariff Commission in drawing up the definition in headnote 1, the material in the Tariff Classification Study, and the language of the subpart as a whole that there was no intention to so broaden the meaning of the term “machine tool” as to take in all machines which in any way change the shape or form of metal regardless of their capability of shaping or surface-working, as those terms are understood in the field, or of producing other machines or parts of machines, or of their being industrial equipment and regarded by those in the field as machine tools.
A re-examination of the authorities and sources referred to in the above opinion discloses that the instant machine does not fall within any of the categories mentioned, which include lathes, milling, drilling and boring machines, forging, stamping, and die-stamping machines, metal-working presses, extruding presses, riveting machines, swaging machines, shearing, punching and notching machines, and machines for drawing wire. The only type bearing a resemblance to the machine here involved is described in the explanatory notes to the Brussels Nomenclature (vol. Ill, p. 882) as “Plate or sheet working machines, including machines for flattening, bending, shaping (including spinning lathes), corrugating, folding (including folding together and squeezing the edges of sheets to join them), etc.” However, “plate and sheet” are hard metals whereas the instant machine operates only on soft metal foil. Therefore, it does not belong in the category of plate and sheet working machines.
Even assuming that the instant machine fits literally within the definition of machine tools in the tariff schedules, it is not necessarily so classifiable. It is not unusual to hold that a tariff term does not include everything that literally falls within that term, where the context or other circumstances indicate the contrary. United States v. Andrew Fisher Cycle Co., Inc., 57 CCPA 102, C.A.D., 986 (1970), and cases cited.
In view of all the foregoing, I am of opinion that the instant machine is not a machine tool within the intent of Congress. I would sustain the claim for classification under item 678.50, as a machine not specially provided for.