This is an appeal from the judgment and decision of the Customs Court, 61 Cust.Ct. 152, C.D. 3554 (1968), overruling appellant’s protest against the classification of merchandise imported by the appellee party-in-interest. The appellant is a competing American manufacturer who instituted the protest under 19 U.S.C. § 1516(b).
The United States and the importer are in agreement that the items should be classified as typewriters under TSUS Item 676.05,1 duty free. Appellant contends the classification should have been toys under TSUS Item 737.90,2 35% ad val.
The machines are described in the record as being able to write 84 characters, upper and lower case, and having three rows of keys with the letters arranged relative to each other as on a standard typewriter. One witness, an expert typist, said he was able to type 52 words on the machine in one minute. There is evidence that similar items were designed by appellant to sell for under twenty dollars.
The Customs Court overruled the protest on the grounds that the protester had not carried either of the two burdens of proof imposed upon him: to show by a preponderance of the evidence (1) that the items are not classifiable as typewriters; and (2) that the items were properly classifiable as toys. We find no reason to reverse the Customs Court.
*317It is well known in customs jurisprudence that the two burdens mentioned above are placed upon a protester because of the presumption of correctness which attaches to the collector’s classification. See Seagram & Sons v. United States, 30 CCPA 150, 157, C.A.D. 227 (1943); United States v. Gardel Industries, 33 CCPA 118, 121, C.A.D. 325 (1946); Bob Stone Cordage Co. v. United States, 51 CCPA 60, 65, C.A.D. 838 (1964).
To carry the second burden mentioned above the protester was obliged to show that the items in question were toys within the meaning of the Tariff Schedules. In Schedule 7, Part 5, Subpart E, headnote 2, we find the following definition : “For purposes of the tariff schedule, a ‘toy’ is any article chiefly used for amusement of children or adults.” (Emphasis in original.) The protester’s burden, therefore, was to show that the chief use of the items in question was amusement. This he attempted to do by introducing evidence that the items were unsuitable for office use, that they were unsuitable for formal instruction in typewriting, that the principal owners of similar items of the appellant were children, and that the only wholesale purchasers of these similar items were toy buyers. The appellee in interest introduced in evidence a “Petite Typewriter” with carrying ease and instructions, sold by the appellant. The defense also introduced the instructions accompanying one of the imported typewriters which had been introduced in evidence by appellant.
In weighing the evidence the Customs Court noted that “plaintiff’s own brochure * * * states: ‘youngsters can do homework, learn spelling, improve letter writing and neatness,’ none of which is deemed by the court as constituting amusement.” The court pointed out that while the evidence may have shown the chief users to be children, it did not show the chief use to be amusement, as required by the schedule.
Chief use is a question of fact. L. Tobert Co., Inc. v. United States, 41 CCPA 161, 164, C.A.D. 544 (1953). This court will not reverse the lower court on a question of fact except where the findings are without evidence to support them, or are clearly contrary to the weight of the evidence. United States v. F. W. Myers & Co., 45 CCPA 48, 52, C.A.D. 671 (1958); United States v. Charles Garcia & Co., 48 CCPA 140, 143, C.A.D. 780 (1961). In this case both a presumption and evidence operate to support the decision of the Customs Court, and we cannot say that the decision below was clearly contrary to the weight of the evidence. There was no evidence directly showing that the chief use of the imported merchandise, or of similar items, was amusement. The noncommercial uses by children could well be educational, even though the items are sold by toy dealers or in toy departments. We therefore must affirm the Customs Court’s holding that a chief use of amusement was not shown.
Since the appellant’s case failed on the second burden, we need not consider the issue of whether the items in question were typewriters.
The judgment is affirmed.
Affirmed.
. “Typewriters not incorporating a calculating mechanism: Non-automatic with hand-operated keyboard.”
. “Toys, and parts of toys, not specifically provided for: * * * Other.”