dissenting.
I would affirm the judgment below. Neither the text alone of the TSUS Item 912.20 nor the dictionary definition resolve the question of whether the unit, or “single thing,” is the individual plastic figure or the package in which the figures are sealed abroad for importation and subsequent domestic sale without alteration of the package. Furthermore, the legislative history as to the definition of the word “unit” is sparse and inconclusive. Nor does the classification on Mattel’s invoice, that some of the toy figures are inanimate representations (even “imaginary and hybrid”) and some animate, a classification later recognized by Customs after it declined to permit duty-free importation under 912.20, serve to resurrect, like Lazarus, the MUSCLEmen as distinctly separate legal entities. In my view, however, the policy and purpose of the statute is unmistakable: to permit the duty-free importation of quite inexpensive toys, the kind that are sold individually in coin vending machines.1 Every child and parent knows them well. In sum, can it be stated unblushingly that Congress intended packaged toys valued at more than 5 cents each, such as each of the packages of MUSCLEmen in this case, to be imported duty-free, as will be the result *1120under the majority opinion? Upon prevailing here, Mattel will be free to include in its retail units as many figures or plastic pieces as it chooses, regardless of the amount over 5 cents the consumer will be charged for the unit. While not dispositive of the outcome here, there is evidence of one imported MUSCLEmen unit valued at $23.76.
In my view Mattel, by choosing to import the articles already packaged in sealed units of multiple items for retail sale, has defined the unit upon which the U.S. Customs Service must assess a duty according to the appraised value at entry. Mattel should only receive the benefit of Item 912.20 by choosing to import the plastic pieces individually or in bulk and having them packaged in retail units within the United States customs territory. Congress recognized that “items in the same price and quality range are not domestically produced,” S.Rep. No. 97-564, 97th Cong.2d Sess., reprinted in 1982 U.S.Code Cong. Admin.News 4078, 4084 (emphasis added), but we may not presume that Congress also intended Item 912.20 to subsidize the foreign packaging industry. The majority does so, with its sub silentio addition of “or packaged” to the Senate Report.
Finally, “the principle is so basic that it hardly needs to be mentioned,” Simod America Corp. v. United States, 872 F.2d 1572, 1577 (Fed.Cir.1989), that an article’s classifiable “status must be determined upon the basis of its condition as and when imported.” Kurtz Importing Co. v. United States, 420 F.2d 746, 748 (CCPA 1969) (emphasis added; citing Hecht Pearl Co. v. United States, 18 C.C.P.A. (Customs) 171, 175 (1930)). Here, the imported goods are not individual figures of less than 5 cents value; instead, the goods as and when imported are already assembled in thematic retail packages. We are instructed by Si-mod, 872 F.2d at 1578, that “samples of the merchandise ... are most potent witnesses.” Marshall Field & Co. v. United States, 45 C.C.P.A. (Customs) 72, 81 (1958). Plaintiff’s Exhibit 2 demonstrates that the MUSCLEmen are packaged so as to be used together in “slugfests in the streets! Free-for-alls on the freeways! Brawls in the malls!” or within a “HARD KNOCKIN’ ROCKIN’ RING” which requires a minimum of two MUSCLEmen (imported value 9.4 cents) to use.
The responsibility of the Department of the Treasury is to protect the public fisc, Thor Power Tool Co. v. Commissioner of the Int. Rev. Serv., 439 U.S. 522, 542, 99 S.Ct. 773, 786, 58 L.Ed.2d 785 (1979), and we owe a substantial measure of deference to the expertise of the Customs Service when determining whether an importer has carried its statutory burden of proof of overcoming a classification decision. 28 U.S.C. § 2639(a)(1) (1988); Simod at 1576.
For these reasons, I respectfully dissent.
. “This provision would affect low price, low quality items sold primarily in bulk vending machines.” S.Rep. No. 97-564, 97th Cong.2d Sess., reprinted in 1982 U.S.Code Cong.Adm.News 4078, 4084.