The opinion
DISSENTING OPINION
BeckwoRth, Judge:
On the basis of the record presented, I regretfully dissent from the view of my colleagues that the evidence has established that the machines involved herein are not essentially electrical.
All of the items were classified by the collector as articles having as an essential feature an electrical element or device, or parts thereof, and were assessed with duty under paragraph 353 of the Tariff Act of 1930, as modified. It is presumed that the collector found all of the facts necessary to sustain that classification. E. I. du Pont de Nemours & Co. v. United States, 27 CCPA 146, 149, C.A.D. 75.
It is well settled that if an imported article is so constructed as to be operable solely by means of electrical power, it has as an essential feature an electrical element or device. United States v. Dryden Rubber Co., 22 CCPA 51, T.D. 47050; United States v. Baker Perkins, Inc., et al., 46 CCPA 128, C.A.D. 714. It has also been held that an electric motor is not an essential element if the machine is so designed and constructed that it may, without substantial modification, be interchangeably operated by other power. Ralph C. Coxhead Corp. v. United States, 22 CCPA 96, T.D. 47080. Presumably, the collector found that the items here involved were so constructed as to be operable only with electric power or that other power could not be substituted without substantial modification of the machines. The issue presented is whether the testimony is sufficient to overcome that presumption.
While it has been held that where an electric motor could be removed by taking out bolts and another source of power substituted by the use of pulleys and belts, the electric element or device was not an essential feature (Gene Miller and Atwood Imports, Inc. v. United States, 59 Cust. Ct. 212 , C.D. 3125, and cases cited), in those cases there was some evidence of the time it would take to make the modification (at the most 6 hours) and the cost (up to $100). The witness, in each case, was experienced in the construction, use, and operation of the *380 machine involved or personally knew its function and features. The electric motors were standard general purpose motors. In Clarence S. Holmes v. United States, 37 Cust. Ct. 260 , C.D. 1833, and W. C. Sullivan & Company v. United States, 46 Cust. Ct. 31 , C.D. 2229, there was positive evidence that machines of the same kind had in fact been operated by nonelectric power.
In Frank P. Dow Co., Inc., et al. v. United States, 52 Cust. Ct. 235 , Abstract 68234, the count held that the evidence established that the prime source of power for the imported gangsaw might be an electric motor, diesel engine, or steam engine, and that merely connecting V-belts to any of those sources of power would enable power to be delivered to the machine without any modification thereof. However, the machine also had an electric motor-driven automatic pressure lubricator and an automatic overhang electric motor control. There was evidence that a diesel driven gangsaw had a ratchet for lubrication incorporated within it. The court held, however, that there was no evidence that a machine designed and imported with an electric motor for automatic lubrication could be converted to use a ratchet without substantial modification or reconstruction of the functional properties of the machine. It also held that the evidence did not establish what modification would be necessary to make a substitution for the electrically operated automatic overhand control. It was, therefore, held that the gangsaws were essentially electrical articles.
In Berkley Machine Company v. United States, 55 Cust. Ct. 444 , Abstract 69577, the court pointed out (p. 451) :
* * * ^he esifcent Df a conversion sometimes, as in the instant case, must be determined from a hypothetical situation from the testimony of expert witnesses, since an actual conversion has never taken place according to the testimony herein. Estimated figures as given by said witnesses are understandably approximations. Conversion to a gasoline-powered motor was the exemplar in the instant case. There is no set figure for guidance as to what would constitute substantia] or minor modification. Involved in making such a determination are such elements as cost of materials, possible substitute parts, labor, time, and, inter alia, possibly that the imported machine, after such conversion, shall remain reasonably suitable to perform its normal intended function with reasonable efficiency.
The court held that the record lacked sufficient convincing, reliable, evidence to support the claim that electricity was not essential to the operation of the imported envelope-making machines. The evidence was conflicting as to whether the modifications necessary to use another source of power would be minor and could be carried out by a good mechanic at a cost of $200, or whether the planning alone would take 2 days and the cost of conversion would be $4,000 or $5,000. The court *381 noted that there were two well-qualified witnesses, but stated (pp. 452-453) :
* * * Mr. Sotti, a mechanical engineer, president and general manager of the company owning the machine at bar, stated that he was personally responsible for its operation and maintenance. In fact, he had studied at one time the feasibility of converting to gasoline or other power other than electric, but found that the cost of purchasing the equipment would not be warranted. In his opinión, the said machine could be converted to power other than electricity, but not without substantial modification of the machine itself.
:Jí ;|í s|í ^ ‡ Hí ❖
We are at this point, therefore, lacking conclusive evidence as to what modification of the machine per se is required or the minimum cost of conversion. Further to this, the extent of whatever would constitute necessary modifications is at variance among the witnesses. This situation can be appreciated readily enough when we recall that all three witnesses herein testified, in substance, that they had never accomplished such a conversion, and had never seen or known of such a conversion.
This court, seeking some firm base on which to arrive at its determination, finds in the conflicting and varying cost estimates, and in the probable extent of necessary machine modifications, a situation which is at least conjectural.
In Gene Miller and Atwood Imports, Inc. v. United States, supra, the witness was a mechanical engineer who was thoroughly familiar with the machines involved. He had gone to training programs as comprehensive as tearing down a machine and rebuilding it, and he had the sole responsibility in the United States of seeing that the equipment was kept operating. He described in some detail how other sources of power could be substituted for electricity. The basic design of some of the machines was for hand-foot treadle operation; some were still used in this country with other than electric power. All of them were designed for world trade, and, since many countries do not have electric power, they were built so that steam or gasoline engines could be used. The witness had seen some of the machines operated with other than electric power.
In the instant case, all of the imported articles or the articles in which they were used were actually powered by electric motors after installation at the plant at Paulsboro, 1ST.J. There is no evidence that the witness had ever seen like or similar equipment operated elsewhere or by any other source of power. There is nothing in the record to show that the witness designed or had a hand in or supervised the designing of any of the imported articles, nor that he installed or operated them or supervised their installation or operation. He said that in the course of his management duties he indirectly supervised the purchase of the equipment involved herein and that he became familiar with the items *382 and their functions and operations from a study of drawings and by observing them in operation. According to the record, he observed them at the time they were installed and at their first operation. The record does not show in any detail the extent of his familiarity with the operation of all of these items, how often he saw them, and the circumstances surrounding his observation of them in operation.
The articles involved here are not only complex in themselves but are parts of equipment including various machines, all used for the production of hydrogen fluoride or other acids at a large plant in Paulsboro, N.J. The witness described the articles; drawings of some of them, but no photographs, were received'in evidence. As representative of his testimony, some of his descriptions are outlined below:
He said that the dust collectors were multibag filters, used for separating powder from air. He said each was cylindrical in shape and when in operation had fabric tubes or bags hanging from six positions. Dust was removed by passage of air through the fabric tubes leaving the dust on one wall of the fabric, a process similar to the action in a vacuum cleaner. In order for the tubes to be kept free from blinding by the powder, it was necessary that they be rapped or shaken at intervals. This was done by a mechanical apparatus consisting of a rotary cam arrangement driven from a single shaft by a %-horsepower electric motor which was on the equipment when imported.
According to the witness, the dust collectors had a place for the mounting of a motor or whatever other drive might be substituted. As imported, the units were supplied with gear head motors attached to the top of the apparatus by four bolts. The witness said that the motors could be removed in 15 minutes by the removal of four bolts. To substitute other power he stated:
You could mount a pillow block with a shaft in the block, and the pinion gear on the one end in the case of the gear motor, and a sheave on the other end to receive the power from whatever power source.
=!= * * you would have to have mounted on the device a shaft to carry the pinion gear and the pulley to which the power would be transmitted, probably by a belt or chain, from the common power source for the plant. In this case, the common source, power source for the plant was electricity. Another plant might have a steam driven power shaft. [Emphasis supplied.]
There is no evidence to show that anyone ever used other power or that other power could be substituted without substantial modification of the dust collectors themselves. The witness did not state how long it would take to substitute other power, the extent of the work on the machine itself, or the cost. To merely remove a motor may be a simple operation, but to substitute another form of power might well require considerably more work. If it did not, that fact should have been shown.
*383 The witness described the kiln seal fluid supply units as “tar pumping units, which was tar having use as a lubricant on the seals incorporated in the heads of the kilns.” As imported, each unit had a pump and an electric heater but no driving mechanism. The equipment had an extended shaft from the pump to receive whatever rotary drive might be provided. The witness did not recall whether it had a place for the motor. He knew that the pump was driven by a chain and said that the motor might have been mounted separately on a separate foundation. No motor was mounted as the equipment was received.
According to the witness, the electric heaters were included in the importation as a matter of convenience but another type of heater could be used. To substitute a steam or gas heater it would have been necessary to unbolt and detach the electric heater at the flanges which, he said, would have been the work of a few minutes as the equipment was designed specifically for easy removal for cleaning. At the same flanges some other heating device might have been added such as a steam heat changer. In such case, the electric heater would have been of no further use. This suggests that it was designed specifically for the unit and implies that the unit as imported was essentially electrical. Furthermore, there was no testimony as to the cost of a new heater or the expense, time, and modification involved in making the substitution.
The Libra dosing scales were used for metering powder and, according to the witness, were more properly designated as “weigh feeders.” Each of the scales had a drum which was hung on a balance beam and a hopper which dropped powder into the drum. The drum balanced the weight on the other side of the balance beam, thus activating a mechanical linkage which closed the hopper and tripped the drive for the drum. The drum rotated, dumping the weighed batch of powder, and continued rotating until it was back in position to receive the next batch.
As imported, the equipment had no motor but contained an electric switch box in anticipation of the eventual addition of a motor. In fact, an electrical gear motor was added. The witness explained that the drive was located at the center of the drum, that the shaft extended from that point, and that it was at that location that the gear motor was mounted. At the same point, a pulley or some other suitable drive could have been added. In that case, the switch box would not have been used.
He described the rotary horizontal ball mills as parts of two rotary horizontal ball mills which all “seem” essential for the operation of the mills. The witness said such mills were used for grinding particulate solids to a fine powder, by placing them in a drum with metal cylinders or balls, rotating the drum, causing the solids to be ground *384 against the walls of the drum and the balls and cylinders. The equipment could be used with metal tubes instead of balls, and was designed so that the powder, after being ground, was elutriated from the mill by a stream of air which was circulated through the mill.
The witness said that he did not know whether the importation contained all the parts of a rotary mill, explaining that the equipment was extremely heavy and was not subject to importation all in one assembly. When asked whether he knew anything about the individual parts, he said he would recognize certain portions of them. He said that the parts were made specifically for these mills and were more or less interchangeable in mills of the same size. He thought because of the nature of the equipment that the manufacturer would design his mills so that the parts would be interchangeable among mills of the same dimension made by him, but would not be usable on other mills.
There were no electrical features on these articles in their imported condition. The witness testified, however:
* * * They were suitable to any suitable driving power. They are approximately five feet in diameter in one case, and six feet in diameter in the other. Each was about ten feet long at the drums.
He did not explain how electric power or any other power could be utilized to operate this large machine. He merely stated that there was a mounting which made it suitable for electric power as well as any other power. He should have supported this conclusion with evidence as to how this could be accomplished in connection with each source of power he had in mind.
According to the witness, Ko-Kneaders were blenders used for blending plastic materials or liquids and powders- The blending was done by an interrupted screw which rotates with oscillations, and with an end to end reciprocation in a closed baffled trough- Materials were introduced at one end, were blended, and the mixture discharged from the other end. An elaborate gear box and a switch box were included with the equipment, the latter with the anticipation of the eventual addition of an electric motor. An electric motor was, in fact, added after importation.
If electric power had not been employed, the switch box would have been unused. Moreover, the base plate of the Ko-Kneader contained holes suitable for mounting a motor, but if another type of power had been employed, the holes would not have been used.
The Ko-Kneader was lubricated with an external lubricating unit which had some considerable amount of electrical instrumentation, but the witness said it could have been lubricated as well by some other type of lubricating unit, driven by power other than electricity. It was only necessary that the Ko-Kneader have some lubricating pump provided for it. A device powered by some means other than electrical *385 would have served just as well and, according to the witness, would have required no change in the Ko-Kneader.
In general, the testimony of the witness regarding the use of another source of power consists of conclusory statements to the effect that the machines were suitable for any drive; that pulleys could be added on to the shaft to receive power from another source, and that the articles could be operated just as efficiently with nonelectric power. There is nothing in the record to show how much work would be required to substitute nonelectric power, what it would cost, or the extent of modification of the articles themselves. Although the witness stated in several instances that the articles were designed for wide use in many different plants, there is nothing in the record to show that he had anything to do with the design of the articles or that he had any personal knowledge of their use or the source of power used in other plants.
The witness testified on cross-examination:
* * * The steam turbine or steam engine is frequently economical in a large chémical plant, where steam is used for many other purposes, and in such a case it permits the provision of power shafts conveniently located, from which belts can be carried to the individual items of equipment to be driven.
He did not, however, specify or describe any chemical plants which he had seen which employed steam power, nor did he state that to his knowledge such plants had any equipment of the kind involved herein. In fact, he was rather uncertain as to the imported articles themselves. He could not identify the spare parts for the standard round filter, nor the parts of the ball mills. He was under the impression that one of the kiln heads was an outlet head rather than an inlet head as invoiced. He did not recall whether the motor for the agitator was mounted, and he did not know whether the kiln seal supply unit had a place for a motor.
In view of the record presented, I am of opinion that it has not been established that these machines are not essentially electrical or that they may be operated by means of other sources of power without substantial modification. Where, as here, the machines were intended to be, and were, in fact, operated electrically, to establish that some other source of power could be readily substituted without substantial modification of the machines, the evidence should be competent, clear, specific, and convincing. In the instant case it is not. The testimony of the witness was actually very vague and quite limited in describing the extent of change required for substituting other power and consisted in large part of conclusions that it was simply a matter of connecting belts and chains to other drive shafts. With the complex of machinery involved in this case, much more should have been shown. *386 It is not plausible, without more detailed information, that all of the articles could have been hooked up with another source of power in much the same way and as simply as the witness stated.
I am, of course, cognizant of the statements in United States v. Baker Perkins, Inc., et al., supra, that the mere contemplation of the use of electric motive power was not sufficient to constitute a machine an article having as an essential feature an electrical element and that the fact that electric power was the only practical commercial motivating force today was not to be considered in construing paragraph 353. Nevertheless, the language of paragraph 353 contemplates the inclusion of articles which are essentially electrical and which could not be used with other power without substantial modification. Where, as here, the machines are not actually used except with electric power, some definite facts regarding the modifications necessary for use with other power ought to appear on the record. Such elements might include the materials, labor, cost, and time which might be involved in making the change, the extent of the change, and facts indicating that the machine could function with its normal efficiency with the substitute power. In my opinion, the record here does not establish these elements to a satisfactory degree. I would, therefore, sustain the col-. lector’s classification and overrule the protests.