DE RONDE v. UNITED STATES (No. 66).1

BLEACHER'S BLUE Containing FERROCYANIDE of Iron.

An article containing ferrocyanide of iron that is used exclusively for bleaching purposes was not dutiable as a color" under paragraph 45, tariff act 1897,

66

but was dutiable under section 6 of that act.

United States Court of Customs Appeals, November 30, 1910.

APPEAL from a decision of the Board of United States General Appraisers, G. A. 6624 (T. D. 28253).

[Reversed.]

Walden & Webster (Howard T. Walden of counsel) for appellants.

D. Frank Lloyd, Assistant Attorney General, and Charles E. McNabb, Special Attorney (Charles Duane Baker on the brief(, for the United States.

Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: This is an appeal from a decision of the Board of General Appraisers which confirmed a decision of the collector of customs of New York in assessing duty on bleacher's blue. The merchandise was assessed under paragraph 45 of the tariff law of 1897, which provides forblues, such as Berlin, Prussian, Chinese, and all others, containing ferrocyanide of iron, in pulp, dry or ground in or mixed with oil or water, eight cents per pound.

The appellant claims that the importation was dutiable under section 6 at the rate of 20 per cent ad valorem as an unenumerated manufactured article.

The contention is that paragraph 45 provides for colors-that is, paints or dyes-only; that bleacher's blue is not a color, and that as there is no other specific provision under which this article is dutiable it comes under the general provisions of section 6.

We think an examination of the statute clearly indicates that the blues referred to in paragraph 45 are the blues in paints and colors. With the heading under which this paragraph occurs, it would read as follows:

Paints, colors, and varnishes.

*

* blues, such as Berlin, Prussian, Chinese,

and all others, containing ferrocyanide of iron, in pulp, dry or ground in or mixed with oil or water, eight cents per pound.

We think that the arrangement of this paragraph in the statute itself under the heading of "Paints, colors, and varnishes" is not to be ignored.

It is argued by counsel for the Government that if it be conceded that some of the blues enumerated in paragraph 45 are colors, nevertheless the phrase "all others" should be construed to mean all other blues, and so construed, it fairly includes blues which may not be colors, provided they contain ferrocyanide of iron ground in or mixed with water. But we thing not only the relation with which these

1 Reported in T. D. 31112 (19 Treas. Dec., 1242).

words appear in the text of paragraph 45, but the heading under which that paragraph is placed in the statute itself, indicates that two elements were essential to bring the importation within the terms of that paragraph: First, it should consist of colors-that is, a paint or preparation to be used for dyeing and, second, that it should answer to the description of blues such as Berlin, Prussian, Chinese, or some other containing ferrocyanide of iron. That the present importation contains a small portion of ferrocyanide of iron is conceded, the testimony showing that it contains 91.06 per cent of water and volatile substances, 8.94 per cent of solids, of which about 3.5 per cent is ferrocyanide of iron, 1 per cent of coal-tar color, the remainder of the solids. consisting of other ingredients which are not determined.

The use to which the importation is put is exclusively for sale to manufacturers for bleaching purposes. In the bleaching process 1 pound of this production is used with 4,000 pounds of corn, potato, or wheat starch dissolved in water. The purpose of its use is not to give color to the product, but to make it white. If the word "colors" is used in the act to indicate a product to be used in producing colors or in coloring, either by spreading on the surface of a substance or as a dye, it is inapt to describe the importation in question.

A similar question was before the Board of General Appraisers in United States v. Berlin Aniline Works, G. A. 6272 (T. D. 27054). The question there presented was whether an extract of Persian berries was properly classified as a color under the provisions of paragraph 58, which occurs under the same heading as paragraph 45, and which imposes a duty upon all paints, colors, pigments, lakes, crayons, etc., not otherwise specially provided for. The article imported was used exclusively for staining food products. It was said by the board:

It does not seem, on a careful reading of paragraph 58, that this article belongs to paints, colors, pigments, etc., which are therein grouped.

This case was, on appeal to the Circuit Court for the Southern District of New York, affirmed on the opinion of the board. (154 Fed. Rep., 925.)

Another case following this is that of In re Protest of Magnus & Lauer, G. A. 6560 (T. D. 28018), in which chlorophyll, a green coloring matter produced from fresh vegetation and used for staining foods and essential oils, was held not to be a color within the meaning of paragraph 58 of the tariff act.

We see no room for distinguishing this case from those cited. As intimated above, the first essential to bring this case within paragraph 45 is to establish that it is a color in the sense in which that term is used in that subdivision of the tariff law. If it be found to be a color, then the next essential is to show that it contains ferrocyanide of iron. Admittedly it does contain this ingredient. But this does not obviate

the necessity of showing that it is a color within the meaning of the paragraph, and it is not such, either in its use or, as we think, in common understanding.

It may be added that this article has been imported since 1884 by the present importers and that it was not until 1906 assessed as a blue containing ferrocyanide of iron, and while it may be true that the Government is not precluded from now contending that it comes within paragraph 45, the fact is significant nevertheless.

We think the importation is subject to duty under section 6 as an unenumerated manufactured article.

The decision of the Board of General Appraisers is reversed.

PETRU AMERICAN IMPORTING CO. v. UNITED STATES (No. 83).1 SUBSTITUTE FOR COFFEE.

An article represented to be and sold as a substance not alone for coloring coffee, but as a substitute for a portion of each drawing of coffee, adding, it being claimed, to the quality, purity, and wholesomeness of the beverage as served, was dutiable under paragraph 283, tariff act of 1897, as a substitute for coffee.

United States Court of Custom Appeals, November 30, 1910. APPEAL from a decision of the Board of United States General Appraisers (T. D. 30547). [Affirmed.]

Comstock & Washburn (J. Stuart Tompkins on the brief) for appellants.

D. Frank Lloyd, Assistant Attorney General (W. A. Robertson on the brief), for the United States.

Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The protestant imported merchandise which was assessed at 24 cents per pound under paragraph 283 of the tariff act of 1897 as an article used as a substitute for coffee. He protested upon the ground that the articles are not enumerated in the tariff act and should be held dutiable under section 6 of the act of 1897 as a nonenumerated manufactured article. The Board of General Appraisers overruled the protest and sustained the assessment. The case is brought here for review.

Merchandise very similar in its composition to some of that involved in this case was considered by the court of appeals in Hazard v. United States (175 Fed. Rep., 967). The court said of the article in controversy in that case:

The board finds that the article is not coffee and that paragraph 283 is intended to cover articles which are not coffee, but are used as substitutes for it. That this article, which the board finds is not coffee, is used as coffee or as a substitute for coffee seems to be undisputed. The paragraph in question recognizes the fact that some articles which are not coffee are used as substitutes therefor. If the article in question be not such a substitute, it certainly is similar in its use to articles which are. Indeed, it seems to have no other use.

1 Reported in T. D. 31113 (19 Treas. Dec., 1244).

The importations in question have in each instance substantially the same directions printed on the packages, the one reading:

Use 1 part of this fig essence to 2 parts of coffee. Pour boiling water over the mixture, let it draw 8 minutes and strain.

These directions are given on two of the compounds. The two other compounds are labeled "Coffee substitute." One contains on the label the statement: "Compound of chicory and sugar rape." The other, "Made only of figs."

The importer's witness testified that all of the articles represented by the various exhibits were used in the same way. It is true, he testified, that they were used for coloring coffee to make it a little darker than the natural color of the coffee. But every sale made by this importer of two of the brands at least was accompanied by the statement printed on the package:

This fig essence renders coffee to be the best, purest, and healthiest drink, so that it surpasses in its quality all other kinds of coffee essence, because it makes coffee better, gives the right color, and wholesome taste. It is recommended by the most excellent doctors and specialists.

This statement directly contradicts the testimony that the only purpose of the use of this preparation is to color the decoction.

The case is directly analogous to Hazard v. United States, except that in the present case this is not a complete substitute for coffee, but is a substitute for a portion of each drawing of coffee. We think it is in all substantial respects similar to the articles under consideration in the case cited, and the ruling of the board is affirmed.

UNITED STATES v. CORDERO (No. 95).1

ENTRY SOUGHT BEFORE COMPLETION OF VOYAGE.

Entry implies the presence of the merchandise at the time entry is sought to be made and where a consignment of gin on board a mail steamer reached Key West August 3, 1909, and entries of the gin were presented by the importer on August 4, the commodity itself remaining on board ship while the vessel proceeded to another destination, but, returning, called again at Key West on a later day and subsequently to the going into full force and effect of the tariff act, 1909; section 29 of that act governed the entry of the gin August 10, 1909, and it was dutiable as entered of that day.

United States Court of Customs Appeals, November 30, 1910. APPEAL from a decision of the Board of United States General Appraisers, G. A. 6945 (T. D. 30161).

[Reversed.]

D. Frank Lloyd, Assistant Attorney General (Thomas M. Lane, special attorney), for the United States.

Submitted by appellee on record.

Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: Mr. Cordero, as owner, imported a quantity of gin from Antwerp, by way of Habana, to Key West, Fla. The vessel containing the gin

1 Reported in T. D. 31114 (19 Treas. Dec., 1245).

arrived at Key West on the 3d of August, but the gin was not unloaded at that date, but was carried through by the vessel to the port of Tampa and returned to Key West on the 6th. On the 4th of August Mr. Cordero presented his entries at the custom-house and was informed that as the gin had not arrived the entry could not be made for immediate consumption. Later, and on the 10th of August, he entered the gin and the assessment was made thereon under the tariff act of 1909.

He protested on the 11th of August against the payment of the increased duty under the tariff act of 1909, amounting to 35 cents per gallon, stating that the reason the gin was not unloaded on the 3d at Key West was that the vessel was carrying United States mail and she could not be detained to make a more minute search for the case of liquors, which had been stored in the bow of the steamer, far removed from the gangway, and adding that if the liquor had been landed on its arrival at port on the 3d the importer would have had ample time to make entry for the same and thereby saved the additional cost of 35 cents per gallon, and on appeal to the Board of General Appraisers the protest was allowed and a refund of 35 cents per gallon directed. The case is brought here by the Government for review.

It is apparent that the case is one of some hardship to the importer, as it is manifest that it was through no fault of his that the gin was not entered for assessment and liquidation on the 3d of August; but the question presented is whether there was authority to enter the goods on the 4th of August, when the entry was attempted in the absence of the goods themselves.

The language of section 29 of the tariff act of 1909 is

That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be subjected to the duties imposed by this act and to no other duty, upon the entry or the withdrawal thereof.

The board in its opinion held, what we think is abundantly sustained by the authorities, that the importation actually takes place whenever the goods reach the port of destination, and that the right of Government to exact duties accrues in the fiscal sense of the term at that time. See United States v. Vowell (5 Cranch, 368); United States v. Arnold (24 Fed. Cas., 872); Meredith v. United States (13 Pet., 494); In James's case, G. A. 4869 (T. D. 22828).

If the importer was entitled to the rate of duty which attached in favor of Government when the vessel reached the port, without regard