
    United States v. Dunlop & Ward
    (No. 1516).
    
    Waverly Bread — Biscuit.
    The merchandise here is clearly distinguishable by its form, consistency, and composition torn both cake and bread, as these terms are commonly understood. Its characteristics make of it biscuits, a term covering not only a species of bread, but also both sweetened and unsweetened crackers.
    United States Court of Customs Appeals,
    May 24, 1915.
    Appeal from Board of United States General Appraisers, G. A. 7654 (T. D. 35017).
    [Affirmed.]
    
      Bert Hanson, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel), for the United States.
    
      Comstock & Washburn (John A. ICratz of counsel) for appellees.
    Before Montgomery, Smith, Barber, De Vries, and Martin, Judges.
    
      
       Reported in T. D. 35505 (28 Treas. Dec., 1011).
    
   Smith, Judge,

delivered the opinion of the court:

Merchandise labeled and invoiced as Waverly shortbread was classified by the collector of customs at the port of New York as shortbread or cake containing chocolate, nuts, fruit, or confectionery, and was accordingly assessed for duty under the provisions of paragraph 194 of the tariff act of 1913, which paragraph reads as follows:

194. Biscuits, bread, wafers, cakes, and other baked articles, and puddings, by whatever name known, containing chocolate, nuts, fruit, or confectionery of any kind, and without regard to the component material of chief value, 25 per centum ad valorem.

The importers protested that the goods were biscuits, bread, or wafers, not specially provided for, and that the importation was therefore entitled to free entry under the provisions of paragraph 417 of the free list of the tariff act just mentioned. Paragraph 417 reads as follows:

(Free list). That on and after the day following the passage of this act, except as otherwise specially provided for in this act, the articles mentioned in the following paragraphs shall, when imported into the United States, * * * be exempt from duty:
-X- •& vr -X- *X* * *
417. Biscuits, bread, and wafers, not specially provided for in this section.

The Board of General Appraisers sustained the protest and the Government appealed.

On the hearing before the board it was shown by uncontradicted testimony that Waverly shortbread, such as that imported, was made of flour, sugar, and butter, and that it did not contain chocolate, nuts, fruit, or confectionery of any kind. As appears from the sample, the shortbread is slightly sweet and is in the form of a hard, flat cake, some 8 inches long, 6 inches wide, and about one-half inch thick. The sugar used in making the shortbread is apparently not used in the way of confectionery, but solely to give a very moderate flavor of sweetness to the product, and we are convinced from the sample and the testimony in the record that the merchandise can not be regarded as biscuits, bread, wafers, cakes, or other baked, articles containing chocolate, nuts, fruit, or confectionery of any kind.

The Government contends, however, that the merchandise more nearly resembles cake or a cooky than it does a biscuit, a bread, or a wafer, and that therefore it is not entitled to free entry under the provisions of paragraph 417. If not entitled to free-entry under that paragraph, the Government argues further that the assessment made by the collector, even if erroneous, must stand, inasmuch as the importers relied in their protest on paragraph 417 and on no other paragraph of the act.

We can not agree that the merchandise is cake or resembles cake as that term is commonly and popularly used. Cake, as ordinarily understood, is a composition of flour, eggs, butter, sugar, or other ingredients, which when baked is soft like bread, but is generally sweeter, richer, and more delicate than bread. (See Standard Dictionary.) Cake of this kind should be distinguished, however, from that class of baked articles which are called “cakes,” but which are not really cake, the name “cakes” being given to them on account of their flat, thin form, rather than on account of the sweetness, softness, and delicacy which are the usual characteristics of true cake. The goods in question might well be considered- as cakes on account of their form, but in our opinion they can not be regarded as cake in the sense of the light, soft, delicate, sweet confection, of which sponge cake, angel cake, and poundcake are typical examples.

Not being cake, the next question presented is, “Can the merchandise be considered as a biscuit, a bread, or a wafer within the meaning of paragraph 417?” Bread is defined to be — •

An article of food made of the flour or meal of grain, mixed with water or milk and salt, to which yeast, baking powder, or the like is commonly added to produce fermentation and rising, lightness or sponginess, the mixture being kneaded and baked in loaves or as biscuits, rolls, etc. — Standard Dictionary.

From this it is apparent that the importation can not be classified as a bread, giving to that term the meaning commonly accorded to it.

A wafer is defined to be—

(1) A circular cake of cooked paste, as of flour. See Waffle.
(2) A very thin light biscuit; when sweetened called sugar wafer. — Standard Dictionary.
A thin cake or leaf of paste, generally disk shaped. Specifically * * * (6) A small and delicate cake or biscuit, usually sweetened, variously flavored, and sometimes rolled up. — Century Dictionary and Cyclopedia.
A thin cake made of flour and other ingredients. * * * Wafer cake, a sweet thin cake.— Webster’s Dictionary.

Considering that the Waverly shhrtbread is about half an inch thick it can hardly be designated as a wafer.

A biscuit is defined to be—

1. (U. S.) A small, soft cake, generally shortened with lard or butter and unsweetened; often eaten hot.
2. A cracker; so called in England. In the United States this use is commonly restricted to fancy biscuits or sweet crackers. — Standard Dictionary.
1. A kind of har'd, dry bread, consisting of flour, water or milk, and salt, baked in thin flat cakes. The name is also extended to similar articles very variously made and flavored.
2. A small, round, soft cake made from dough raised with yeast or soda, sometimes shortened with lard, etc. * * * Naples biscuit, lady’s-fingers. — Century Dictionary and Cyclopedia.
1. A kind of unraised bread, of many varieties, plain, sweet, or fancy, formed into flat cakes, and baked hard; as, ship biscuit.
2. A small loaf or cake of bread, raised and shortened or made light with soda or baking powder. Usually a number are baked in the same pan, forming a sheet or card.— Webster’s Dictionary.

From the definitions of “biscuit” it is apparent that in the United States the term is used to designate not only a soft, unsweetened bread, which is shortened with lard or butter and which is usually eaten hot, but also hard, dry, flat cakes made of flour and water or milk and sometimes shortened, sweetened, and flavored — that is to say, “biscuit,” as the word is used in the United States, includes not only the raised soft bread biscuit, a product peculiar to the American kitchen, but also the unraised, dry breads, if they can be so called, formed into flat cakes, baked hard, and either plain, sweet, or fancy. • The merchandise under consideration is made of flour, butter, and sugar, mixed, we assume, with either milk or water. It is baked hard in the form of a dry, fiat cake. The merchandise is, we think, clearly distinguishable by its form, its consistency, and its composition from both cake and bread, as those terms are commonly understood, and its characteristics bring it within the definition of biscuit, which covers not only a species of bread, but also both sweets ened and unsweetened crackers.

The conclusion reached in the very carefully considered opinion written by General Appraiser Waite was, we think, correct, and the decision of the Board of General Appraisers is therefore affirmed.  