
    F. W. MYERS & CO. v. UNITED STATES.
    (Circuit Court, D. Vermont.
    July 23, 1907.)
    No. 1,810.
    1. Customs DuTms — Classification—Corundum—Emery—Similitude.
    Pulverized corundum, which, though a distinct article from emery, is identical with it in use and nearly identical in material, is dutiable by similitude to ground emery, under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 419, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1074).
    2. Same — Sand—‘ ‘Crude’’ — ‘ ‘Manufactured.”
    
      Held, that under Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 671, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688], relating to “sand, crude or manufactured,” “crude,” sand is such as is found in nature, and “manufactured” sand is, though manufactured, substantially the same as crude sand; and pulverized corundum, which is not produced from, crude sand, is therefore not sand of either kind within the meaning of the act.
    On Application for Review of a Decision of the Board of United States General Appraisers.
    For decision below, see G. A. 6,277 (T. D. 27,059), affirming the assessment of duty by the collector of customs at the port of Burlington. The article in controversy consisted -of pulverized corundum, which the collector classified as ground emery under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 419, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674]. The board held that, if the material in controversy were not actually emery, it was properly assessed at the same rate, by virtue of the similitude clause in section 7 of said act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1693]).
    Walden & Webster (Henry J. Webster, of counsel), for importers.
    Alexander Dunnett, U. S. Atty.
   HOLT, District Judge.

This is an appeal from a decision of the Board of General Appraisers assessing certain merchandise as emery. The article in question is corundum. The appellant claims that it is free of duty under the provision admitting “sand, crude or manufactured,” free of duty, in paragraph 671 of the tariff act (Act July 24,' 1897, c. 11, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688]).

_ _ Corundum is a kind of stone or rock, consisting almost entirely of oxide of aluminum. It is substantially free from any impurities. Emery ore is corundum ore containing a mixture of impurities, principally oxide of iron. Both ores, when used in the arts, are ground, into fine particles and used for grinding. Corundum and emery are commercially distinct articles, but the object for which they are used is identical; and they appear to be in fact identical, except that corundum is substantially pure and emery contains some impurities. There is-no specific provision in the tariff act imposing a duty on corundum; and, unless corundum is manufactured sand, within the meaning of section 671 of the tariff act, I think there is no doubt that corundum is subject to the tax imposed upon emery, under the similitude clause in the tariff act. The actual question in this case, therefore, is whether corundum is included in the term “sand, crude or manufactured,” as used in section 671. Crude sand is obviously common sand, as found in nature. It consists almost entirely of silica. I think the term “sand, manufactured,” as used in the act, means a kind of sand which, although manufactured, is substantially the same as crude sand. I do not think, therefore, that pulverized corundum ore, or corundum, can be called “manufactured” sand in the sense in which that word is used in the act. The fact that it is technically covered by some of the definitions of sand in the dictionaries is in my opinion immaterial.

My conclusion is that the decision of the General Appraisers, appealed from, should be affirmed.  