
    FUERST BROS. & CO. v. UNITED STATES.
    (Circuit Court, S. D. New York.
    November 28, 1908.)
    No. 4,168.
    Customs Duties (§ 30) — Classification—“Coooa-Buttekine”—“Cocoanut . Oil.”
    Cocoanut oil that has been subjected to a process of manufacture, has a melting point of about 78.8 degrees Fahrenheit, and is sold to confectioners, is not cocoanut oil, within the meaning of Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 026, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1085), but is dutiable as “cocoa-butterine,” under section 1, Schedule G, par. 282, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652).
    [Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 30. For other definitions, see Words and Phrases, vol. 8, p. 7603.]
    On Application for Review of a Decision by the Board of United States General Appraisers.
    The decision below affirmed the assessment of duty by the collector of customs at the port of New York.
    Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers.
    D. Drank Lloyd, Asst. U. S. Atty.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes
    
   MARTIN, District Judge

(orally). The merchandise in controversy was assessed for duty by the collector at 3½ cents per pound, under the provision for “cocoa-butterine” in Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 282, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1052). The importers’ protest claims free entry as cocoanut oil, under paragraph 626 of the act (July 24, 1897, c. 11, § 2, Free List, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685]). There are also alternative claims for assessment of the product as an expressed or rendered oil, under paragraph 3, or as a nonenumerated manufactured article, under section 6 of the act.

From an examination of this record, I find that the importer, Albert F. Fuerst, testified before the Board of Appraisers that his firm sells the article in question—

“to dealers in this country and also to confectioners’ houses, confectioners’ supply. Q. As a matter of fact, its proper use is not for soap making? A. It can be used. Q. It can be used, but they don’t buy it to use in soap making? A. Well, it is nothing but cocoanut oil refined, the same as they import.”

He testifies further:

“I also desire to state that we buy this material as refined cocoanut oil, and we sell it to the trade as refined coco'anut oil. Furthermore, we buy from the same manufacturer who manufactures this cocoanut oil a material which we import into this country and sell t.o the trade as cocoa-butter substitute, on which wo pay a duty of 3½ cenia a pound. The same manufacturer who manufactures this refined eocoanut oil manufactures for us a material which we sell as cocoa-butter substitute, but ¡Ms material here we only sell as relined eocoanut oil.”

Wlieti asked tlie difference between a eocoanut oil, reñned, and cocoa-butter substitute, the witness answered:

“I could not tell you exactly wind; the difference is, but we know that the material which we buy from the same manufacturer and soil as cocoa-butter substitute is something- entirely different to this. I know that. I don’t know what the other product consists of. We hare asked the manufacturer, both verbally and in writing, what the raw material is that he used for making the cocoa-butter substitute, and ho has declined to tell us, as he says it is a secret”

The same importer, testifying- again in this court, states that he has had this product analyzed, and that the difference between refined eocoanut oil (as represented by Exhibit 4) and cocoa-butter substitute (as represented by Exhibit 5) is that Exhibit 4 has a melting point of from 76° to 78° E., and Exhibit 5 of 90° to 93°E.; that the eocoanut oil is used for soap making in combination with other materials, and may he used for culinary purposes or by chocolate makers; anil that Exhibit 4 is not used as a substitute for cocoa-butter, unless in combination with something else. He does not dispute the government chemist’s report, except that he claims the article would melt at 70°, instead of 78.8° E. He does not slate the manner of its preparation. He sheds no further light as to the process of manufacture. JTe docs not materially change his statement of the purposes for which it is designed to he used.

The board held there; was no sufficient evidence “for a finding that the article is not suitable for use as a cocoa-butter substitute, and therefore dutiable under paragraph 282.” The evidence taken in this court does not materially change the facts as they appeared before the board. I am satisfied, from an examination of all the evidence, that the article in question is not simple eocoanut oil, but that eocoanut oil has been subjected to a process of manufacture.

The decision of the Board of General Appraisers is affirmed.  