
    MERCK & CO. v. UNITED STATES.
    (Circuit Court, S. D. New York.
    November 17, 1903.)
    No. 2,828.
    1. Customs Duties — Classification—Gad uol — Chemical Compounds — Alcoholic Medicinal Preparations.
    Gaduol, an alcoholic extract of cod liver oil, which is unsuited in its imported state to be used as a medicine, but is intended for such use after preparation in the form of an emulsion by the manufacturer, is not dutiable under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 67, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1631], for “medicinal preparations containing alcohol, or in the preparation of which alcohol is used,” but is dutiable under paragraph 3 of said act, relating to “chemical compounds.”
    On application by the importers, Merck & Co., to review a decision (G. A. 4,268) of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York on the importations in question. See G. A. 5010.
    The collector classified the merchandise, which consists of gaduol, under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 67, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1631], for “medicinal preparations containing alcohol or in the preparation of which alcohol is used.” The board, in affirming this classification, observed: “It was conceded at the hearing that the article was an alcoholic extract of cod liver oil, but it was contended that it was chiefly used in emulsions with phosphates or other materials, and not taken directly into the stomach. * * * The evidence shows that gaduol is usually taken with wine or some other vehicle, but it is common with many medicines to so disguise the disagreeable taste. We find that gaduol is a medicinal preparation in the preparation of which alcohol is used.”
    Albert Comstock, for appellants.
    Charles Duane Baker, Asst. U. S. Atty.
   HAZED, District Judge.

The article of importation known as “gaduol” is found by the Board of General Appraisers to be used as a medicinal preparation, and therefore dutiable at the rate of 55 cents per pound, under the provisions of the tariff act of July 24, 1897, c. 11, § 1, Schedule A, par. 67, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1631]. The importers protested on the ground that the article under paragraph 3 is a “chemical compound, not specially provided for.” The proofs show the article to be an alcoholic extract of cod liver oil, unsuited as a medicinal preparation, in the sense that it may in its imported state be administered as a remedy in disease. The article is chiefly sold to manufacturing chemists, who, before placing the article on the market, prepare an emulsion, by dilution with wine, liquor, or phosphate. It is not diluted by the consumer. Hence I am of the opinion that the commodity was erroneously assessed by the Board of General Appraisers as a medicinal preparation, and a duty should be charged under paragraph 3.

Decision of the Board of General Appraisers is reversed.  