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should have been allowed under either paragraph 559, 580, or 639, or in the alternative that duty should have been assessed at one-fourth of 1 cent per pound and 10 per cent ad valorem under paragraph 20 directly, or by similitude under paragraph 481, or at 10 or 20 per cent ad valorem under paragraph 480 of said act.
It is evident from the record, however, that the claim relied upon is that made under paragraph 20. The other claims being without merit are dismissed.
The sole question is whether the roots and berries from which the articles above described are concededly derived have been so changed in character by reason of the processes to which they have been subjected as to lose their identity and are not now drugs within the meaning of paragraph 20. It is not to be overlooked that for a period of nine years or more they have been so considered and have uniformly been classified as medicinal preparations and assessed at the rate exacted in this case. While not conclusive, this long-continued uniform practice is not to be considered as without influence in determining whether the classification should be changed.
The witness called on behalf of protestants was shown to have had long familiarity with each of the articles involved. He knew the processes by which they were produced, the class of dealers to whom they were sold, and the uses to which they were put. He did not pretend to deny-on the contrary he frankly admitted-that each of them in the condition as imported had medicinal properties and were prescribed for and used as a medicine. This is in the main confirmed by the United States Pharmacopoeia. The congressional intent to distinguish between a drug manufactured and a medicinal preparation is clear, and we think it is equally clear that each of the articles involved belongs to the latter rather than the former class.
We find as a fact that each of the articles under consideration is a medicinal preparation and hold that duty was properly assessed. The protest is overruled.
(T. D. 33119—G. A. 7422.)
Manufactures of cotton- Wicks for lamps.
1. The term "tapers,” as used in paragraph 436, tariff act of 1909, does not apply to sanctuary lights, so called, consisting severally of a china base or stand, a wire implement, and a quantity of wicks composed of a bamboo core covered with braided cotton and coated with wax or paraffin, cotton being the component material of chief value.
2. Cases on tapers reviewed.-United States v. Godillot (T. D. 32382) followed. Abstract 28938 (T. D. 32655) overruled.
United States General Appraisers, New York, January 24, 1913.
In the matter of protest 424830 of Manhattan Oil Co. against the assessment of duty by the collector of customs at the port of New York.
Before Board 2 (FISCHER and HOWELL, General Appraisers; CoOPER, G. A., dissenting [no opinion]).
FISCHER, General Appraiser: The goods are invoiced as "tapers," are also described as sanctuary lights, and are, in fact, in the nature
of wicks for use in the burning of the oil in the sanctuary lamps of churches. The said articles are imported in paper boxes, and severally consist of a china base or stand, a metal or wire tool, and a quantity of wicklike articles composed of a bamboo core which is covered with a braided cotton and which in turn at each end is coated for a short distance with an illuminant material composed of either wax or paraffin.
The collector assessed duty on the goods at the rate of 45 per cent ad valorem under paragraph 332, tariff act of 1909, as a manufacture of cotton, wax, and wood, cotton chief value, and the protestants claim that said articles are dutiable at 35 per cent ad valorem under the provision for tapers in paragraph 436 of said act.
The board on June 17, 1912, decided the case and sustained the contention of the protestants. That decision is published in Abstract 28938 (T. D. 32655). A motion for rehearing having been duly made, and the same having been granted, this case is now once more before us for our decision. Upon a careful review of the facts and the law we are forced to a conclusion contrary to that as expressed in Abstract 28938, supra. It is hardly necessary here to give a copy of the competing paragraphs. It is sufficient to state that the one paragraph imposes a duty of 45 per cent ad valorem on manufactures of which cotton is the component material of chief value, not specially provided for, and the other a duty of 35 per cent ad valorem upon tapers. If the goods are tapers, they are, of course, controlled by the latter paragraph.
The precise article was passed on under the act of 1890 in G. A. 1205 (T. D. 12521). The description, differing only in a minor detail and excluding that part which relates to the label on the box containing the lights, applies equally here. It is as follows:
An examination of the official samples of the goods shows them to be wicks or tapers that have been cut into uniform lengths of 5 inches. The outer portion of the articles consists of white cotton braid or cord resembling in appearance corset laces, but about one-half the circumference thereof. In the center of this cord or braid there is a thin shaving of wood or reed, coated with some inflammable material. The wicks or tapers upon either end for a distance of about one-half inch are of a reddish hue, they having been dipped in melted wax, colored red. Upon the label of the box containing the articles in question are the following words: "Directions for use of the eight-day wick for sanctuary lamp," and further directions for use, which establishes the fact that they are wicks.
In the case now before us the wicklike articles are of an orange hue at the one end for a distance of about 1 inches, while at the other end the coating of wax extends for one-half inch and is uncolored or white. In the above case, while the terms "wicks" and "tapers" were used interchangeably, it was found as a fact that the articles there under consideration were wicks. There is undoubtedly a distinction to be drawn between such articles as may properly be termed
"wicks" and such as may properly be termed "tapers." In that case there was no necessity to draw the line, as there was no provision in the act of 1890 for tapers as such, and as previously stated the conclusion in the cited case was that the lights were wicks for sanctuary lamps.
The only query here is whether the goods now before us are provided for denominatively in paragraph 436, tariff act of 1909, and that turns on whether it would be proper to term these articles "tapers." The evidence offered is insufficient to establish that they are commercially so known, and in our judgment they are not tapers within the ordinary meaning of that term, as they scarcely respond to the definition of that word as applied by ruling in United States v. Godillot (T. D. 32382) and other subsequent decisions of the said court on articles called night lights. It is urged that the rulings as to night lights in no way control the ruling to be reached on the wicks for the sanctuary lamps. It is pointed out that in the
odillot case the goods were entirely different from the articles at bar. They were about 2 inches high, cuplike, and shaped in that form by molding stearin around a bamboo wick. The difference is not so marked as requires any distinction in principle. These sanctuary lights do not come exactly within the ordinary definition of tapers, nor can it be said that they come any nearer to it than such night lights as were the subject of consideration in United States v. American Import Co. (T. D. 32912) and United States v. Borgfeldt & Co. (T. D. 32990).
In the former the night lights are described as consisting of " a bit of wax taper" held upright in a metal-capped cork float, and in the latter as "short wicks" provided with a collar of wood to hold them erect on a float. In either event they were entirely different from the cuplike, 2-inch-high lights of the Godillot case. They were slender or short pieces-either short wicks or bits of wax tapers-designed to float erect on the surface of oil and for use in the burning of that oil in the production of a feeble light. They were held dutiable otherwise than as tapers, and the ruling in the Godillot case as applied to them was considered decisive on that point.
The taper, as it is defined in the Godillot case, may be said to be a small and slender wax candle such as furnishes a feeble light for a brief period, and differs from a candle in that it usually has a long wick with such a thin coating or covering of wax as allows it to be coiled. The court said in that case, in part, as follows:
In consequence, "taper," as the term is now generally employed, does not signify a candle at all, but rather an article in the nature of what was formerly called a "spill"— that is to say, a slender strip of inflammable material employed to light lamps or candles.
We think that the night lights under discussion, both in composition and in the results accomplished by their use, are something more than tapers or taper candles. They are intended and designed to furnish light, not for a brief time, but, comparatively speaking, for a long-continued period. They are not fitted to be carried from place to place as are tapers or taper candles. Finally, they could not be substituted for tapers nor even for taper candles, the use of which seems to be regulated by religious custom and the ritual of religious ceremonies.
These wicklike articles for sanctuary lamps have all the objectionable features, all the negative factors, to no less an extent than the night lights, and their presence militates against their consideration as tapers. Like night lights they are designed to furnish light for a long period (in this particular case eight days), partake of all the features of the wick as used in the ordinary oil lamp, and merely serve in the sanctuary lamp as a means whereby a light is kept burning with oil as the illuminant. We consider that the articles are wicks rather than tapers, and we hold, accordingly, that they are properly dutiable as assessed by the collector. The protest should be, and is hereby, overruled.
(T. D. 33120.)
Abstracts of decisions of the Board of General Appraisers.
Board 1-Sharretts, McClelland, and Chamberlain. Board 2-Fischer, Howell, and Cooper. Board 3—Waite, Somerville, and Hay.
BEFORE BOARD 1, JANUARY 20, 1913.
No. 31125.-MANILA HEMP STRIPS.-Protest 565868 of James G. Johnson & Co. (New York). Opinion by McClelland, G. A.
Unbleached manila hemp strips classified under paragraph 463, tariff act of 1909, held dutiable under paragraph 422, as claimed.
No. 31126.-PICKER STRAPS.-Protest 608321 of Muller Gloria Mills (Bridgeport). Opinion by McClelland, G. A.
Picker straps held properly classified under paragraph 451, tariff act of 1909. United States v. Ringk (T. D. 32908) followed.
No. 31127.-MATCHES.-Protests 565205, etc., of Strohmeyer & Arpe Co. et al. (New York) and protest 621396 of O. G. Hempstead & Son (Philadelphia). Opinions. by McClelland, G. A.
The merchandise in question was held dutiable as safety matches under paragraph 436, tariff act of 1909. G. A. 7116 (T. D. 31017) followed. Protests overruled.
No. 31128.-PROTESTS OVERRULED.-Protests 611636, etc., of Stern Bros, et al. (New York). Opinion by McClelland, G. A.
Protests unsupported; overruled.
BEFORE BOARD 2, JANUARY 20, 1913.
No. 31129.-WEARING APPAREL OF ARTIFICIAL SILK.-Protests 364087, etc., of Knauth, Nachod & Kuhne and protests 202641, etc., of Peebles, Sackett & Crawford et al. (New York). Opinions by Howell, G. A.
Hats and scarfs found to be in chief value of artificial silk held dutiable under paragraph 314, tariff act of 1897. Thomass v. United States (1 Ct. Cust. Appls., 86; T. D. 31107) followed. Protests making the correct claim sustained.
No. 31130.-COTTON NETS-COTTON LACES-ARTIFICIAL SILK EMBROIDERIES.
Protests 585456, etc., of Boggs & Buhl (Pittsburgh). Opinion by Howell, G. A. Embroideries composed of cotton net with a design in artificial silk held dutiable under paragraph 405, tariff act of 1909. Embroideries composed of cotton net with design in tinsel or metal threads held dutiable under paragraph 179. Shoninger v. United States (2 Ct. Cust. Appls., 125; T. D. 31661) followed. Cotton laces, embroideries or insertings, and cotton lace collars held dutiable under paragraph 349. Protests sustained in part.
No. 31131.-SILK NETS-COTTON LACES.-Protests 560784-39180, etc., of Marshall Field & Co. (Chicago). Opinion by Howell, G. A.
Silk nets and cotton laces classified under paragraph 350, tariff act of 1909, were held dutiable under paragraphs 402 and 349, respectively. Goods composed in chief value of metal threads held dutiable under paragraph 179 and those composed wholly of artificial silk under paragraph 405. Protests sustained in part.
No. 31132.-IMITATION HORSEHAIR BRAIDS.-Protests 194603, etc., of RosenthalSloan Millinery Co. (St. Louis). Opinion by Howell, G. A.
Imitation horsehair braids classified under paragraph 390, tariff act of 1897, held dutiable under paragraph 314 by similitude. United States v. Cochran (T. D. 32349) followed.
No. 31133.-CONSTITUTIONALITY OF CUSTOMS ADMINISTRATIVE ACT.-Protest 624936 of R. F. Downing & Co. (New York). Opinion by Howell, G. A.
Protest overruled on the authority of Field v. Clark (143 U. S., 649) relating to the constitutionality of the tariff act of October 1, 1890, and the customs administrative act of 1890.
No. 31134.-MOUSSELINE BANDS-APPLIQUÉD ARTICLES.-Protests 444367, etc., of Wertheimer Bros. et al. (New York). Opinion by Howell, G. A.
On the authority of United States v. Wertheimer (2 Ct. Cust. Appls., 515; T. D. 32249) and United States v. Caesar (T. D. 32533), mousseline bands, chiffon bands, or gauze bands were held dutiable as manufactures of silk under paragraph 403, tariff act of 1909. Similar articles appliquéd held dutiable under the provision for appliquéd articles in paragraph 402. Protests sustained in part. Certain protests held insufficient. United States v. Park (T. D. 32907).
No. 31135.-PROTESTS OVERRULED.-Protests 181075, etc., of Max M. Schwartz & Co. et al., and protests 654555, etc., of T. S. Todd & Co. et al. (New York). Opinions by Howell, G. A.
Protests unsupported; overruled.