No. 127 (5,205) | 2d Cir. | Jan 12, 1909
The importation in .question is glycerophosphate of lime. It was assessed by the collector as a medicinal preparation under Tariff Act July 34, 1897, c. 11, § 1, Schedule A, par. 67, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1631), and his decision was affirmed by the board and by the Circuit Court. The importer contends that it should have been assessed as a chemical compound not specially provided for.
The proofs show, that the article is a chemical compound in the preparation of which alcohol is used, and that, though it is occasionally dispensed medicinally in its imported form, it is almost always used in combination with other drugs in the preparation of elixirs.
Paragraph 3 is as follows:
Alkalies, alkaloids, distilled oils, essentials oils, expressed oils, rendered oils, and all combinations of tbe foregoing, and all chemical compoimds and salts not specially provided for in this act, twenty-five per centum ad valorem.
Paragraph 67 is as follows:
Medicinal preparations containing alcohol, or in the preparation of which alcohol is used, not specially provided for in this act, fifty-five cents per pound, but in no case shall the same pay less than twenty-five per centum ad valorem.
The article is not specially provided for, but as a chemical compound is enumerated in paragraph 3. If a medicinal preparation, it is also enumerated in paragraph 67 and should be classified under it as the more specific. Fink v. United States, 170 U.S. 584" date_filed="1898-05-23" court="SCOTUS" case_name="Fink v. United States">170 U. S. 584, 18 Sup. Ct. 770, 42 L. Ed. 1153" date_filed="1898-05-23" court="SCOTUS" case_name="Fink v. United States">42 L. Ed. 1153. But we have held under similar paragraphs of the act of 1890 that crude cocaine, a drugt which is occasionally dispensed in its imported form, but generally used in combination with other drugs to make medicinal preparations, is not itself a medicinal preparation. Hirzel v. United States, 58 F. 772" date_filed="1893-12-05" court="2d Cir." case_name="Hirzel v. United States">58 Fed. 772, 7 C. C. A. 491. The Circuit Court for the District of Massachusetts took the same view in the case of scammony resin. United States v. Martin, 155 F. 264" date_filed="1907-04-23" court="None" case_name="United States v. Martin">155 Fed. 264.
Following these decisions, the judgment is reversed.