No. 76 (3,913) | 2d Cir. | Dec 4, 1906
The importations in controversy are cherries from which the pits had been removed, the fruit then washed several times in water, as a result of which the dirt and free juices were removed, then exposed to sulphur fumes, and then packed in casks in a weak solution of salt water in order to preserve the fruit in transit; the salt ranging in percentage from .118 to .402. They were designed to be converted into candied cherries, which is done by washing out the salt and sulphur dust, then boiling them in fresh water and then boiling them in sugar sirup. They were subjected to a duty of 1 cent per pound and 3a per cent, ad valorem, under paragraph 263 of the tariff act of July 24, 1897 (chapter 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]), which reads as follows:
“263. Comfits, sweetmeats, and fruits preserved in sugar, molasses, spirits, or in their own juices, not specially provided for in this act, one cent per pound and thirty-five per centum ad valorem. * * * ”
The question presented by the appeal is whether the importations were properly classified under that paragraph, or whether they should not have been classified under paragraph 262 or paragraph 559 of the same tariff act. Paragraph 262 prescribes duty as follows:
“262. Apples, peaches, quinces, cherries, plums, and pears, green or ripe, twenty-five cents per bushel; apples, peaches, pears, and other edible fruits, including berries, when dried, desiccated, evaporated or prepared in any manner, not specially provided for in this Act, two cents per pound. * * * ”
Paragraph 559 places upon the free list “fruits or berries, green, ripe, or dried, and fruits in brine, not specially provided for in this act,” Section 2, Free List, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1683].
We are satisfied that the importations were not within the description of paragraph 263. That paragraph is intended to apply to iruits. which have been “preserved”; that is, treated so as to become a preserve or comfit, and not to such as merely remain temporarily in their natural juices. As this court pointed out, in United States v. Reiss, 136 Fed. 741, 69 C. C. A. 393, the paragraph refers to a class of goods-, which are commercially known and dealt in as preserved fruits. In the' case of the present importations the fruit was not in any just sense preserved in its own juices; indeed, the juices which were retained in it only tended to produce its decay, and this effect was minimized as far as practicable by the treatment with sulphur and salt water.
We are also satisfied that the importations were not free under paragraph 559, and agree with the reasoning of the Board of General Appraisers and of the -court below upon that question. In our judgment, they fall within the more specific description of paragraph 262,
The decision of the court below and of the Board of General Appraisers is modified accordingly.