1 Ct. Cust. 213 | C.C.P.A. | 1911
delivered tlie opinion of the court:
A quantity of binoxide of barium imported into the country at the port of New York was assessed by the collector of customs as a “chemical salt” at 25 per cent ad valorem under the provisions of paragraph 3 of the tariff act of 1897, which reads as follows:
3. Alkalies, alkaloids, distilled oils, essential oils, expressed oils, rendered oils, and all combinations of the foregoing and all chemical compounds and salts not specially provided for in this Act, twenty-five per centum ad valorem.
The importer protested that the importation was properly free of duty under paragraph 489 of the free list, which is as follows:
489. Baryta, carbonate of, or witherite,
or that it was dutiable at either 75 cents or $5.25 per ton under paragraph 44 thereof, which is as follows:
44. Baryta, sulphate of, or barytes, including barytes earth, unmanufactured, seventy-five cents per ton; manufactured, five dollars and twenty-five cents per ton,
or that it was dutiable at either $1 or $2 per ton under paragraph 93 of the act, the relevant and material parts of which are as follows:
93. Clays or earths, unwrought or unmanufactured, not specially provided for in this Act, one dollar per ton; wrought or manufactured, not specially provided for in this Act, two dollars per ton; * * *
or that it was subject to duty at 20 per cent ad valorem as a metallic mineral substance in a crude state under paragraph 183, which reads as follows:
183. Metallic mineral substances in a crude state, and metals unwrought, not specially provided for in this Act, twenty per centum ad valorem; monazite sand and thorite, six cents per pound.
The affidavits submitted in support of the motion do not positively assail the correctness of the record, and there is in them no positive or direct statement that the record does not truly and accurately reproduce the questions propounded to witnesses and the answers which they actually gave. The statement in the affidavit by appellants’ attorney that he did not recollect propounding certain questions in the form'stated in the transcript, and that a reference to carbonate of barium contained therein is unintelligible to himself and one of the witnesses, is hardly sufficiently positive or definite in form to justify a finding that the record does not set out the proceedings just as they occurred, especially as we must presume that the Board of General Appraisers certified to a correct record and performed the duty imposed upon it by law. But even if the affidavits were of a more positive and definite character, we should have some reserve in granting the relief requested. There was ample time to read the record after it had been made and to apply to the board for a correction thereof before it was forwarded. Having failed to do so, and no good cause appearing for not having done so, the appellants are not in a position to complain if at this late day they are not permitted to question its accuracy.
Appellants were aware of the nature and character of the testimony of the witness Gane as soon as it was given, and any application to permit him to modify, change, correct, or explain his testimony should have been made to the Board of General Appraisers either by direct motion or on motion for a rehearing before it lost jurisdiction by returning the record to the circuit court on appeal. No such application having been made to the board, this court would not be warranted in reopening the case to achieve an end which might have been accomplished had the appellants promptly and diligently availed themselves of a procedure adequate to the purpose.
Motion denied.
In passing it may be said, however, that even if the correction and change of testimony suggested were made they would not alter the decision which we have reached.
So far as the evidence shows and an examination of scientific works discloses, the binoxide of barium does not occur in a state of nature. It is the result purely of artificial processes, and is one of the numerous creations of the chemical laboratory and of modern chemical science. It can not, therefore, be classed as a clay or earth wrought or un-wrought, manufactured or unmanufactured, within the meaning of paragraph 93. That paragraph refers to certain natural substance's, and to come -within its provisions the clay or earth must continue to be a clay or earth. When the clay or earth is destroyed as the result of chemical decomposition and its freed chemical components form new chemical combinations, or remain free, the new substances so brought into existence are not and can not be classed as clays or earths. Witherite when burned at a high temperature ceases to be witherite and is resolved into two entirely new substances — oxide of barium, which remains in the crucible, and carbonic dioxide, which floats off as gas. Barium binoxide is a manufacture from clay or earth; it is not a clay or earth manufactured.
To say that it is a clay or earth because it was finally produced from such material is no more reasonable than to say that radium, one of the most notable achievements of chemical science, is pitchblende because it is made from pitchblende. Barium binoxide can not be classed as baryte or barytes earth for the reason that baryte or barytes earth is a sulphate of barium (BaSOJ, another substance altogether and a natural product just as is -witherite. That it is not
The decision of the Board of General Appraisers is affirmed.