99 F. 433 | 2d Cir. | 1900
This appeal involves the dutiable classification, under the tariff act of 1894, of “ferrochrome,” a product obtained by smelting chromic ore, and used in the manufacture of steel.
The importations were classified by the collector under section 3 of the act, as “manufactured articles not enumerated or provided for,” and subjected to duty at 20 per centum ad valorem. Upon an appeal by the importers, the hoard of general appraisers affirmed the action of the collector, and the circuit court reversed that decision. 91 Fed. 522. The circuit court held that the articles should have been classified under paragraph 110, which imposes duty upon ferromanganese at the rate of four dollars per ton; the ground of the decision being that ferrochrome and ferromanganese are similar articles in the uses to which they are applied, and, as the former was unenumerated, it was, by force of section 4, by similitude, subject to the duty imposed on ferromanganese. As the importers have not appealed from the
Upon the appeal from the decision of the board of general appraisers no further evidence was taken, and the case was heard upon the evidence which was adduced before the board. There is no conflict in that evidence, but the court below differed from the board in the conclusion to be deduced from the undisputed facts.
It appears that both articles are used in the process of producing extra tough, hard metal, their distinct use being as an admixture with the iron ore which is to be converted into steel. In one sense, they are used interchangeably; that is, both articles are used side by side, the .one being selected when the iron ore has an excess of phosphorus, and the other when it has an excess of sulphur. According to the testimony, when the analysis of the base shows an excess of phosphorus the ferrochrome is used, because it neutralizes the action of the phosphorus; and when it shows an excess of sulphur the manganese is used, because it eliminates the sulphur. The testimony suggests, also, that the two articles are sometimes used interchangeably in another sense. They come in different grades, ranging from 20 to 80 per cent, in the quantity of pure chromium or manganese contained in the article. The testimony suggests that a low grade of ferrochrome is sometimes used as a substitute for ferromanganese. The board of general appraisers apparently did not so understand the testimony, and we are not able to satisfy ourselves that it should be so understood. The question, then, is, no similarity in other respects being shown, whether the similarity in use, notwithstanding the differences in the mode of use of the two articles, establishes their similarity in the sense of action. , „
The terms of the section are satisfied if the use to which the two articles are adapted is similar, although in other particulars there may be no similarity between them. The use referred to is the “employment or effect in producing results.” Murphy v. Arnson, 96 U. S. 133, 24 L. Ed. 773. In Pickhardt v. Merritt, 132 U. S. 258, 10 Sup. Ct. 80, 33 L. Ed. 353, where one of the questions wras as to. the similitude between certain imported dyes and “aniline dyes,” the court instructed the jury that the mere application of the two articles “to the dyeing of fabrics does not create the similitude, but, if there was a similitude in the mode of use, a similitude in the same kind of dyeing, producing the same colors in substantially the same way, so as to take the place of aniline dyes in use, there would be a similitude in úse.” The supreme court approved that instruction. In the present case the two articles are used in the treatment of iron ore to produce a steel of peculiar properties. It would seem that similitude between two
We conclude that similitude, within the meaning of the section, is established by the evidence, and that th« decision of the circuit court was correct.