United States v. Merck & Co., No. 1802

No. 1802 | C.C.P.A. | May 21, 1917

Smith, Judge,

delivered the opinion of tbe court:

Phosphoric acid anhydride imported at the port of New York in packages of 2-)- pounds or less gross weight was classified by the collector of customs as a chemical or medicinal compound dutiable at 20 per cent ad’ valorem under the provisions of paragraph 17 of the tariff act of -1913. Phosphoric acid anhydride imported in larger packages was classified as an acid anhydride, dutiable at 15 per cent ad valorem under the provisions of paragraph 1 of said act. The pertinent parts of paragraphs 17 and 1 are as follows:

17. Chemical and medicinal compounds, combinations, and all similar articles dutiable under this section, except soap, whether specially provided for-or not, put up in individual packages of 2 J pounds or less gross weight (except samples without commercial value) shall be dutiable at a rate not less than 20 per centum ad valorem; * * *.

1. * * * All other acids and acid anhydrides not specially provided for in this section, 15 per centum ad valorem.

The importers protested that the merchandise was free of'duty under that part of the free list which reads as follows:

BEBE LIST.

That on and 'after the day following the passage of this act, except as otherwise specially provided for in this act, the articles mentioned in the following paragraphs shall, when imported into the United States, * * * be exempt from duty: * * *.

387. Acids: * * * phosphoric, * * *.

The Board of General Appraisers sustained the 'protest, and the Government appealed.

The merchandise under- consideration, due to its avidity for water and moisture, is used as a drying agent for laboratory purposes and is put up in bottles which bear the following label: “Poison. 1 lb. Phosphoric Anhydride Merck ("Anhydrous Phosphoric Acid”) Perfectly White.”

The appraiser reported that the merchandise described on the invoice as acid phosphoric P205 was a white powder which, when, combined with water, formed two distinct acids-known as metaphosphoric acid and orthophosphoric acid, the latter being the ordinary phosphoric acid. The appraiser stated in his report that the merchandise was the same article which was held to be free of duty as phosphoric acid under paragraph 482 of the tariff act-of 1909. Prom this report it is apparent that the customs officials did not regard the article imported as phosphoric acid, but as the material from which the acid is made. Scientifically speaking, it may be that an acid anhydride is not an acid at all and that to make an acid out of it the chemical reaction .produced by water or moisture is necessary. If, however, a commodity is uniformly, generally, and definitely known in the trade and bought and sold in the trade as an acid, it is for tariff purposes an acid and its scientific designation is not determinative of classification, inasmuch • as the language used must be presumed to be that of trade and commerce and not that of science. The question in the case, therefore, is whether phosphoric anhydride' is generally, uniformly, and- definitely known to the trade as phosphoric acid and bought .and sold by the trade under that designation. The uncontradicted testimony submitted to the board by the importers established that phosphoric acid, as it is regarded in the trade, covers “phosphoric acid glacial,” a form of hydrous phosphoric acid, “phosphoric acid sirup,” a hydrous phosphoric acid, and “phosphoric acid anhydride,” and that to fill an order for phosphoric acid it must be specified whether phosphoric acid' in the glacial, sirup,- or anhydride form is desired. From catalogues and price lists introduced in evidence it appeared that drug and chemical firms carried phosphoric anhydride as an acid and as a form of phosphoric acid. It also appeared that whether the anhydride is invoiced as phosphoric acid anhydride, or as acid phosphoric anhydride, or as phosphoric anhydride, the same article is meant, and that to the trade those designations uniformly and always signify a single definite form of phosphoric acid, and merchandise of the kind here involved. . From that evidence we conclude that phosphoric anhydride is, commercially speaking, a form of phosphoric acid.

Moreover, paragraph 482 of the tariff act of 1909 provided for the free admission of phosphoric acid, and under that provision and on testimony substantially the same as that now submitted to us for consideration, phosphoric anhydride was admitted free as phosphoric acid. There being no change in the commercial meaning attaching to the designation “phosphoric acid,” it must be assumed, therefore, that when Congress came to pass the. tariff act of 191-3 it was aware of the fact that in the trade and commerce of the country phosphoric anhydride was a form of phosphoric acid, and from that it follows that the retention by Congress of the designation acid phosphoric without qualification in the free fist of the act of 1913-was a legislative approval of the classification of phosphoric anhydride as phosphoric acid. It is true that “acid anhydrides” were not specially mentioned in the tariff act of 1909 and that acid anhydrides not specially provided for are by name subjected to duty in paragraph 1 of the act of 1913, but that provision can not be construed as covering an anhydride which in trade and commerce is phosphoric acid and is specially provided-for in the free fist. And besides all that, as the term “acid anhydrides” includes the anhydrides of all acids it is moro comprehensive and less specific than the designation “phosphoric acid,” which embraces the' anhydride of phosphoric acid only.

The decision of the Board of General Appraisers is affirmed..