DeFremery & Co. v. United States

138 F.2d 161, 31 C.C.P.A. 83, 1943 CCPA LEXIS 125
CourtCourt of Customs and Patent Appeals
DecidedJune 10, 1943
DocketNo. 4382
StatusPublished

This text of 138 F.2d 161 (DeFremery & Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeFremery & Co. v. United States, 138 F.2d 161, 31 C.C.P.A. 83, 1943 CCPA LEXIS 125 (ccpa 1943).

Opinion

Bland, Judge,

delivered the opinion of the court:

In 1936 and 1937 appellant imported into this country from France, at the port of San Francisco, three kinds of alcoholic products, the first of which is known by various names — cassis, Cazanove cassis, and creme de cassis — and which will be referred to hereafter as cassis; the second, green menthe; and the third, cherry cordial. All three products were, by the collector, assessed with customs duty as “cor[85]*85dials” at $2.50 per proof gallon under paragraph 802 of the Tariff Act-of 1930 as modified by the trade agreement with France, T. D. 48316. The collector also assessed internal revenue tax of “$2.00 on each proof gallon or wine gallon when below proof” on all the merchandise as “distilled spirits” under section 600 (a) of the Revenue Act of 1918, 40 Stat. 1057, 1105, as amended by the Revenue Act of 1926, 44 Stat. 9, 104, and as further amended by the Liquor Taxing Act of 1934, 48 Stat. 313 [26 U. S. C. (1934) §1150 (a) (1)].

Appellant first protested the levying of the internal revenue tax on all the merchandise, claiming that it was “assessable at the rate of 1}{ cents on each one-half pint or fraction thereof, in accordance with Section 613 (a) of The Liquor Tax Administration Act approved June 26, 1936,” [49 Stat. 1939, 1952] or “taxable as a wine containing more than 14% and not more than 24% alcohol.”

In an amended protest, appellant claimed that

this merchandise is not subject to internal revenue tax, not being “distilled spirits” within the meaning of section 600-A, revenue act of 1918, as amended; or, if subject to internal revenue tax, the proper rate is 1)4 cents per one-half pint under section 613, revenue act of 1918, as amended.

An alternative claim was made that the cassis

is taxable under section 611 of the revenue act of 1918 as amended, under the provision for wine containing more than 14% and not more than 24% alcohol, either at 20 cents or 40 cents per wine gallon * * *.

In said amended protest appellant also challenged the collector’s classification of the cassis as “cordials” under paragraph 802 of the Tariff Act of 1930 as modified by the French Trade Agreement and claimed that it is dutiable at 70 cents per gallon plus $5 per proof gallon on the alcohol contained therein under paragraph 806. An alternative claim was made that the cassis is dutiable, either directly or by similitude, under paragraph 804 as beverages similar to wine, at $1.25 per gallon or at 75 cents per gallon under said paragraph by virtue of the French Trade Agreement. The correctness of the assessment of customs duty on the green menthe and the cherry cordial under paragraph 802 was not challenged.

The United States Customs Court, Third Division, dismissed one of appellant’s protests, which appellant had abandoned, and overruled the other, entering judgment in favor of the Government. The importer petitioned for a rehearing, which was granted. After considering the further arguments advanced by the importer, the trial court, in a second opinion, adhered to its former judgment. From said judgment overruling the protest, importer has here appealed.

Since two principal issues are involved in this case, we deem it advisable to treat them in separate portions of this opinion. . We shall first consider the customs issue.

[86]*86The Customs Issue

The pertinent provisions of the Tariff Act of 1930 necessary for consideration here read as follows:

Pab. 802. Brandy and other spirits 'manufactured or distilled from grain or other materials, cordials, liqueurs, arrack, absinthe, kirschwasser, ratafia, and bitters of all kinds containing spirits, and compounds and preparations of which distilled spirits are the component' material of chief value and not specially provided for, $5 per proof gallon.
Pab. 802 (Amended by Trade Agreement with France, T. D. 48316)
Brandy- $2.50 per proof gal.
Cordials, liqueurs, kirschwasser, and ratafia_$2.50 per proof gal.
Pab. 804. Still wines, including ginger wine or ginger cordial, vermuth, and rice wine or sake, and similar beverages not specially provided for, $1.25 per gallon: Provided, That any of the foregoing articles specified in this paragraph when imported containing more than 24 per centum of alcohol shall be classed as spirits and pay duty accordingly.
Pab. 806. (a) Cherry juice, prune juice, or prune wine, and all other fruit juices and fruit sirups, not specially provided for, containing * * * one-half of 1 per centum or more of alcohol, 70 cents per gallon and in addition thereto $5 per proof gallon on the alcohol contained therein * * *.

It is appellant’s contention that the cassis involved is not a cordial or a liqueur and therefore is not subject to the tariff duty provided for in the French Trade Agreement. This contention, as before stated, is not made with respect to the green menthe or the cherry cordial. Appellant’s argument is that under certain decisions hereinafter referred to, it is settled law that cordials and liqueurs are beverages and that cassis, being admittedly not - consumed in the condition imported but used chiefly for making cocktails and as flavoring for drinks, such as blending the same with whisky, gin, or brandy, was excluded from the terms “cordials” and “liqueurs” and that these decisions and holdings were called to the attention of Congress in the enactment of subsequent legislation, and that therefore legislative adoption of judicial construction and long-continued administrative practice is thoroughly established. The argument embraces the contention that “cordials,” the term under which the cassis was classified, includes only such “beverages” as are of comparatively high alcoholic content, 35 or 40 per centum, whereas the instant merchandise, cassis, contains only 15 per centum alcohol.

The trial court held that appellant had “not established by the record” that the cassis was not a cordial as classified by the collector.

There is no dispute as to the character or manner of production of the products involved here. The record shows that the cassis contains 15 per centum alcohol by volume, or 30 proof; that it contains 430 grams of sugar per liter (43 per centum sugar by weight); and that it is manufactured in the following manner:

Black currants are put in wine alcohol for 50 or 60 days. The juice thus obtained is mixed with sugar and there results “creme de cassis” (black-currant cordials).

[87]*87On the issue of the levy of said customs duty on the cassis, we think we must accept as being correct, the importer’s contention that, upon the instant record and the application of settled principles of law hereinafter referred to, the cassis cannot be regarded as a cordial as classified by the collector. While the alcoholic content may not necessarily be controlling, it is a matter that is entitled to some consideration, especially in view of the fact that it was held by the Board of General Appraisers (now the United States Customs Court) in the case of O. C. Blache & Co. v. United States, T. D. 23253, as follows:

The article is variously invoiced as “cassis fruit juice,” “fruits au jus,” and “fruit juice,” and was imported in casks.

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138 F.2d 161, 31 C.C.P.A. 83, 1943 CCPA LEXIS 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/defremery-co-v-united-states-ccpa-1943.