Fuerst Bros. & Co. v. United States

176 F. 95, 100 C.C.A. 25, 1909 U.S. App. LEXIS 4976

Opinion

NOYES, Circuit Judge

(after stating the facts as above). The term “cocoanut oil” in the free list is broad enough to include refined as well as unrefined oil. The merchandise in question is refined cocoanut oil, and consequently it is entitled to free entry unless it is more specifically provided for elsewhere.

The Circuit Court and the Board of Appraisers apparently held that the merchandise was properly assessed for duty as “cocoa butterine” because the importers had failed to show that it was not suitable for use as a substitute for cocoa butter.

We are by no means certain that the importers, having shown that the provision of the free list applied to this article, were obliged to go further and offer evidence to negative the application of the cocoa but-terine paragraph. Refined and unrefined cocoanut oil might both be used as substitutes for cocoa butter without making “cocoa butterine” a more specific designation for them than “cocoanut oil.”

But, assuming that the burden was upon the importers to show the nonapplication of the “cocoa butterine” paragraph, we think that they 'sustained it. We are fully satisfied from the evidence that, refined cocoanut oil is not cocoa butterine, and that if it could be used as a substitute for cocoa butter, still it is more specifically described in the provision of the free list than in paragraph 282 (Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 [tí. S. Comp. St. 1901, p. 1652]).

The case of United States v. Oriental American Co. (C. C.) 129 Fed. 249, T. D. 25,179, is directly in point and is approved.

The decision of the Circuit Court is reversed.