National Polychemicals, Inc. v. United States

62 Cust. Ct. 453, 1969 Cust. Ct. LEXIS 3497
CourtUnited States Customs Court
DecidedApril 23, 1969
DocketC.D. 3801
StatusPublished

This text of 62 Cust. Ct. 453 (National Polychemicals, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Polychemicals, Inc. v. United States, 62 Cust. Ct. 453, 1969 Cust. Ct. LEXIS 3497 (cusc 1969).

Opinion

WatsoN, Judge:

The involved protest was filed by an American (manufacturer of a chemical compound sometimes referred to as “dinitrosopentamethylenetetramine” (hereinafter referred to as “DNPT”). Concededly, the jurisdictional prerequisites specified in section 516 (b) of the Tariff Act of 1930, as amended, relative to a protest by a domestic manufacturer, have been complied with.

The regional commissioner classified the merchandise in question under item 425.10 of the Tariff Schedules of the United States, at the rate of 1014 per centum ad valorem under the provision therein for “Cyanuric chloride, melamine, and other compounds containing a triazine ring”. Plaintiff claims the merchandise properly dutiable under item 425.52 of said tariff schedules at the compound rate of duty of 3 cents per pound and 15 per centum ad valorem under the “basket” provision in said item for “other” nitrogenous compounds.

The record discloses that “DNPT” is used commercially as a blowing agent or “gas generator”, i.e. to expand rubber or plastics into sponge or foam forms (K>. 69).

Essentially, it is the position of the plaintiff that “DNPT” is not a nitrogenous compound “containing a triazine ring”. In this connection, plaintiff maintains that any determination of whether “DNPT” does or does not contain a “triazine ring” must include official and recognized systems of nomenclature and structure for the compound in question as well as its use in trade. It is the position of the plaintiff that “DNPT” does not contain a triazine ring as defined by any officially recognized system of nomenclature or of structure and, further, that it is not known in commerce as a compound containing a triazine ring. Plaintiff further maintains that there are no common characteristics of nomenclature, structure, manufacture or use between “DNPT” and those compounds specifically named in item 425.10. It appears that a ring system or a “ring” describes a chemical compound in which the atoms are connected to each other in such a manner that the last atom attaches itself to the first, thereby making a “ring”. (Brief of party in interest, page 7.) With respect to the provision for “other compounds containing a triazine ring”, plaintiff contends that this refers to other compounds containing a triazine ring of the type exemplified by melamine and cyanuric chloride, that is unsaturated monocyclic six-membered ring composed of three carbon and three nitrogen atoms [455]*455(oral argument, page 6) ; that “DNPT” is saturated, that is, with no double bonds. In this connection, defendant’s witness, Dr. Modest, hereinafter identified, on direct examination testified as follows:

Q. I note, Dr. Modest, that you have not included in the diagram of the three ring isomers any indications of double bonding. Would you please explain why you have not done so? — A. While it is true that the parent ring system of a nitroheterocycle is generally represented in the fully aromatic, or unsaturated state, my own definition of a nitrogen heterocyclic ring system is one that includes all of the atoms of that ring system in whatever state of hydrogenation.
Q. And what does hydrogenation mean? — A. It simply means the addition of hydrogen atoms to the fully unsaturated molecule, either partially or completely. If there is complete hydrogenation the ring system or molecule contains as many hydrogen atoms as it can, and it is then called perhydro, or, in the case of the six-membered ring system, hexahydro.
Q. How, then, in summation, do you define what is meant properly by a triazine ring? — A. I define a triazine ring as a six-membered heterocyclic ring system containing three nitrogen and three carbon atoms. [E. 87-88.]

Four witnesses were called to testify at the trial. Two of the witnesses were called by the plaintiff and one each by the defendant and party in interest.

Dr. Kurt L. Loening, plaintiff’s first witness held B.S. and Ph. D. degrees in chemistry conferred by Ohio State University. He had never engaged in any independent research directly in triazine compounds, but had been employed from 1951 until 1959 as associate editor of the Chemical Abstracts Section of the American Chemical Society, as senior associate editor from 1959-1963, and from the latter date until the time of trial, as associate director and then director of the Nomenclature Section of the Chemical Abstract Services of the society. His duties in the above positions had been to index and edit “Chemical Abstracts”, a publication covering the “world chemical literature”, and had involved him in “solving nomenclature problems” (E. 10).

Mr. William P. ter Horst, plaintiff’s second witness, was a graduate of the Federal Institute of Technology, Zurich, Switzerland, in chemical engineering. The record discloses that he had engaged in research in triazine compounds, was the author or coauthor of two scientific publications, and has had some 120 patents issued to him, mainly on rubber chemicals, agricultural chemicals, and polymers (E. 63). He testified that he was familiar with systems and nomenclature used in trade and commerce as regards melamine and cyanuric chloride, but that prior to his consulting services and testimony in the case at bar, he was only “vaguely” familiar with systems and nomenclature used in trade and commerce as regards “DNPT” (E. 64).

[456]*456Dr. Edward Modest, called as an expert witness by the defendant, holds a bachelor and master’s degree in chemistry from Harvard University, as well as a Ph. D. in organic chemistry from the same University. He is a member of various chemical societies and associations and is the author of a number of articles or books relating to the field of chemistry and various chemical compounds (defendant’s exhibit A for identification, E. 76), one of which is a chapter on “S-Trianzines” in volume 7 of the series on “Heterocyclic Compounds” edited by Dr. Eobert Elderfield. The witness stated that he had become particularly familiar with the chemical structure and nomenclature of “DNPT” by reason of his being called to testify in the present proceeding (E. 79).

Dr. Francis E. Condon, called as a witness by the party in interest, is the holder of A.B. and Ph. D. degrees in chemistry from Harvard University. It appears from the record that this witness was qualified by his general education in chemistry and by his study of literature concerning “DNPT” prior to the present action to describe the characteristics and properties of the triazine ring here under discussion. It was stipulated at the trial that the testimony of this witness par-icularly with respect to the properties and characteristics of the triazine ring, would be the same as that of the Government’s witness, Dr. Modest (E. 120).

Plaintiff’s exhibit 1 is a diagram of “S-Triazine, or also 1,3,5-Triazine” (E. 24). Plaintiff’s exhibit 2 is a diagram of “DNPT” (E. 33). Plaintiff’s exhibit 3 is a diagram of the chemical compound, melamine (E. 39). Plaintiff’s exhibit 4 is a diagram of the chemical compound, cyanuric chloride (E. 41-43). Plaintiff’s exhibit 5 is a diagram of a chemical compound allegedly indicating the presence of a triazine ring which is “unsaturated” (E. 44). Plaintiff’s exhibit 6 is a page from a booklet entitled “Definitive Eules for Nomenclature of Organic Chemistry” received in evidence in connection with the application of so-called “Eule-B-1” of Chemical Abstracts (E. 126) to nitrogen rings containing nitrogen compounds (E. 127).

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62 Cust. Ct. 453, 1969 Cust. Ct. LEXIS 3497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-polychemicals-inc-v-united-states-cusc-1969.