Sandoz Chemical Works, Inc. v. United States

47 Cust. Ct. 80
CourtUnited States Customs Court
DecidedSeptember 20, 1961
DocketC.D. 2284
StatusPublished

This text of 47 Cust. Ct. 80 (Sandoz Chemical Works, 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
Sandoz Chemical Works, Inc. v. United States, 47 Cust. Ct. 80 (cusc 1961).

Opinion

WmsoN, Judge:

The merchandise in the case at bar, invoiced as Methylphenylethylhydantoin and hereinafter referred to as “Mes-antoin,” was classified under paragraph 28(a) of the Tariff Act of 1930 at the rate of 45 per centum ad valorem and 7 cents per pound as a coal-tar medicinal, under the provision therein for “other medic-ináis.” Plaintiff claims the merchandise properly dutiable under paragraph 5 of the said act at the rate of 25 per centum ad valorem as a medicinal preparation, not specially provided for. It appears that the imported product is an anticonvulsant, used in the treatment of epileptic seizures.

Paragraph 28, Tariff Act of 1930:

(a) * * * acetanilide suitable for medicinal use, acetphenetidine, acetyl-salicylic acid, antipyrine, benzaldehyde suitable for medicinal use, benzoic acid suitable for medicinal use, beta-naphthol suitable for medicinal use, guaiacol and its derivatives, phenolphthalein, "resorcinol suitable for medicinal use, [82]*82salicylic acid and its salts suitable for medicinal use, salol, and other medic-ináis; * * * all the foregoing products, provided for in this paragi’aph, when obtained, derived, or manufactured in whole or in part from any of the products provided for in paragraph 27 or 1651; * * * 45 per centum ad valorem and 7 cents per pound.

Paragraph 5, Tariff Act of 1930;

All chemical elements, all chemical salts and compounds, all medicinal preparations, and all combinations and mixtures of any of the foregoing, all the foregoing obtained naturally or artificially and not specially provided for, 25 per centum ad valorem.

Plaintiff, a manufacturer of pharmaceuticals and dyestuffs, contends that the words “and other medicináis,” contained in paragraph 28(a), above quoted, are intended to embrace only those medicinal preparations wherein the coal-tar ingredient contributes to the therapeutic value of the preparation, maintaining, in this connection, that the coal-tar element in the imported product makes no contribution to its therapeutic effect. Plaintiff further contends that these same words, “and other medicináis,” are intended to include only those medicinal preparations which are ejusdem generis with the 12 named substances in said paragraph 28(a) beginning with “acetanilide” to and through “salol.”

The Government, on the other hand, in support of the collector’s classification, maintains chiefly that the merchandise at bar, being chiefly used in the field of medicine, and being obtained, derived, or manufactured in whole or in part from one of the products provided for in paragraph 1651 of the tariff act, is properly classifiable under the provisions of paragraph 28 of said act. Further, the defendant contends that the rule of ejusdem generis, invoked by the plaintiff herein, is not applicable in the case at bar “as a matter of law,” and that, even if the rule be held to be applicable in this case, plaintiff has failed to establish that the imported product, Mesantoin, is or is not ejusdem generis with the other named medicináis in paragraph 28(a).

Five witnesses testified on behalf of the plaintiff, the first of whom was Mr. Eocco Sorrentino, employed by the plaintiff since 1941 in the capacity of registered pharmacist. He is in charge of the tableting department and of compounding and manufacturing, and also supervises the raw materials chemical stock of the company. He identified two samples of the imported merchandise which were withdrawn under his direction (plaintiff’s collective exhibit 1, E. 8). A deposition by Dr. August Binkert, director of Sandoz, Ltd., Basel, Switzerland, who supervised the production of Mesantoin at the foreign plant of the plaintiff company, together with a certificate of translation of the answers to questions propounded, was received in evidence as plaintiff’s collective exhibit 2 (E. 12). Dr. Binkert described the production of “Mesantoin” as follows:

[83]*8312.) Tbe 5,5-phenylethylhydantoin is obtained by condensation of phenylethyl-ketone (propiophenone) with sodium cyanide, ammonia and carbonic acid in aqueous-alcoholic solution. It is methylated to 3-methyl-5, 5-phenyl-ethyl-hydan-toin in aqueous-alcoholic solution with dimethylsulfate and purified by recrystallization from alcohol.

It appears from said deposition, as disclosed by its structural formula, that there are four groupings in the imported Mesantoin, namely, a phenyl group, which is the C6H5 group in the structural formula, an ethyl group, a methyl group, plus hydantoin (E. 17).

Mr. Dominick Maresca, chief chemist for Sandoz Chemical Works, Inc., at its New Jersey plant, testified that he was familiar with the method of production of Mesantoin, as heretofore described by Dr. Binkert; that one of the starting materials used in this method of production was propiophenone which is “phenylethylketone” containing a phenyl group, explaining, in this connection, that a ketone is “a carbonyl group linked to two either alkyl or aryl groups, which may be alike or different” (E. 14). Plaintiff’s witness stated that there are ketones that have no phenyl group, such as methylethylketone, and that the latter could be used in the production of hydantoin. Mr. Maresca then stated that the finished product, Mesantoin, has this phenyl group, inasmuch as “We started with it in the propiophenone, so it winds up in the end product. The process called for it” (E. 15). The witness testified, in this connection, that the finished product, Mesantoin, is a “compound” (E. 18) made up of four basic atoms. The witness agreed that, in the production of Mesantoin, you start with the benzene ring, a coal-tar derivative, and wind up with that as part of the final product (E. 25). On cross-examination, Mr. Maresca testified that the finished Mesantoin is not a mixture of the ethyl, methyl, phenyl, and hydantoin groupings, but that it is one chemical identity (E. 31).

Plaintiff’s third witness was Dr. Harry L. Kozol, recipient of the degree of bachelor of science, Harvard University, 1927, and doctor of medicine, Harvard, 1934. The record discloses Dr. Kozol had studied organic, analytical, and advanced inorganic chemistry; that he had been house officer in medicine, Massachusetts General Hospital, from 1934-1936; that he had taught in Harvard Medical School, 1937; that he had been house officer, Johns Hopkins University, Department of Psychiatry, 1937-1938, and, while at the latter institution, had taught in the Department of Psychiatry (E. 36-38).

Dr. Kozol testified that he had specialized in the field of epilepsy and that he had used the imported product, Mesantoin, in the treatment of epileptic cases; and that he had also treated such cases while at Johns Hopkins. The record further discloses that, in 1944, plaintiff’s witness became director of the Epilepsy Clinic of Boston City Hospital connected with the Department of Neurology of Harvard Medical School, [84]*84and that, while there, performed general neurological work, specifically in the field of epilepsy (E. 41-42), at which time he first became interested in “Mesantoin” (E. 47). This witness is presently on the faculty of Harvard Medical School where he teaches neurology. Dr. Kozol has written numerous articles on the subject of epilepsy and its treatment, specifically with respect to the imported product, Mesantoin.

Dr.

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Bluebook (online)
47 Cust. Ct. 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandoz-chemical-works-inc-v-united-states-cusc-1961.