Leerburger Bros. v. United States 141 F. 1023

LEERBURGER BROS. v. UNITED STATES.

(Circuit Court, S. D. New York.

December 13, 1904.)

No. 3,434.

Customs Duties—Classification—Mabasque Water—Diluted Cherry Juice.

The article known as “marasque water” or “eau de marasque,” which is produced by distilling the juice of crushed cherries, diluted somewhat with water used in the distilling process, is not dutiable as cherry juice, under Tariff Act July 24, 1897, c. 11, § 1, Schedule H, par. 299, 30 Stat. 174 [U. S. Comp. St. 1901, p. 1,655], but as an unenumerated manufactured article under section 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].

On Application for Review of a Decision of the Board of United States General Appraisers.

This case relates to a decision of the Board of General Appraisers, G. A. 5,437 (T. D. 24,715), which overruled the protest of Leerburger Bros, against the assessment of duty by the collector of customs at the port of New York.

This merchandise consisted of an article known as “marasque water” or “eau de marasque,” which is produced by distilling the juice of crushed cherries, some water being added in the process, and which is used exclusively as a flavoring for confections, candies, marshmallows, etc. It was invoiced at about 80 cents per gallon and contained 10.45 per cent, of absolute alcohol by volume, which was produced by fermentation; none being added extrinsically. The importers contended that the commodity was dutiable as an unenumerated manufactured article under Tariff Act July 24, 1897, c. 11, § 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693]; but the board held it to be subject to the provision for cherry juice in paragraph 299, Schedule H, § 1. 30 Stat. 174 [U. S. Comp. St. 1901, p. 1655], or, if not to be considered cherry juice in fact, to be at least dutiable as such by similitude, under section 7. 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].

It was observed in the opinion of the board:

“SOMERVILLE, General Appraiser. The juice of the cherry, as observed in Smith v. Rheinstrom, 65 Fed. 984, 13 C. C. A. 261, is nothing but the sap obtained by expression. In re Curtice, G. A. 5,205 (T. D. 23,987). The addition of water to it would seem to work no change in the article, except to make it diluted cherry juice. In any event, if this addition of water has produced such a change in the article as to take it out of the description of any of the terms used in the tariff act, it would still, in our judgment, more nearly resemble cherry juice, as described in said paragraph 299, than any other article enumerated in the- act. The material is almost identical; the only difference being that it has been weakened by water.”

William B. Coughtry, for importers.

D. Frank Lloyd, Asst. U. S. Atty.