United States v. Lo Curto , 1929 CCPA LEXIS 74 ( 1929 )

Hatfield, Judge,

delivered tbe opinion of the court:

This is an appeal from the United States Customs Court.

Merchandise known as whiteoline and consisting of a chemical compound — copper sulphocyanide (CuCNS) — was assessed for duty by the collector as a chemical compound at 25 per centum ad valorem under paragraph 5 of the Tariff Act of 1922, which reads as follows:

Par. 5. 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.

The importer protested the collector’s classification, claiming that the merchandise was free of duty under paragraph 1565, which reads as follows:

Par. 1565. Cyanide: Potassium cyanide, sodium cyanide, all cyanide salts and cyanide mixtures, combinations, and compounds containing cyanide, not specially provided for.

Two expert chemists testified for the Government on the trial below. In substance, they said that the imported merchandise was not a cyanide salt, a cyanide mixture, a combination of cyanides, nor a compound containing cyanide; that it was a chemical compound resulting from the combining of cyanogen (CN), copper (Cu), and sulphur (S); that copper cyanide is produced by combining cyanogen with copper, but that the addition of sulphur causes a chemical reaction which destroys the cyanide and forms an entirely new substance— a chemical compound — which differs radically from the original elements; that copper sulphocyanide does not, in fact, contain cyanide; and that the uses of the imported chemical compound and cyanides are entirely different.

It is elementary that duty must be assessed upon imported merchandise in its condition at the time of its importation. This chemical compound, if we may rely upon the testimony of these expert witnesses, did not contain cyanide in any form.

It will be observed that paragraph 1565, supra, starts with the word “Cyanide:”, then follows a provision for “Potassium cyanide, sodium cyanide, all cyanide salts and cyanide mixtures, combinations, and compounds containing cyanide, * * (Italics ours.)

• The Congress has plainly provided for mixtures of cyanide, combinations of cyanide, and compounds containing cyanide and other materials. Whether the paragraph was intended to cover chemical compounds need not be discussed. We know, however, that a compound, whether chemical or mechanical, must contain cyanide in one of its various forms in order to be entitled to classification under paragraph 1565. The provision for compounds does not include compounds made from cyanides; it is limited to compounds containing them.

The imported article may be a cyanide salt, but, in the face of the uncontradicted testimony of two concededly qualified expert witnesses that it is not, we are unwilling to hold that it is. Furthermore, it is not a mixture or a combination of cyanides for two obvious reasons: First, it is a chemical compound, and, therefore, can not be a mixture nr combination of cyanides; second, assuming that it contains a cyanide, it also contains elements other than cyanide, therefore, it can not be a mixture or combination of cyanides. Strohmeyer & Arpe Co. v. United States, 2 Ct. Cust. Appls. 285, T. D. 32035. It is not a compound containing cyanide, for the reasons heretofore stated.

In the case of United States v. Davies, Turner & Co., 16 Ct. Cust. Appls. 50, T. D. 42719, this court was called upon to consider the dutiable status of ammonium sulphocyanide. In view of the fact that the parties had failed on the trial below to introduce the testimony of those having expert knowledge of the subject, the court considered it proper to resort to Thorpe’s Dictionary of Applied .Chemistry and other authorities for information. Basing our decision upoii the information thus obtained, we held that a chemical compound — ammonium sulphocyanide — was- free of duty under paragraph 1565, supra. In disposing of the case, the court called attention to the fact that, in a case involving highly technical questions, it should be. assisted by the testimony of expert and qualified witnesses. We went so far as to suggest that it was unfair to the court to present such a case without such testimony. The Government has followed the court’s suggestion in the case at bar. Of course, if the testimony of expert witnesses, in a case of this character, is inconsistent with known scientific facts, or if for any other reason it ought to be rejected, we are not bound to accept it. However, in the case at bar, we are unable to see any sound reason for the rejection of the testimony.

As was said in the Davies, Turner & Co. case, supra, “Thorpe’s Dictionary of Applied Chemistry (1918), volume 2, page 180, describes cyanides” as “Compounds of the radical cyanogen CN.” But it does not follow that all compounds of the radical cyanogen (CN) are cyanides. In this connection the witness, Doctor Knight, said:

* * * Cl means chlorine just the same as CN means cyanogen, but only in certain cases does CN mean cyanide.

* * * * * * •

Q. Is that this preparation, a radical in which CN is chemically combined with copper? — A. No; it is not.

Q. Isn’t it combined with something else? — A. It is combined with the sulphur to form another radical that is entirely different from the CN; that is, the CNS radical is entirely different; than that complex radical of CNS is then combined with the copper, but that is entirely different from the CN coupled alone with the copper.

Q. CN is merely a gas? — A. Cyanogen alone is a gas. When it is combined it is still cyanogen, but it is combined with other elements; but when it is combined alone with one element, then it is a cyanide, but if it is combined with a number of elements then it is a cyanogen compound and not a cyanide.

Q. When CN is combined with S (for sulphur) that changes the characteristics of it entirely? — A. Yes; it is no longer a cyanide. It is a thiocyanate or a sul-focyanate, sometimes incorrectly called sulfocyanide.

Justice Beown. CuCN is copper cyanide.

The'Witness. Yes.

Justice Beown. Is not this thing a compound containing copper cyanide?

The Witness. No; because you can’t take the CuCN and separate it from the sulphur, because it is coupled up in a different way. The CN is coupled up very intimately with the sulphur to form a new compound. It is combined with potassium to form an entirely different product.

Doctor Knight’s testimony is corroborated by the testimony of the witness, L. B. McSorley, who, among other things, said:

Q. Do you know what copper sulfocyanide is? — A. I do.

Q. Will you state the formula? — A. CuCNS.

Q. Is there a radical part of that formula? — A. The radical sulfocyanogen.

Q. What is the radical? — A. CNS.

Q. Just what does that mean? — A. That means that copper sulfocyanide is a copper salt of sulfocyanic acid or thiocyanic acid.

Q. How does that acid differ from the other acid you have mentioned from which you get sodium cyanide? — A. It has a number of different characteristics. In the first place the sulfocyanides are not poisonous as are the cyanides on decomposition. When treated with acid the cyanides liberate hydrocyanic acid and the sulfocyanides liberate sulfocyanic acid.

Q. Is there a difference between the radical CN and the radical CNS? — A. There is.

Q. Will you tell us in a brief way, a brief general way, about what the difference is between the radical CN and the radical CNS, as to their characteristics and habits. — A. The essential difference is that the sulfocyanic radical has an atom of sulphur added to the CN, forming an entirely new radical, thiocyanate or sulfocyanate, which arc not used interchangeably with the cyanides because they do not possess the same properties. For instance, iron sulfocyanide has a very characteristic, deep red color and is largely used in laboratories as a test for the presence of iron. Copper sulfocyanide has a chocolate color, entirely distinct from the copper cyanide; and in the use to which a cyanide is put sulfocyanides would not be applicable. For instance, I myself have done a little electrochemical work in plating metals from solutions, and the results obtained by plating from a cyanide solution — that is, in a laboratory way — are far better and far different than the results obtained from attempting to plate from a sulfocyanide solution.

It seems to us that the testimony in the case is not inconsistent with the language contained in Thorpe's Dictionary of Applied Chemistry, but, on the contrary, interprets and amplifies it.

For the reasons stated, we are of opinion that the merchandise is not included within the provisions of paragraph 1565, and that it was properly classified by the collector under paragraph 5.

The judgment is reversed.