United States v. Neuman & Schwiers Co. , 1930 CCPA LEXIS 37 ( 1930 )

Bland, Judge,

delivered the opinion of the court:

A kind of wine sauce which is used in the kitchen in the preparation of lobster á la Newburg, shrimp á la Newburg, and various other á la Newburg dishes was, by the collector, classified under the clause:

* * * sauces of all kinds, not specially provided for; * * * 35 per centum ad valorem.

found in the latter part of the prepared-vegetable paragraph, 773, Tariff Act of 1922.

The importer protested the classification, claiming it dutiable as an unenumerated manufactured article at 20 per centum ad valorem under paragraph 1459, or under other paragraphs not necessary to consider here since the importer relies entirely upon the claim that it is an unenumerated manufactured article.

The Government contends that, if not dutiable as assessed, the article should have been classified directly under paragraph 24, or by similitude under paragraph 24 or paragraph 773. The pertinent portion of paragraph 24 is as follows:

Par. 24. * * * and all alcoholic compounds not specially provided for, if containing 20 per centum of alcohol or less, 20 cents per pound and 25 per centum ad valorem; * * *.

The testimony shows that the article is used in the place of sherry in making various á la Newburg dishes and that it is not used on the table as Worcestershire or chili sauce is used. The label on the sample, produced in evidence, calls it “Sauce Theo” and “Sauce Neuburg” and further states that it is used “For all sauces where sherry was used.” On the label also appéars the following:

Tannin_ K

Chlorure of sodium_ CJ1

Assorted spices_ K

Alcohol_'_ CO

Water_ O

A wineglass (about 1)4 gills) for four persons.

The court below held that the article was not a sauce but an ingredient for sauces and that it was not specially provided for, and, therefore, was dutiable as an unenumerated manufactured article at 20 per centum.

The following definitions of the word “sauce” are quoted:

Sauce. 1. A condiment or composition of condiments and appetizing ingredients eaten with food as a relish; esp., a dressing for meat, fish, puddings, etc.— Webster’s New International Dictionary {1929).

Sauce, flavouring or seasoning for food, usually in a liquid or semiliquid state, either served separately or mixed with the dish. — Encyclopedia Britannica {11th Ed.), Vol. XXIV, page S34.

In Bogle v. Magone, 152 U. S. 623, the Supreme Court of the United States gave the common meaning of the word “sauce” as follows:

The word “sauce,” as commonly used, designates a condiment, generally but not always of liquid form, eaten as an addition to and together with a dish of food, to give it flavor and make it more palatable; and is not applied to anything which is eaten, alone or with a bit of bread, ’either for its own sake only, or to stimulate the appetite for other food to be eaten afterwards.

If a broader meaning of the word “sauce” is given than is indicated in the above quotation, it would be inclusive of any substance used to season or flavor food in the process of cooking or preparing it, and its application would lead us far afield in the classification of this character of merchandise.

We agree with the court below that the article in controversy is not a sauce. It may well be a flavoring which might be used in making sauce, but, in its imported condition, it hardly responds to the word “sauce.”

It is not necessary for us to determine whether or not merchandise like that at bar is dutiable directly or by similitude under paragraph 24. The report of the collector and the answer by the appraiser to the protest make no mention of alcoholic content. As far as we know, no analysis of the merchandise was made. The importer did not claim under that paragraph, and in the trial below paragraph 24 was not suggested to the court nor considered' by it in its opinion. Upon appeal the Government assigns as error the fact that the court did not hold the merchandise dutiable under paragraph 24, and here for the first time claims that if it is not dutiable under paragraph 773 it is dutiable under the provision for “all alcoholic compounds not specially provided for, if containing 20 per centum of alcohol or less, 20 cents per pound and 25 per centum ad valorem.” The label on the bottle and the very unsatisfactory evidence as to the. alcoholic content under the circumstances we think would not justify this court in suggesting that the merchandise is dutiable under paragraph 24. It may be that it is an alcoholic compound containing 20 per centum of alcohol or less, but this is an issuable fact and, if classification is sought under the paragraph, the issue should be presented at the proper time upon a proper record.

The importation is not shown to be similar in either material, quality, texture, or use to the articles provided for in paragraph 773, and is, therefore, not classifiable thereunder by similitude. Not being provided for or enumerated in the act, the merchandise is dutiable as an unenumerated manufactured article.

The judgment of the United States Customs Court is affirmed.