Lautier Fils, Inc. v. United States , 6 Cust. Ct. 35 ( 1941 )

WalKer, Judge:

Although, the commodities involved are no.t identical, these suits were consolidated for trial. The merchandise involved in protest 971108-G is described on the invoice as “Terpenes de Bergamot” and was classified by the collector as a natural or synthetic odoriferous or aromatic substance, not specially provided for, under the provision therefor in paragraph 60 of the Tariff Act of 1930, and assessed with duty accordingly at the rate of 40 cents per pound and 30 per centum ad valorem as provided by that paragraph as modified by the French Trade Agreement reported in T. D. 48316. It is claimed by the plaintiff to be entitled to free entry under the provision in paragraph 1731 of the same act for bergamot oil.

The merchandise involved in protest 971109-G is described on the invoice as “ess. Bergamot distillee” and was classified by the collector as an essential or distilled oil not specially provided for under the provision therefor in paragraph 58 of the same act, and assessed with duty at the rate of 12K per centum ad valorem as provided by that paragraph as modified by the French Trade Agreement, supra. It, like the “Terpenes de Bergamot,” is claimed to be entitled to free entry under the provision in paragraph 1731 for bergamot oil.

Considering first the . bergamot • terpenes covered by protest 971108-G, we find some conflict in the evidence offered by both sides. On behalf of the plaintiff one Francois Morel of Grasse, France, testified under a commission issued out of this court. After qualifying himself as the manager of the manufacturing and exporting firm and in charge of the manufacture of the firm’s essential oils and purchase of raw materials, he stated that he had personal knowledge of the production and exportation of the shipment of bergamot terpenes in question. He then testified as'follows:,

18. * * * describe in detail, step by step, the production,of the imported merchandise in the drum marked L. F. 4209, containing Bergamot Terpenes, more particularly described in Direct Interrogatory No. 15.

■ A. The Bergamot Terpenes are obtained by fractional distillation of the oil in vacuum. Such oil contains about 40 to 45% terpenes. When one obtains in the course of the fractional distillation, a Bergamot oil soluble in 1 to 2 volumes of 80° alcohol, one has reached the time when all the terpenes have been removed and thus separated from the oil.

19. If the answer to Direct Interrogatory No. 16 is in the affirmative, please state whether or not in the production of the merchandise contained in drum marked L. F. 4209 (containing Bergamot Terpenes), any ingredient is added, admixed or compounded with the natural Terpenes.

A. The drum L. F. 4209 containing Bergamot Terpenes does not contain anything else. These are pure terpenes resulting from the manufacture of same, as explained under No. 18.

Against this testimony is that of a well-qualified Government chemist who testified that he had made an analysis of a sample from the shipment and found it to have an ester value of 21.2 per centum and an acetyl value of 15.6 per centum, both of which he stated from his experience and from literature on the subject to be too high for true bergamot terpenes. On cross-examination this witness testified:

X Q. Now, with respect to the terpenes of bergamot, is that a squeezed or a distilled product? — A. The terpenes are in all likelihood generally a product which is obtained by distilling the bergamot oil, with the purpose of preparing a so-called terpeneless oil; and this then would be one of the other products obtained besides the terpeneless oil. The terpenes would be one part; the so-called terpeneless oil would be another part, the most valuable portion; and then there would be a certain amount of by-products, for which probably you would have very little use.

Without attempting to reconcile or resolve the conflict, we are nevertheless satisfied from the foregoing that, whether or not the so-called terpenes in question are in fact true terpenes of bergamot, the plaintiff cannot succeed in its claim with regard thereto. It is obvious that the so-called terpenes are in fact a fraction distilled from bergamot oil and, so far as the record indicates, are not either actually or considered to be bergamot oil itself. They are therefore not entitled to classification under the provision for bergamot oil in paragraph 1731, and, plaintiff having failed to establish that some other classification than that made by the collector was correct, we must overrule the protest as to the bergamot terpenes.

With respect to the distilled bergamot oil, so-called, M. Morel testified under the commission as follows:

21. If the answer to Direct Interrogatory No. 15 is in the affirmative, describe in detail, step by step, the production of the imported merchandise contained in the drums marked L. F. 4210 and 4211 (containing Distilled Bergamot Oil), more particularly described in Direct Interrogatory No. 15.

A. Distilled Bergamot Oil is only produced in Italy, as also Handpressed Ber-gamot Zest. Bergamot Oil is produced by two processes: The Bergamot Oil expressed from the peels, by cold process, and the Distilled Bergamot Oil, an absolutely pure product, which does not contain more than 2 to 4% linalyl acetate.

22. If the answer to Direct Interrogatory No. 16 is in the affirmative, please state whether or not in the production of the merchandise contained in drums marked L. F. 4210 and 4211 (containing Distilled Bergamot Oil), any ingredient is added, admixed or compounded with the natural product.

A. The Distilled Bergamot Oil contained in drums marked L. F. 4210 and 4211 does not contain any ingredient added, admixed or compounded with the natural product. It is pure Distilled Bergamot Oil.

While the testimony of M. Morel leaves much to be deshed particularly in the matter of the details of manufacture of the particular oil under consideration, we nevertheless believe that thereby plaintiff has made out a prima facie case sufficient to overcome the presumption of correctness which attaches to official action and to cast the burden of going forward with evidence upon the defendant.

To meet this burden the Government offered the testimony of Arthur I. Gebhardt, the Government chemist hereinbefore referred to, who stated that he analyzed a sample of the merchandise described on the invoice as “Ess. Bergamot distillee”, and testified—

I found in this case that the essence bergamot distillee contained about 3 per cent of ester and about 32 per cent of alcohol. * * * The normal ester content of essence bergamot — oil of bergamot — will vary over somewhat of a range, but from approximately 34% to as high as 42% of ester.

The witness, when interrogated at this point as to what was his authority for his assertion, answered as follows:

Q. Is that a standard work? — A. It is.

Q. Available in the United States? — A. Yes, sir.

Q. Consulted by chemists? — A. Yes, sir.

Q. Well, Parry has a book, too, hasn’t he? — A. Parry gives approximately the same figures.

Q. What is the name of Parry’s book?' — A. Essential Oils — The Chemistry of Essential Oils, I believe is the exact name.

Q. Is that a standard work, too? — A. Yes, sir.

Q. And available in the United States? — A. Yes, sir.

Q. And consulted by chemists? — A. Yes, sir.

Q. And you will find the normal ester content in those books, won’t you? — A. Yes, sir.

Q. Is there a book known as Finnemore’s Essential Oils? — A. Yes, sir.

Q. Is that a standard work? — A. Yes, sir.

Q. And that is available in the United States, and consulted by chemists?— A. Yes, sir.

Finally, in direct examination the witness being asked to what conclusion he had come by reason of the ester content of the sample he analyzed, answered:

The conclusion was that this was not a bergamot oil, as usually recognized for this class of material, but that it is a type of oil which is in all likelihood obtained by distilling residues from the manufacture of bergamot oil, or from unripe fruit, or things of that nature.

and he testified that he reported as follows to the collector:

The sample is not a distilled bergamot oil. As far as can be determined it appears to be an oil made by distilling the residue and expressed rind of bergamot. It is an essential oil, n. s. p. f.

: Reference to two of the authorities cited by Mr. Gebhardt, namely, Gildermeister & Hoffman and Parry, confirms his statement as to the normal ester content of bergamot oil varying from 34 to 42 per centum. However, these figures, it appears, are given for the expressed oil and not for distilled oil of bergamot. Of the distilled oil Parry says:

Distilled bergamot oil, obtained by distilling the residues from the expression process, is of very low odour value, having a specific gravity as low as 0.865 and an ester content which may fall as low as 5 per cent.

and Gildermeister & Hoffman say:

From the residues of separation (feccie di bergamotto), and filtration, also from the expressed rinds, an oil is occasionally obtained by distillation. This is. also added to the .normal bergamot oil. It is colorless or yellowish; d 15° about 0.865; a D (determined for one sample 24° 39'; ester content 3 to 6 per cent.

Analyzing carefully the authorities cited by the witness Gebhardt it seems quite clear that he has confounded the expressed oil of bergamot with the distilled oil of bergamot, the subject here, and his answers and discussion, are entirely at cross-purposes with the matter at issue.

The paragraph under which claim is made is headed:

Oils, distilled or essential: * * *

and one of the oils named is “bergamot.” A proviso to the paragraph reads as follows:

Provided, That no article mixed or compounded with or containing alcohol shall be exempted from duty under this paragraph.

The evidence indicates that the distilled oil of bergamot in issue was not mixed or compounded with alcohol and that it contains no alcohol as such. On the record presented we are compelled to hold that the plaintiff has established that the article in issue is distilled oil of bergamot entitled to free entry under paragraph 1731. We take occasion to note, however, that a more complete record might have resulted otherwise, but on the record as it stands before us we are compelled to find that the protest as to the oil should be sustained.

Judgment will therefore issue sustaining protest 971109tG as to the bergamot oil, and overruling protest 971108-G as to the bergamot terpenes.