by virtue of the Tariff Act of 1922, which act was repealed by Section 651 (a) (1) of the Tariff Act of 1930. In the Sandoz case above cited the Court of Customs Appeals held that customs officers had no authority to take duty upon other than the true weight of the dyes until standards were established as provided in paragraph 28 of the Tariff Act of 1922. The same is true under the Tariff Act of 1930. The customs officers had no authority to take duty upon other than the true weight of the dyes in this case until standards were established as provided in paragraph 28 of the Tariff Act of 1930. The record shows that no such standards were established. The customs officers had no authority to take the specific duty upon the basis of standards established before the Tariff Act of 1930 was passed, because that act provides for the assessment of duty on standards which "shall be established."

It is obvious from the language of paragraph 28 (h) of the Tariff Act of 1930 that Congress intended that new standards must be established under that act. Paragraph 28 says that the "Secretary of the Treasury shall adopt a standard of strength for each dye." It provides that under certain circumstances the standard of strength "shall conform as nearly as practical to the commercial strength in ordinary use." Obviously, this does not mean the strength in ordinary use in 1922, but the strength in ordinary use in 1930, when the Tariff Act was passed. This necessitates the establishment of standards under the Tariff Act of 1930. As no such standards have been established, the colors in question are subject to specific duty only on their imported weight.

In answer to that the Government attorney argues as follows:

The standards of strength adopted by the Secretary of the Treasury and embodied in the Treasury Decisions above enumerated were promulgated by the Secretary under the authority given that officer by paragraph 28 of the Tariff Act of 1922. They were, therefore, valid regulations having the binding force and effect of law. Upon the repeal of the Tariff Act of 1922 and the enactment of the Tariff Act of 1930, these regulations, as far as they are applicable to this case, were not modified, amended or repealed by the Secretary. In the absence of any such modification, amendment or repeal they are regarded as having been repromulgated under the new act by the Secretary. This principle is firmly established in Customs jurisprudence.

In United States v. McGraw Wool Co., 19 C. C. P. A. 205; T. D. 45296, the Court of Customs and Patent Appeals declared, at Pages 209-210:

It is true that a regulation of the Secretary of the Treasury, duly promulgated in pursuance of the authority given to the Secretary in a tariff act by Congress, will continue in operative force and effect, in the absence of any order of the Secretary repealing or modifying the same, or, in the absence of a new regulation in lieu thereof, after a new tariff act containing a like power to make regulations has been enacted and has become effective. This, however, is not because of any continuing vitality of the regulation itself, but is because it is assumed that the Secretary by the absence of action on his part has assented to and repromulgated the former regulation for the time being. The moment he acts, however, under the new tariff act such new action constitutes his regulation and the former one becomes, by that act, abrogated.

Thus the plaintiff is in error in its contention that the standards of strength adopted by the Secretary of the Treasury in 1924 and 1925 were automatically repealed by the enactment of the Tariff Act of 1930. On the contrary, as stated by the appellate court, said standards of strength must be regarded as having been readopted and therefore controlling as to importations involving these commodities under the Tariff Act of 1930.

The case of United States v. Sandoz Chemical Works, 14 Ct. Cust. Appls. 21; T. D. 41542, relied on by the plaintiff, is easily distinguishable. There the Secre

142679-35-VOL 67-53

tary of the Treasury first established standards of strength on August 14th, 1923, which standards were superseded by others on May 17th, 1924. The entries were made prior to August 14th, 1923, and were liquidated prior to May 17th, 1924. The Government conceded that the standard of strength used by the Appraiser and the Collector was the result "of information obtained by the Appraiser's office from the trade and was not the standard established by the Secretary of the Treasury."

The Appellate Court held the use of such standards to be in error on the ground that only such standards as those established by the Secretary may be utilized under the provisions of paragraph 28.

Conclusion

We respectfully submit that in view of the foregoing, the protest should be overruled and judgment entered affirming the action of the Collector.

We believe the Government's construction is correct because as a matter of law the statutes present a continuing, unbroken plan under which it becomes unnecessary for the Secretary of the Treasury to repeat a finding of commercial strength made for a particular dye or color under the act of 1922 in order to bind the same dye or color to pay specific duty upon more than its actual weight which is imported subsequent to the passage of the Tariff Act of 1930.

Judgment will, therefore, issue in favor of the Government denying the claim for refund of duty on weights in excess of the actual weights of the involved merchandise and overruling the protest.

(T. D. 47711)

Rock candy-Medicinal preparation-Confectionery

SCHARF BROS. Co., INC. v. UNITED STATES

Rock candy held to be properly dutiable as a medicinal preparation under paragraph 5 of the Tariff Act of 1922 or 1930, rather than as confectionery as classified by the collector, upon a finding that the evidence shows the chief use of the same to be as a medicine.

United States Customs Court, Third Division

Protests 388052-G, etc., against the decision of the collector of customs at the port of New York [Judgment for plaintiff.]

(Decided May 23, 1935)

Barnes, Richardson & Halstead (Joseph Schwartz of counsel) for the plaintiff. Joseph R. Jackson, Assistant Attorney General (William Whynman, special attorney), for the United States.

Before CLINE, EVANS, and KEEFE, Judges

EVANS, Judge: This is an action against the United States in which the plaintiff seeks to recover money paid as customs duties on im

portations of rock candy. Two protests are involved. Protest 388052-G arose under the Tariff Act of 1922 and the collector assessed duty on the merchandise at 40 per centum ad valorem under paragraph 505 of that act. Protest 658774-G arose under the act of 1930 and the rock candy there in question was assessed under paragraph 506 of that act. The material provisions of the two acts are identical and are in the following language:

* *

Sugar candy and all confectionery not specially provided for, Plaintiff claims that this rock candy is dutiable at 25 per centum ad valorem under paragraph 5 of each act as a medicinal preparation, or at the appropriate rate under paragraph 501 or at 20 per centum ad valorem under paragraph 1459 of the act of 1922 or paragraph 1558 of the act of 1930, as an unenumerated inanufactured article. The claim relied on is that under paragraph 5 as a medicinal preparation. That paragraph is in the same language in each act and is as follows:

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.

Rock candy is not provided for eo nomine in either paragraph 5 or 505 or 506. Each of the competing provisions is merely descriptive of a class of articles. We think there is no question but that rock candy is a preparation.

The Standard Dictionary defines it as, "Sugar candied in hard clear crystals."

The same authority defines the verb "candy" as follows: "II. 2. To become hardened by crystallization."

In order to determine whether a preparation is within the purview of the provision for "medicinal preparations", not specially provided for, in paragraph 5, the test of use must be applied. United States v. Hillier's Son Co., 14 Ct. Cust. Appls. 216, T. D. 41706. It has been held that the same test, that of chief use, should be applied to the provision as Congress has required shall be applied to the drug paragraph by the provisions of paragraph 34. United States v. Wm. Cooper & Nephews, Inc., 22 C. C. P. A. 31, T. D. 47038.

Plaintiff produced five witnesses, including a chemical analyst who had made an analysis of the rock candy in suit, which was offered and received in evidence. This analysis shows that it contains "cane sugar (sucrose) 99.86 percent." These witnesses included a pharmacist who was the owner of a retail pharmacy, the treasurer of the importing company, who testified that his firm has been importing and selling rock candy for about 11 years, that he handles all orders that come "within the house" and also does some selling by telephone. The testimony of this witness that rock candy is used principally as

a home remedy for colds was objected to by the Government on the ground that such testimony would have to be given by physicians and medical men or druggists. Counsel for the plaintiff cited the case of Kubie & Co. v. United States, 12 Ct. Cust. Appls. 468, T. D. 40668, as authority for the proposition that dealers in a commodity were qualified to testify as to the use of a commodity which they had been handling in a commercial way for many years. It is conceivable that in a case of an article claimed to be a medicinal preparation the rule might not apply. However, it is not necessary to decide that point in this case, because the plaintiff produced three other witnesses, two practicing physicians and one a pharmacist, who testified as to the chief use of the commodity.

From the testimony produced by the plaintiff it appears that rock candy is used as a demulcent and is recommended for that use by the physicians who testified that it soothes the mucous membranes and lessens irritations, and also increases the flow of saliva.

Two of the witnesses produced by the plaintiff were practicing physicians. One testified that rock candy is used

as a demulcent, which is a substance that soothes mucous membranes and lessens irritations such as are present in any sort of chronic conditions; for burns, inflammatory swellings of an irritative nature, and to increase the saliva. This witness states further that it has a curative or therapeutic value in that it soothes mucous membranes and lessens irritations and that he had recommended its use to patients for those purposes. The other physician who testified states that it is used as a demulcent and as an expectorant, and also in acute and chronic throat infections and in irritations of the throat caused by smoking too frequently or in other causes of cough. He also said that it has a therapeutic value

as a demulcent and expectorant, generally in local throat conditions or sometimes indirectly in nose conditions where the discharge from the nasal infection comes down the back of the throat and also irritates the throat.

The Government produced one witness, a physician who testified that she had used rock candy as a child; that none of the books she ever studied or had occasion to refer to in research work referred to rock candy as medicine or a medicinal preparation; that it reacts as a demulcent when taken into the mouth. This witness on cross examination stated that in her opinion an article can be considered to be therapeutic only if it cures an ailment, and that if it soothes or relieves an ailment she would not regard it as therapeutic but merely an "adjutant."

The Government at the close of this witness's testimony asked for and was granted a continuance for the purpose of producing further evidence but no additional evidence was produced.

From the record as thus made the weight of the evidence preponderates in favor of plaintiff's contention that the chief use of rock candy is as a curative or therapeutic agency rather than as confectionery as classified by the collector.

We therefore sustain the claim of the plaintiff that the rock candy in suit is properly dutiable under paragraph 5 of the Tariff Act of 1922 or 1930, as a medicinal preparation.

Judgment will be rendered accordingly. It is so ordered.

(T. D. 47712)

Alpine feeding oatmeal

J. A. FORREST v. UNITED STATES

Alpine feeding oatmeal composed of the aspiration from the manufacture of feed rolled oats, pinhead oatmeal, whole oat groats, and ground oat groats, together with 10 per centum of reground oat feed—ground-up hulls from white oats-is more specifically provided for as "byproduct feeds obtained in milling * * cereals" at 10 per centum ad valorem under paragraph 730, Tariff Act of 1930, than as unenumerated unmanufactured articles at 20 per centum under paragraph 1558 of said act.

*

United States Customs Court, Third Division

Protest 685116-G against the decision of the collector of customs at the port of Buffalo

[Judgment for plaintiff.]

(Decided May 23, 1935)

Barnes, Richardson & Halstead (Joseph Schwartz of counsel) for the plaintiff. Joseph R. Jackson, Assistant Attorney General (Daniel I. Auster, special attorney), for the United States.

Before CLINE, EVANS, and KEEFE, Judges; EVANS, J., dissenting

KEEFE, Judge: This is an action against the United States brought, after due protest, by the importer to recover duties assessed and levied by the collector of customs at the port of Buffalo, under the Tariff Act of 1930, upon an article invoiced as Alpine feeding oatmeal, which the collector held was a nonenumerated manufactured article and dutiable at 20 per centum ad valorem under paragraph 1558, and which the plaintiff claims is dutiable at only 10 per centum ad valorem under paragraph 730, 731, 1555, or 1558, or free of duty under paragraph 1722.

The claim principally relied upon by the plaintiff is that the commodity herein is dutiable as

byproduct feeds obtained in milling wheat or other cereals, 10 per centum ad valorem: