On the trial of the issue involved one witness was called by the plaintiff who was shown to be the chief chemist for the importer. Following the testimony of this witness the Government attorney called Edward R. Miller, a chemist in the laboratory of the office of the United States appraiser at the port of New York, to prove the results of the analysis of what was claimed to be a sample of the involved merchandise, but, on objection of plaintiff's counsel, he was not permitted to testify for the reason that, notwithstanding a number of employees in the appraiser's office were called for the purpose of identifying the sample analyzed by him as having been taken from the importation involved, all effort to so identify the sample failed. The case was finally submitted for decision on the testimony of the witness called by the plaintiff. The issue must turn upon the question of whether the process or processes to which the original bergamot was subjected to remove the terpenes (otherwise called impurities) resulted in the production of an essential or distilled oil. It is difficult to reconcile the testimony of the witness on the question of whether the bergamot from which the merchandise in issue was derived was subjected to distillation and whether the terpeneless bergamot before us was the outcome of such distillation. Whatever may be said of the process by which the so-called terpeneless bergamot was produced it is evident that the very removal of the terpenes fitted what remained for a use to which the bergamot was not adapted before such removal. It is not disputed that the use of the merchandise as imported was for a material in the manufacture of perfumery. As to the purpose of such use the witness testified: Q. Why is it used in perfumery?—A. It is used because it has a certain odor that can not be had by any other perfume material; and when you want to get that odor you have got to use it. Judge MCCLELLAND: What effect does it have, if any, on the other components? The WITNESS: Well, in a blend it gives a characteristic odor. The WITNESS: Yes; and it has an odor of its own, and if you want to have this odor in your perfumery you have to use that oil. Asked to say what he meant by "terpeneless," the witness answered: I mean of the same constituent. Some of the impurities that are in the natural oil have been removed from this oil so as to make it better smelling, and bring a superior odor. (Italics ours.) The terpenes, all of which were removed from this merchandise, were naturally present in the bergamot. 66458-31-VOL 60- -3 As to the process through which the terpenes are removed and the merchandise in issue is produced the witness testified: Q. But you arrive at your finished product by the process of distillation, do you not?--A. Yes. Q. Without the process of distillation you would have a different product. You would have bergamot oil-common, ordinary bergamot oil?-A. But you started from bergamot oil. Now you purify it. Q. You started with the begamot oil in the beginning?—A. Yes. Q. Then you distill it and you distill off the terpene, do you not?-A. Yes. Q. Then, by the process of distillation of a bergamot oil you obtain the terpeneless oil, do you not?-A. Yes. In the face of this explicit testimony the witness, when asked if the terpeneless oil, such as we have under consideration here, is the distilled essence of the bergamot, answered that he would not call it distilled, but purified by the removal of terpenes, and added that "the bergamot essence, properly, has not been distilled." Later, when asked pointedly if he had distilled it, he answered "No." The answers of the witness to questions as to the process of distillation to which the merchandise was subjected, and its effect in producing this so-called terpeneless bergamot, appear to be incapable of reconciliation, but nevertheless his testimony taken as a whole seems to justify the conclusion that this terpeneless bergamot, socalled, was produced through a process or processes of elimination as the result of distillation, and is therefore an entirely different article from what the bergamot was before distillation. Even if it be assumed that the sole purpose of the distillation was the elimination of impurities, the result is nevertheless a distilled oil. See definitions of the word "distill" in Webster's, Century, and Standard dictionaries. We find the merchandise to be a distilled oil subject to duty as assessed. The protest is overruled and the decision of the collector affirmed. Judgment will be entered accordingly. (T. D. 45003) Stencil paper-Paper with coated surface or surfaces DURATEX STENCIL Co. v. UNITED STATES Stencil paper, used exclusively for mimeograph purposes, and made by coating the surface or surfaces of yoshino tissue paper with a chemical solution composed of oleic acid, cellulose ester, and dye, is properly dutiable at the rate of 5 cents per pound and 15 per centum ad valorem under paragraph 1305 of the Tariff Act of 1922 as "papers with coated surface or surfaces, not specially provided for," rather than at the rate of 30 per centum ad valorem under paragraph 1309 of said act as "paper not specially provided for." United States Customs Court, Second Division Protest 384184-G against the decision of the collector of customs at the port of New York [Judgment for plaintiff.] (Decided June 24, 1931) Walden & Webster (Jacob L. Klingaman of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (Peter A. Abeles, special attorney), for the United States. Before FISCHER, TILSON, and KINCHELOE, Judges; KINCHELOE, J., not participating FISCHER, Presiding Judge: This suit was instituted to determine the tariff classification of certain stencil paper used exclusively in making mimeographs. Duty was levied thereon at the rate of 30 per centum ad valorem under paragraph 1309 of the act of 1922 as paper not specially provided for. While plaintiff invokes various provisions imposing lower rates as applicable to the merchandise, it seems principally to rely upon its claim alleged under paragraph 1305 of said act that the paper is therein most specifically provided for as "paper with coated surface or surfaces, not specially provided," at the rate of 5 cents per pound and 15 per centum ad valorem. The record discloses no serious conflict as to the essential details employed in producing this paper. As described by the witness Erskine a dealer in stencil paper who purposely spent one week observing its manufacture at the German mill which produced this importation a white, fibrous, and porous sheet of yoshino paper is drawn over a roller which revolves in a bath containing a solution which, according to the Government chemist who analyzed the present importation, is composed of oleic acid, cellulose ester, and dye. One witness likened the consistency of the solution to that of molasses, and another to that of thin cream. After its surface has been covered with the solution the paper is removed to a different temperature and hung up to dry. The treatment imparts to the paper a dark blue color and a smooth surface that is impervious to the passage of ink or grease. The condition of the paper before and after treatment is thus contrasted by the Government chemist: This exhibit C is very absorbent, whereas the new material, this stencil, has no absorbing qualities; it is a little bit stiffer than the starting paper; also that this starting paper allows grease to go through simultaneously and allows lithographic ink to go through instantaneously, whereas this stencil paper will not allow grease to go through it and lithographic ink to go through it, unless it is punctured. To make it ready for use in mimeographing, the stencil is backed by a manila sheet and inserted in an ordinary typewriter from which the ribbon has been removed. The impact of the type on the surface. of the stencil breaks or punctures, or, as expressed by Government witness Orr, "pushes to one side" at that point the surface material, leaving intact on the surface of the basic paper underneath the complete outline or impression of the particular letters typed. The matter so typed may then be reproduced in typewritten form on paper by removing the manila sheet and by pressing an inked roller over the surface of the stencil, thus permitting the ink to penetrate through the typed matter thereon to the sheet of paper underneath. Query Is the solution referred to a coating as contemplated by paragraph 1305? We think it is, because we know no other word which would more accurately describe it. It is an added surface which must be removed to permit the ink to penetrate through the typed impressions on the surface of the basic paper. If the ink does not penetrate through the typed portions of the stencil it is because the solution has not been removed, which would defeat the purpose intended. Clearly, then, it imparts to the yoshino paper an added surface in the form of a coating. But Government counsel insists that, inasmuch as the basic paper is porous, which permits the solution to penetrate through to the opposite surface, it must be deemed an impregnated or saturated paper as distinguished from a paper with coated surfaces. The decision relied on, in support of such contention, is that rendered in the case of Knauth, Nachod & Kuhne et al. v. United States, 4 Ct. Cust. Appls. 11, T. D. 33199. There the court passed upon an oilsaturated paper called windowphanie, which it held to be saturated but not coated. The opinion quoted these definitions: Murray's Dictionary: Coat. v. 2. To cover with a surface layer or coating (or with successive layers) of any substance, as paint, tar, tin foil, etc.; also predicated of the substance covering the surface. Standard Dictionary: Coat. v. t. 1. To cover or spread over with a surface layer, as of paint, tar, etc. 2. To cover with or as with a coat. Century Dictionary: Coat. n. 8. A thin layer of a substance covering a surface; a coating; as a coat of paint, pitch, or varnish; a coat of tin foil. Coat. v. t. 2. To overspread with a coating or layer of another substance; as, to coat something with wax or tin foil. Of the windowphanie paper before it, the court said: A consideration of these definitions and of the record leads the court to the conclusion that the paper now in question is not surface coated by the oil with which it is treated. The manufacture of the paper involves the complete saturation of the entire body and substance of the article in order to make it translucent. This condition of translucency is absolutely essential to the use for which the paper is designed. In the absence of the oil the paper would be opaque, and therefore unfitted for use as a covering for window panes. If at the completion of the process any part of the paper should remain untreated by the oil, such part would be an imperfection in the article requiring correction. It can not properly be said that the oil is a surface coating which only incidentally affects the body of the paper; to the contrary, the oil is not designed to be a surface coating at all, but is intended to effect a thorough and even saturation of the article throughout. If the two surfaces of the paper were covered with a film of oil leaving between them a layer of paper free from oil, the entire article would remain opaque, and the essential purpose of the treatment would be defeated. The method whereby the oil is applied to the paper bears some resemblance to the process of printing, because the paper is passed through a set of rollers. But the result reached is simply a saturation of the article such as might less efficiently be accomplished by immersing it in a bath of the same liquid. This fact marks the difference between the process just described and the mere painting of the exterior of an article. In the latter case the purpose would be to reach the surface of the article only, and if the paint found its way beneath the surface that result would be unintentional and would not be an essential part of the process. Manifestly the court did not predicate its conclusion solely upon the circumstance that the paper was saturated with the oil, but rather upon the fact that its surface was not coated nor intended to be coated. The single object there sought was the thorough and even saturation of the paper throughout and nothing more, and to insure that end the necessary means were employed to remove all excess oil. As pointed out by the court The operating parts of this machine consist of two rollers, the lower of which turns in a solution of linseed oil, and saturates the paper with the The upper roller tightly presses the paper upon the lower one and thus prevents an excess of oil remaining in it. * same. Were it the intention that the excess oil should remain to form a thin coating on the surface of the paper the court might have reached a different conclusion. But in the present case there seems to be no doubt whatever of the deliberate purpose to coat one surface of the paper and permit the solution to dry thereon. If in the operation the paper becomes more or less saturated, that result is unintentional and, as stated by the court, would not be an essential part of the process. On the contrary, if the paper was thoroughly and evenly saturated throughout, it may well be that the type in removing the solution might penetrate through the paper, leaving nothing but holes therein. Be that as it may, it was evidently the intention to produce a coated paper, the coating to be removed by the type, leaving the basic paper intact. Therefore, even though it be contended that the paper is saturated-which claim is not affirmatively proven by the record-it can not be denied that there still reniains on the surface sufficient solution to serve as an added coating to the surface of the basic paper. We can well conceive that a paper may be both saturated and coated. The appellate court also must have had such a paper in mind, because it pointed out in the Knauth case, supra, that "no varnish or other substance is applied to the article in order to give it an added surface or to serve solely as a polish to the original surface." That statement would hardly be true of the present paper, |