United States v. Wo On & Co. , 167 F. 314 ( 1909 )

COXE, Circuit Judge.

The subject of this controversy is “thick soy” imported from China. The collector assessed a duty of 40 per cent, ad valorem under paragraph 241 of the act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1649]) which provides for “sauces of all kinds, not specially provided for.” The importers protested, insisting that their merchandise is a nonenumerated manufactured article under section 6 of the act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1693]), and should pay a duty of 20 per cent, ad valorem. The question, then, is whether thick soy is a sauce or bears the statutory similitude to a sauce. Thin soy is made from the soy bean with other ingredients, 60 per cent, being water. Thick soy is made by adding molasses, treacle, or sugar, and perhaps licorice, and then boiling the mixture down. It contains but 20 per cent, of water. It is used by the Chinese as a coloring or flavoring matter in cooking meats, stews, gravies, and other dishes, and is an ingredient used in making Worcestershire or other sauces. It is brought here in casks.

This is a brief statement of the facts found by the board, which are fully established by the proof. Twice the board has reached the conclusion that thick soy is not a sauce and bears no substantial similitude thereto. An order was made permitting additional testimony to be taken in the Circuit Court, but none appears to have been taken. The Circuit Court concurred with the board upon the facts. We should hesitate long, in such circumstances, to disturb a conclusion reached after such careful and deliberate consideration. However, an independent'examination has convinced us that the decision is correct. The great preponderance of testimony is to the effect that the two principal and controlling uses of thick soy are as an ingredient of sauces and as a flavor or color for food while cooking. It is not placed upon the table to he added to or used with food. Of course the fact that it is an ingredient for sauces does not make it a sauce. H this were not so, vinegar, oil, and cream might be classified as sauces.

The contention that it is a sauce because it is used in cooking is equally unavailing. Butter, molasses, and wine are so used, but they are not sauces. Our attention has been called to some definitions of “sauce,’’ broad enough, perhaps, to cover the imported merchandise. But in the absence, of any commercial meaning we must assume that Congress used the term as it is popularly and generally used, viz., as a seasoning or dressing, usually placed on the table to be added to prepared food. A sauce may be used in cooking and still be a sauce, but that which is used solely in cookitig is never a sauce in the popular acceptation of that term. It is incapable of independent use, its individuality is lost in the process of cooking. It may be combined with other ingredients to make a sauce, but alone it is not one.

Our conclusion is that thick soy is not a sauce or similar to a sauce, in material, quality, texture, or use.

The decision is affirmed.