United States v. Fruit Products Corp.

Smith, Judge, delivered the opinion of the court: Cherries in brine, pitted and sulphured, were classified by the collector of customs at the port of New York as cherries “prepared or preserved in any manner” and assessed for duty at 40 per cent ad valorem under that part of paragraph 737 of the act of 1922 which in part reads as follows: Par. 737. * * . * Cherries prepared or preserved in any manner, 40 per cent ad valorem. [338] The importer protested that the importation was cherries sulphured or in brine and that the merchandise was therefore dutiable at 2 cents per pound under that part of paragraph 737, which reads asrfollows: Cherries, in their natural state, sulphured, or in brine, 2 cents per pound. The Board of General Appraisers sustained the importer’s protest and the Government appealed. The Government contends, first, that as pitted cherries are not cherries in their natural state they are not covered by the language used in the opening sentence of paragraph 737; second, that pitting is a preparing of cherries and that consequently they are dutiable as cherries "prepared in any manner” under the closing provision of the paragraph. We can not agree with either contention. The first provision of paragraph 737 provides for cherries in their natural state, cherries sulphured, and cherries in brine and not for cherries sulphured or cherries in brine which are in their natural state. Cherries whether pitted or not are still cherries and if sulphured or packed in brine would come within the designation cherries sulphured or cherries in brine. Cherries sulphured and cherries in brine are prepared and preserved in a special particular way and are therefore a special particular limited class of prepared and preserved cherries. The designation cherries sulphured or in brine is consequently less comprehensive and more specific than the designation cherries prepared or preserved in any manner, which designation is broad enough to include all prepared or preserved cherries. As a tariff provision which provides for all kinds of prepared or preserved cherries must give way to a provision which covers only that class of prepared or preserved cherries which are sulphured or packed in brine, the importation should have been assessed for duty at 2 cents per pound and not at 40 per cent, as found by the collector. In Causse Mfg. Co. v. United States (151 Fed. 4; T. D. 27751), the question of relative specificity was not involved, and that case is therefore not in point as to the issue raised by this appeal. The judgment of the Board of General Appraisers is affirmed.