McLaughlin & Freeman v. United States

Keefe, Judge: The merchandise in question, invoiced as peanut-acid oil, was assessed for duty by the collector as a nonenumerated manufactured article at 20 per centum ad valorem under paragraph — 187 — 1558 of the Tariff Act of 1930. The plaintiff claims that the material is a waste and as such properly dutiable at 10 per centum ad valorem under paragraph 1555. By way of amendment of the protest, it is further claimed that the material is a raw or unmanufactured article and dutiable at 10 per centum ad valorem under paragraph 1558. At the trial counsel for the plaintiff introduced in evidence as exhibit 1 a deposition of the manager of the factory producing the imported material. Answering direct interrogatory No. 21, describing the production of the material, the affiant stated: A. Crude peanut oil is neutralized by adding a basic solution in order to produce in this way an edible oil from crude oil. How this neutralized oil is further worked has no bearing on this suit. The remaining fatty acids, bound to a part lye and neutral oil, settle on the bottom of the neutralizing tank. By adding sulfuric acid, the lye is neutralized and in this way a useful fatty acid (acid oil) remains. Answering direct interrogatory No. 22, where it was asked whether or not the process used was the separation of the free fatty acids which occur naturally in the peanut oil used in the production of the peanut acid oil from the other constituents in the peanut oil, the affiant answered: A. It is the separation of the free fatty acids which are present in the oil. And in answer to direct interrogatory No. 23 as to whether the peanut acid oil was a sought or unsought product the affiant answered: A. The fatty acids which are released during the refining are a pure waste product and therefore unsought. Dr. Harvey A. Seil,- an analytical, consulting, and research chemist, also testified on behalf of the plaintiff that he had experience in working with vegetable oils, in eluding peanut oil; that the common process in refining vegetable oils is to separate the fatty acids in the crude oil by means of neutralization with a basic solution; that the fatty acids are treated with sulphuric acid and thus separated from other impurities; that a crude peanut oil containing 5 per centum of free' fatty acids is inedible because of its obnoxious taste and the effect it has upon the throat; that free fatty acids are an undesirable constituent of an edible peanut oil, and are not susceptible of use in the edible oil industry; that free fatty acids are entirely different chemically and physically from edible peanut oil and are an unsought byproduct in the refining of peanut oil; and that the fatty acids as imported are the same fatty acids that were present in the original oil, although containing some of the color of the original oil, any resin that might have been present therein, and also any other acidic constituent thereof. As to — 188 — the character of the fatty acids removed from the crude peanut oil, the witness testified as follows: Q. Do the imported fatty acids have a name any different than they had as they occurred naturally? A. No, they are the same acids. Q. Do they have any different character than they had as they occurred naturally? A. No, except as I explained before, they may have some impurities from the oil that is contained in them. Q. Do the free fatty acids as imported have any different use than the fatty acids which occur naturally, other than that perhaps they have been made available for use? A. No, they have not. (Record page 13.) When asked if he agreed with the answer to direct interrogatory ]No. 21, the witness answered: A. Yes, after the separation, of course, of the soap formed by the addition of the basic substance. The mere addition of the basic substance without separation wouldn’t make an edible oil. X Q. Then is it that you disagree with that first sentence? A. Will you read that again, to be sure? X Q. [Reading:] Crude peanut oil is neutralized by adding a basic solution in order to produce in this way an edible oil from crude oil. ******* A. That would not make an edible oil as far as you have gone. X Q. Then you disagree with that first sentence of that answer? ******* A. The mere addition of a basic substance to a fatty oil containing free fatty acid would not render it an edible oil. ******* X.Q. I will read the rest of the answer: “How this neutralized oil is further worked has no bearing on this suit.” Now do you know whether that is a correct statement? A. I don’t know. X Q. [Quoting further:] The remaining fatty acids, bound to a part lye and neutral oil, settle on the bottom of the neutralizing tank. A. That is true. ******* X Q. [Reading:] By adding sulphuric acid, the lye is neutralized and in this way a useful fatty acid (acid oil) remains. A. It is perfectly obvious that they must have separated it. X Q. In other words, there would have to be a separation? A. There would have to be a separation of the oil from the soap solution, because otherwise when you put your sulphuric acid in you would come back to exactly where you started. Your fatty acid would go back into your original refined oil. X Q. [Reading question and answer to direct interrogatory No. 22:] * * * Do you agree with that statement? A. Yes, but that also shows, sir, that they must have separated the aqueous solution from the oil solution; otherwise there wouldn’t have been a separation. (Record pp. 14/16.) — 189 — Dr. McSorley, chief chemist at the United States customs laboratory, testified on behalf of the Government. He described samples which were illustrative of the production of peanut acid oil in its different stages from crude peanut oil. A small bottle of crude peanut oil was admitted in evidence as exhibit 2. It consists of a yellowish liquid having a small portion of whitish sediment at the bottom of the bottle. After the crude peanut oil is treated with an alkali, a sample thereof being admitted in evidence as exhibit 3, the oil is heavier in texture than the oil in exhibit 2 and the color is much darker. At the bottom of the bottle there is considerable whitish sediment, the bottle containing two-thirds oil and one-third sediment. The top, or oil portion, was described by the witness as peanut oil deprived of its free fatty acids and consequently considered to be a refined oil. The sediment, or bottom portion, according to the witness, was a water solution of alkali salts of the fatty acids originally in the crude peanut oil, and known as “foots” or soap stock. A sample of the peanut oil foots or soap stock, not acidulated, was admitted in evidence as exhibit 4. It consists of a mass of yellowish material in which there is a small quantity of liquid the consistency of water. The witness testified that if the material in exhibit 4 were treated with sulphuric acid the fatty acids will rise to the top, and a water solution of sodium sulphate, sodium chloride, salts, or other impurities will remain at the bottom, and that the top portion consists of peanut acid oil and the bottom portion consists of impurities to be discarded. Exhibit 5 was admitted in evidence as illustrative of the peanut acid oil and impurities after such material, as represented by exhibit 4, had been treated with sulphuric acid. There are two distinct layers of material such as exist when oil is placed in a bottle with water. At the bottom of the top layer, a yellowish oily liquid, there is a slight quantity of whitish sediment. Underneath this oily layer is a perfectly clear liquid which contains no sediment of any kind. The top layer is the peanut acid oil such as is here imported. After reading direct interrogatory No. 21, the Government's witness testified that in his opinion the affiant omitted one or two essential steps in describing the process of manufacture, and that he differed with the affiant in that the fatty acids, liberated from the neutralization process, are not exactly the same fatty acids which occurred in the original peanut oil; that in treating the crude peanut oil with alkali, such as sodium hydroxide or sodium hydrate, one atom of hydrogen in the free fatty acids in the crude peanut oil is neutralized with the sodium from the alkali; that when the sludge or foots are subsequently neutralized and slightly acidified with sulphuric acid, one hydrogen atom from that sulphuric acid goes into the fatty acids, — 190 — substituting for the sodium that was combined with the original sodium salts of fatty acids extracted from the crude peanut oil;, and that therefore the final peanut acid oil contains one atom of hydrogen which was not in the original acids of the crude peanut oil. The witness admitted that the free fatty acids resulting from the separation process of the refined peanut oil were not any different from the free fatty acids found in the crude peanut off,, except from the difference in one hydrogen atom per molecule of fatty acid. The witness was of the opinion that such hydrogen atom was derived from the sulphuric acid. In other words, the only difference between the free fatty acids as contained in exhibit 5 and the free fatty acids in exhibit 2 is one hydrogen atom per molecule of fatty acids. The witness was of the opinion that the hydrogen which makes the fatty acids an acid comes from the sulphuric acid. Although admitting that there were hydrogen ions present in the solution before the addition of the sulphuric acid, the witness believed that such, hydrogen atoms would not combine with the acid radical. As to the identity of the material, the witness testified as follows: X Q. How can you tell which, hydrogen ion is going to combine with which fatty acid radical? A. Well, it is difficult to tell. X Q. Have you any way of labeling them so that you can tell which ones are going to hook up? * * * * * * * A. I have no way of labeling them, but from my study and knowledge of chemistry, the hydrogen that is in the final fatty acids in the peanut acid oil is the hydrogen from sulphuric acid; and I know that because if you allow this material to stand this sludge in the bottom with, as you say, hydrogen atoms present— hydrogen ions present — that won’t automatically change to peanut acid oil; there would be no reaction takes place at all. Whereas, when you add hydrogen from sulphuric acid you get that reaction immediately, and in my estimation and judgment it is the hydrogen from that sulphuric acid that combines with the acid radical to form the arachidie acid, oleic acid, linolic acid, and other acids which are in peanut acid oil. X Q. Actually is there any way that you can identify the hydrogen ions that combined with the acid radicals? ******* A. No, there is no way you can identify them. X Q. Does it make any difference which hydrogen atom you have combined with which acid radical in the peanut acid oil, as shown in Illustrative Exhibit 5? Is it not just exactly the same product, regardless of what hydrogen atoms are in it as acid ions? A. I don’t say it is exactly the same product. I say it is an equivalent product. It is a product which is equivalent to all intents and purposes, but it isn’t the same product, because in saponifying the fatty acids to combine them with soda you have substituted one hydrogen with a sodium atom. In decomposing the sludge, which is a result of that treatment, with alkali — decomposing the sludge you have picked up a hydrogen atom from the sulphuric acid which was not present in the original peanut oil. Theoretically, I think that is theoretical and I think it ip sound, but as far as the final product is concerned it doesn’t make any difference. X Q. As a matter of practical procedure the peanut acid oil shown in Illustrative — 191 — Exhibit 5 is identical with the peanut oil acids that were present in Illustrative, Exhibit 2, are they not? A. I would not say so, no. X Q. As a matter of practical talk now, Dr. McSorley, would there be any way chemically or otherwise of differentiating between them? A. We have no way of differentiating between them, no. (Record pp. 46-48.) The claim that the merchandise at bar is classifiable as a waste was not stressed at the trial nor in brief of counsel. Inasmuch, however, as the sludge or foots remaining after the removal of the refined oil is the only waste product, a further treatment or fabrication thereof would, of course, be sufficient to remove it from,a classification as waste. The only question at issue is whether or not the peanut acid oil here imported is a naturally occurring substance in peanut oil which has been, through the processes employed, separated from its native condition and brought to a state suitable for shipment without affecting its original character. The manager of the exporter and Dr. Seil, plaintiff’s witness testified positively that the peanut acid oil imported was the same peanut acid oil found in crude peanut oil. Government witness admitted that the free fatty acids as imported were not any different from the free fatty acids found in crude peanut off, but because of his theory that the hydrogen ions necessary to change the salts back into acids were drawn from sulphuric acid rather than from other sources in the residual material, the free fatty acids imported were not the free fatty acids in the crude peanut oil. Although the Government witness was unable to substantiate his theory that the hydrogen ions were taken from the sulphuric acid, we are of the opinion that had it been established that the hydrogen ions in the peanut acid oil were from outside sources, the peanut acid oil could nevertheless be identified as the same free fatty acids appearing in crude peanut oil. Dr. Seil testified as to the affiant’s description of the processes used in producing the imported material that there must have been a separation of the edible oil from the residue after the addition of the alkali because, if there were not such separation, the addition of the sul-phuric acid would cause a return of the substance to the state of crude peanut oil. That crude peanut oil might not be exactly the same crude peanut oil respecting the identical ions of the different substances theretofore contained in the crude peanut off, but to all intents and purposes it would be the same substance. The alkali was added to the crude off for the purpose of extracting the acid oils from their native oily tissue. The acid was added to the residue to restore the acid oils to their original state. To all intents and purposes the same fatty acids are found in the crude peanut oil. Such restoration would compare with the transmission of one’s voice over the telephone. The sound we hear is the voice of the person telephoning, but actually the sound waves composing that voice have been broken down into electric im — 192 — pulses and tben rebuilt so that we hear the same voice. That is true also of all radio reception; the sound waves are so manipulated as to restore them to their original sounds. We are not impressed with the Government’s contention that the refining processes used to produce an edible peanut oil left a residue of alkali salts and that any further chemical reactions taldng place merely produced a new article of commerce differing from the salts, and that such new article, so produced, is dutiable as a nonenumerated manufactured article. The soap stock or foots may have been imported as a waste material, a residuum in the production of refined peanut oil, but the further treatment of the soap stock was not for the purpose of manufacturing such soap stock into a valuable product. Rather it was a continuing process of extraction therefrom of the fatty acids contained in the crude peanut oil. When such fatty acids have been removed from their native state they are still raw or unmanu-factured articles and are not to be considered manufactured. For the reasons stated judgment will be entered in favor of the plaintiff directing the collector to reliquidate the entry, and make refund of duty according to law.