Citations
- 219 F. Supp. 239
Full opinion text
WILSON, Judge.
The merchandise in the case at bar consists of a certain substance known as polyvinyl pyrrolidone, commonly referred to as PVP. It was classified under paragraph 2 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T.D. 52739, as a nitrogenous com’ pound of vinyl alcohol and assessed with duty at the rate of 3 cents per pound, plus 15 per centum ad valorem. The plaintiff claims that the merchandise is properly classifiable under paragraph 5 of the tariff act, as modified by T.D. 52739, supra, as a medicinal preparation at 12½ per centum ad valorem. Specifically, plaintiff contends that the merchandise is properly classifiable as a medicinal preparation by reason of a long-established practice of classifying merchandise of the character here imported as a medicinal preparation, and, further, that the merchandise at bar is, in fact, a medicinal preparation.
The pertinent statutes and regulations herein involved are as follows:
Paragraph 2, Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T.D. 52739:
« -X- ■* * *
“allyl, alcohol, crotonyl alcohol, vinyl alcohol, * * *
*****
ethers, esters, salts and nitrogenous compounds of any of the foregoing, whether polymerized or unpolymerized; * *
*****
all the foregoing not specially provided for * * *...........30 per lb. and 15%' ad val.” Paragraph 5, Tariff Act of 1930, as modified by T.D. 52739, supra:
* * * * *
“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 * * *..............12%% ad val.”
Section 315(d) of the Tariff Act of 1930, as modified by the Customs Simplification Act of 1953:
“(d) No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the weekly Treasury Decisions of notice of such ruling; but this provision shall not apply with respect to the imposition of antidumping duties.”
Section 16.10(a), Customs Regulations, 1954:
“16.10 Change in classification or value; higher or lower rate; effective date. — (a) If there is an established and uniform practice at the various ports, a change in classification resulting in a higher rate of duty, except as the result of a court decision, shall be made only upon the Bureau’s instructions and shall be applicable only to merchandise entered for consumption after the expiration of 90 days after the date of the publication of the Bureau’s instructions in the Treasury Decisions. In the case of merchandise entered for warehouse, such change shall apply to goods withdrawn for consumption after the expiration of such 90-day period, provided the warehouse entry is unliquidated or can be reliquidated within 60 days after the date of liquidation.”
Plaintiff introduced in evidence a number of exhibits relative to its claim that there was a long-established and uniform practice of classifying merchandise, such as that here imported, under paragraph 5 of the tariff act as a “medicinal preparation” (plaintiff’s collective exhibits 1 and 2, and plaintiff’s exhibits 3, 4, and 5). Reference to the exhibits in question will be made as deemed pertinent to a determination of the issue herein.
Plaintiff’s first witness was Mr. Jack D. Haim, a registered pharmacist and vice president of Biddle Sawyer Corp., importer of pharmaceuticals, industrial chemicals, and essential oils. He testified that the merchandise under consideration was purchased from the manufacturer as pharmaceutical grade PVP suitable for tabletting and sold exclusively to Abbott Laboratories, Chicago, Ill., as “polyvinyl pyrrolidone, Kollidone 25, tabletting grade” (R. 14-17). The witness stated that he first started importing this merchandise in August or September 1956. It appears that, prior to importation, at that time, the importer herein made inquiry of certain officials at the customhouse in New York relative to the proper rate of duty applicable to polyvinyl pyrrolidone, pharmaceutical grade. Mr. Haim stated that he was informed, at that time, that such product would be classifiable as “a pharmaceutical, medicinal compound” (R. 19-22). When these initial shipments arrived, certain notices (plaintiff’s collective exhibit 1) were received from the appraiser advising the plaintiff that the merchandise there involved, which was entered under paragraph 5 at the rate of 11 or 11% per centum ad valorem, would be advanced to 12% per centum ad valorem under paragraph 5, the rate of duty covering medicinal preparations. Subsequently, it appears that, on or about October or November 1957, the importer was notified by the appraiser that certain polyvinyl pyrrolidone, which had been entered under paragraph 5 of the tariff act at the rate of 11% per centum or 12% per centum ad valorem, would be advanced to a rate of 3 cents per pound and 15 per centum ad valorem and would be classifiable under paragraph 2 of the act (plaintiff’s collective exhibit 2) (R. 32). A copy of a letter, dated January 9, 1958, addressed to customs officials at New York by the importer herein inquiring as to the rate of duty on polyvinyl pyrrolidone “Technical Grade for industrial use and pharmaceutical grade” (plaintiff’s exhibit 3), elicited the following reply:
“ * * * you are advised that the pharmaceutical grade is dutiable at 12%% ad valorem under paragraph 5, and the technical grade is dutiable at S