Bercut-Vandervoort & Co. v. United States, C.D. 2344.
| Decision Date | 04 June 1962 |
| Docket Number | C.D. 2344. |
| Citation | 48 Cust. Ct. 247 |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
| Parties | BERCUT-VANDERVOORT & CO. <I>v.</I> UNITED STATES. |
Lawrence & Tuttle (Edward N. Glad and Barnes, Richardson and Colburn of counsel) for the plaintiff.
William H. Orrick, Jr., Assistant Attorney General (Richard E. FitzGibbon, trial attorney), for the defendant.
Before JOHNSON, DONLON, and RICHARDSON, Judges
The merchandise, which is the subject of two protests that were consolidated for trial, was described on the invoices covered by the consumption and warehouse entries as "Aperitif Wine Byrrh 18°." The question raised in this proceeding is whether the merchandise, an alcoholic beverage for human consumption, is classifiable and dutiable as a still wine, or whether it is classifiable and dutiable as a vermouth.
The merchandise was exported from Thuir, in southeastern France, on October 8, 1957, and March 28, 1958, and entered at the port of San Francisco, Calif., on November 13, 1957, and May 1, 1958, respectively. Upon the appraiser's advisory classifications, the merchandise was classified by the collector as still grape wine and assessed with duty at the rate of $1.25 per gallon under paragraph 804 of the Tariff Act of 1930. Other assessments of duty on the glass bottles and internal revenue taxes were also made, but are not in dispute between the parties. Upon liquidation of the entries, timely protests were filed by the importer-plaintiff against the collector's classification and duty assessment on the involved entries. As claimed in the protests, it is plaintiff's contention that the merchandise is a vermouth and that it is properly dutiable at the rate of $0.28 per gallon under paragraph 804, as modified by T.D. 54108.
Paragraph 804 of the Tariff Act of 1930 reads in part:
Still wines, including ginger wine or ginger cordial, vermuth, and rice wine or sake, and similar beverages not specially provided for, $1.25 per gallon * * *.
Insofar as is here material, T.D. 54108 reads:
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Tariff Act | | Rates of Duty
of 1930, | Description of Products |-----------------------------
paragraph | | A | B
------------|---------------------------------------------|---------|-------------------
804 | Vermuth: | |
| In containers holding each 1 gallon or | * * * | 28¢ per gal
| less. | |
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The case was submitted upon the official papers and the testimony of one witness who was called by the plaintiff. This witness, a Mr. Henry J. Vandervoort, is the vice president of the plaintiff-importer firm and has been associated with the firm since its inception in 1947. The business of the plaintiff is the importing and wholesale selling of wines, vermouths, spirits, and beers. Mr. Vandervoort's duties in the firm consist of general administration and sales management in the United States and the purchasing of the imported merchandise in Europe, making on the average of one trip a year to Europe. From his experiences in the business, Mr. Vandervoort gave testimony concerning the preparation and uses of both the involved merchandise— "Aperitif Wine Byrrh 18°"— and of vermouth and produced samples of both types of merchandise handled by his firm, which were offered and received in evidence (plaintiff's exhibit 1 and plaintiff's illustrative exhibit 2).
Concerning the preparation of the involved merchandise, Mr. Vandervoort testified (R. 8-9):
As far as I was able to determine by visiting the plant, the wines are brought in from the surrounding region, which is a great wine-producing area, southeastern France. The wine is brought into this particular plant, once it is already a wine, usually made from 11½ to 12½ by volume. To that is added a sufficient alcohol to bring up the product to about 18 percent, and thereafter it is macerated over herbs.
With respect to the use to which this beverage is put in the United States, the witness testified (R. 9):
This is consumed as vermouth, as an aperitif; in other words, you take a glass and you put a piece of ice in it, and you pour this over it and drink it as it is, or else you add a bit of lemon peel over it.
According to Mr. Vandervoort, the preparation of vermouth and the uses to which vermouth is put are the same as for the involved merchandise, adding the fact that to both types of beverages may be added a variety of spirits, such as gin or whisky.
As regards the uses to which still wines are put, the witness testified that such beverages were consumed during mealtime to the accompaniment of food. And he also stated that neither the involved merchandise nor vermouth were consumed with meals.
Plaintiff argues that Aperitif Wine Byrrh is a trade name of a particular sweet vermouth of an Italian type made in France and that it is consumed as a beverage in the same manner as are all other vermouths. Defendant, on the other hand, maintains that a similarity of uses to which both the involved merchandise and vermouth may be put, does not establish that the involved merchandise is a vermouth.
In our opinion, the evidence adduced by the plaintiff does not rebut the presumption of correctness which attaches to the collector's classification of the involved merchandise. The most that we can conclude from the uncontroverted evidence is that "Aperitif Wine Byrrh 18°" is made and consumed in a manner similar to a vermouth. Nothing more than this can be inferred from the holding in Bustanoby Brothers v. United States, 5 Treas. Dec. 797, T.D.24052, cited and apparently relied upon by the plaintiff. In that case, the issue before the general appraiser was whether a product, imported from France and known as "byrrh wine," was dutiable at the rate for still...
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