(C. D. 1153)

#### Bing Kee Co. *v.*United States

United States Customs Court, Third Division

(Decided January 27, 1949)

*Lawrence, Tuttle & Harper (Walter I. Carpeneti*of counsel) for the plaintiff.

*David N. Edelstein,*Assistant Attorney General *(Joseph E. Weil*and *William J. Vitale,*special attorneys), for the defendant.

Before Cline, Ekwall, and Johnson, Judges

CliNE, Judge:

This is a protest arising at the port of San Francisco against the collector’s assessment of duty on water chestnuts at the rate of 50 per centum ad valorem under paragraph 774 of the Tariff Act of 1930 as vegetables in their natural state. It is claimed in the protest that the merchandise is properly dutiable at 35 per centum ad valorem under paragraph 775 as vegetables, prepared, or under paragraph 752 as fruits. The claims as to other items of merchandise have been abandoned. Apparently the claim that the water chestnuts are dutiable under paragraph 775 has also been abandoned since it was not mentioned at the trial nor in the briefs.

The pertinent provisions of the tariff act are therefore the following;

> Par. 774. Vegetables in their natural state: * * * all other, not specially provided for, 50 per centum ad valorem: * * *.

> Par. 752. Fruits in their natural state, * * * or otherwise prepared or preserved, and not specially provided for, * * * 35 per centum ad valorem; * * *.

At the trial the record in the case of *Bing Kee & Co.*v. *United States,*protest No. 82274-K, 16 Cust. Ct. 176, C. D. 1006, was incorporated herein.

Plaintiff called Bruce Calvin Jang, an importer of Chinese extraction employed by Wo Kee *&*Co., who testified that he has been familiar with water chestnuts since he was a child; that he has used them and seen them used by Chinese; that Wo Kee & Co. has been importing *27them for over 20 years and selling them to Chinese grocery stores all over this country. Mr. Jang stated that he has used water chestnuts in cooking and eaten them raw; that they are generally used with bamboo shoots and celery cooked with meat; that when eaten raw, the skin is peeled off and they are eaten like apples; that they have a sweet taste; that they are sometimes cut into pieces, coated with sugar, and eaten as fruit candy, such as glazed fruits, candied pineapple, candied apple, and candied orange; that such candy looks like Chinese coconut candy but is a little thicker; that in his own family water chestnuts are used mostly for cooking; and that his family also uses orange peel, pineapple peel, and lemon peel in cooking pork or beef.

On cross-examination, the witness stated that while water chestnuts are sometimes peeled and eaten raw, they are more frequently used in cooking; that they have a sweet flavor and are crispy like an apple; that they look like potatoes; that they are.used in the preparation of chow mein; and that chow mein contains noodles, bean sprouts, celery, pepper, and occasionally pineapple.

S. L. Lam, secretary of the Chinese Chamber of Commerce in San Francisco, testified that he was of Chinese extraction; that he has been familiar with water chestnuts since childhood; that he has prepared and' eaten them himself and also seen them prepared and eaten by others; that they are used mainly as a flavoring agent, being chopped or sliced into small pieces and mixed with other foods in cooking, particularly in making chop suey dishes; that some of the ingredients of chop suey are meats, vegetables, water chestnuts, and at times pineapples; that water chestnuts are also peeled and eaten like apples or oranges; that they are made into sugar-coated candies; that lotus nut candy is prepared in the same way; that water chestnuts are not used as a side dish; that fruits and nuts such as almonds, walnuts, and pineapples are used in Chinese cooking; that water chestnuts are used in his home as a flavoring agent to cook with beef, pork, or chicken; that water chestnuts are sometimes used in chow mein along with meats and vegetables, such as garlic, onions, bean sprouts, and celery.

On cross-examination the witness stated that water chestnuts are also used in soups, such as beef soup, pork soup, and melon soup; that generally speaking water chestnuts are cooked and eaten with other foods; that occasionally they are coated with sugar and eaten as candy, or fresh ones are eaten like apples. • •

In the incorporated case, Henry Luck testified that water chestnuts are sometimes peeled and eaten raw but are more frequently used in cooking for flavoring; that they are cooked with meat or chicken and are used in soups; that they have a sweet flavor and are crispy like an apple; that they grow under water and are probably roots; that *28water chestnuts are used in chow mein; that chow mein contains noodles, bean sprouts, and meat; that fruits are not used in chow mein.

The issue in fhe instant case, as in the incorporated case, is whether the water chestnut is a fruit or a vegetable. In the incorporated case we held that it was a vegetable on the ground that it was used in soup or cooked with meat; that it was occasionally peeled and eaten raw, but that it was not generally used as dessert. We pointed out that water chestnuts had previously been held to be dutiable as vegetables rather than as vegetable substances or as chestnuts. *S. Y. Tank & Co.*v. *United States,*11 Treas. Dec. 82, T. D. 27019 (G. A. 6266); *Yee Shing & Co.*v. *United States,*72 Treas. Dec. 41, T. D. 49060; *Quong Lee & Co.*v. *United States,*10 Cust. Ct. 23, C. D. 716. In those cases it was found that water chestnuts came from a plant scientifically know as *Eleocharis tuberosa,*which is an edible tuber. A tuber is generally considered a vegetable and not a fruit. Funk *&*Wagnalls New Standard Dictionary.

Whether or not a given article is a fruit or a vegetable for tariff purposes depends upon its use. *Nix*v. *Hedden,*149 U. S. 304; *Togasaki & Co.*v. *United States,*12 Ct. Cust. Appls. 463, T. D. 40667; *Nippon Co.*v. *United States,*12 Ct. Cust. Appls. 548, T. D. 40781. The additional testimony in the instant case does not change our opinion that water chestnuts are generally used as vegetables in cooking meats or soup and not as dessert. While they are used to add flavor, they are eaten as food and not as a condiment. The witnesses testified that they were sometimes eaten raw, but there is nothing to show that'such use was as dessert. Carrots, celery, and other vegetables are also sometimes eaten raw. The fact that they are sometimes coated with sugar and eaten as candy does not indicate that they *axejruits.*According to the weight of the evidence, the chief use of water chestnuts is that of vegetables, as a principal part of the meal, and not like fruits generally, as dessert.

We hold therefore that the water chestnuts herein are properly classifiable as vegetables in their natural state under paragraph 774 of the Tariff Act of 1930. The protest is overruled and judgment will be rendered accordingly.