(C. D. 1057)

#### Dirk Uges *v.*United States

United States Customs Court, Third Division

(Decided June 18, 1947)

*Siegel, Mandell & Davidson (Sidney Mandell*of counsel) for the plaintiff.

*Paul P. Rao,*Assistant Attorney General *(Harold D. Grossman,*special attorney), for the defendant.

Before Cline and Ekwall, Judges

Cline, Judge:

This is a suit against the United States in which the plaintiff seeks to recover a part of the duty assessed on certain cheese at the rate of 7 cents per pound, but not less than 35 per centum ad valorem,under paragraph 710of the Tariff Act of 1930. The plaintiff claims that the merchandise is Gouda cheese, dutiable at 5 cents per pound, but not less than 25 per centum ad valorem, under paragraph 710, as modified by the trade agreement with the Netherlands, T. D. 48075.

The pertinent parts of the Tariff Act of 1930 and the said trade agreement are as follows:

> Pab. 710. [Tariff Act of 1930] Cheese and substitutes therefor, 7 cents per pound, but not less than 35 per centum ad valorem.

> Par. 710. [Trade Agreement with the Netherlands] Edam and Gouda cheese, 5 ji per lb., but not less than 25% ad val.

The merchandise is described in the invoices as Gouda cheese, spiced. Dirk Uges, the plaintiff herein, described the process of *2manufacture as follows: Milk is heated to a temperature of about 91 degrees, rennet is added to coagulate the milk, then the curd is worked with the harp and cut very fine, and the whey drained off. After that, they let it stand for 5 minutes and then pour hot water oyer the curd wbicb is kneaded by hand and seeds are worked into it. Finally, the fluid is drained off and the curd is placed in vats, in small hoops, and pressure put on for about 24 hours, after which the cheese is taken out of the hoops and put in brine from 4 to 6 days. It is then put on shelves and turned every day for a week until the crust is heavy enough, then it is turned once a week for about 3 weeks. The seeds, cumin seeds imported from the Dutch East Indies, are added to give the cheese a certain flavoring. Eegular Gouda cheese is produced in the same way except that no seeds are added and a little more coloring is used.

The witness also testified that there is a difference in flavoring between Gouda and Spiced Gouda cheese; that Gouda cheese might be acceptable- to some people, but the flavor of Spiced Gouda might not; that if he ordered Gouda cheese, he would not accept Spiced Gouda cheese; that when he wanted Spiced Gouda, he would have to order it by name; that Spiced Gouda cheese has a little tougher texture than regular Gouda; that the moisture content and the appearance of the two are about the same.

The only question involved is whether Spiced Gouda cheese may be classified as Gouda cheese under the trade agreement with the Netherlands. A similar question was before the court in *Kraft Phenix Cheese Corp.*v. *United States,*10 Cust. Ct. 271, C. D. 767, which involved the classification of Trauben-Swiss brand of Grilyére process-cheese which was flavored with Neuchatel wine. The trade agreement with Finland provided for a lower rate of duty on Gruyére process-cheese. The court held that Gruyére process-cheese covered a class of merchandise made from Swiss cheese by a process of melting such cheese and adding other products to produce the texture and flavor desired and that it included cheese so produced, whether or not it was flavored. The court also stated that it was not impressed with the contention that since orders for Gruyére process-cheese, without other qualification would be .filled with unflavored cheese, the only cheese of that description covered by the trade agreement was the unflavored variety, holding that the merchandise was one of the classes of Gruyére process-cheese, particular varieties being ordered under the brand name desired.

In the instant case, it appears that Gouda and Spiced Gouda cheese are made by the same process and that the only difference between them is in the addition of cumin seeds to flavor the Spiced Gouda. It is, therefore, one of the classes of Gouda cheese and is covered by the provision in the trade agreement. The protests are *3sustained insofar as they relate to the classification of Spiced Gouda cheese and that merchandise is held dutiable at 5 cents per pound, but not less than 25 per centum ad valorem, under paragraph 710 of the Tariff Act of 1930, as modified by the trade agreement with the Netherlands, T. D. 48075. As to all other items and in all other respects, the protests are overruled. Judgment will be rendered accordingly.