The opinion of the court was delivered by: MURPHY
This is an action to recover excise taxes assessed against plaintiff under the Sugar Act of 1937 (7 U.S.C.A. §§ 1100-1183; 26 U.S.C. § 3490 et seq. (1940 ed.)) on sugar manufactured by plaintiff and sold between February and October, 1939.
The Sugar Act of 1937 imposed a tax upon sugar manufactured after September 1, 1937, which was sold for direct consumption. Sugar sold for further refining as distinguished from direct consumption was not subject to tax.
The relevant sections are:
'(a) Rate. Upon manufactured sugar manufactured in the United States, there shall be levied, collected and paid a tax, to be paid by the manufacturer at the following rates:
'(1) On all manufactured sugar testing by the polariscope ninety-two sugar degrees, 0.465 cent per pound, and for each additional sugar degree shown by the polariscopic test, 0.00875 cent per pound additional, and fractions of a degree in proportion;
'(2) On all manufactured sugar testing by the polariscope less than ninety-two sugar degrees, 0.5144 cent per pound of the total sugars therein.
'(b) Exemption. No tax shall be required to be paid upon the manufacture of manufactured sugar by, or for, the producer of the sugar beets or sugarcane from which such manufactured sugar was derived, for consumption by the producer's own family, employees, or household.'
' § 3491. Returns and payment of tax
'(a) Returns. The manufacturer shall file on the last day of each month a return and pay the tax with respect to manufactured sugar, (1) which has been sold, or used in the production of other articles, by the manufacturer during the preceding month (if the tax has not already been paid) and (2) which has not been so sold or used within twelve months ending during the preceding calendar month, after it was manufactured (if the tax has not already been paid).
'For the purpose of determining whether sugar has been sold or used within twelve months after it was manufactured sugar shall be considered to have been sold or used in the order in which it was manufactured.'
' § 3507. Definitions * * *
'(b) Manufactured sugar. The term 'manufactured sugar' means any sugar derived from sugar beets or sugarcane, which is not to be, and which shall not be, further refined or otherwise improved in quality; except sugar in liquid form which contains nonsugar solids (excluding any foreign substance that may have been added * * *) equal to more than 6 per centum of the total soluble solids, and except also sirup of cane juice produced from sugar cane grown in continental United States.
'The grades or types of sugar within the meaning of this definition shall include, but shall not be limited to, granulated sugar, lump sugar, cube sugar, powdered sugar, sugar in the form of blocks, cones, or molded shapes, confectioners' sugar, washed sugar, centrifugal sugar, clarified sugar, turbinado sugar, plantation white sugar, muscovado sugar, ...