DISSENTING OPINION
Bland, J. and Garrett, J.:It seems to us that the majority of the court in this case is reading into section 662 a purpose never intended by Congress. The phrase “upon payment of the duties accruing thereon, in its condition at the time of withdrawal from warehouse” was never intended to give the importer who warehoused his goods a right of action which he had lost by failing to protest within the time limit prescribed by the statute.
Let it be remembered that in this case the importer warehoused his wool at a time when the collector, without objection, assessed it with duty at 33 cents per pound and 20 per centum ad valorem. It was an incorrect assessment, as was later decided by this court, but the importer did not protest. After this court’s ruling in United States v. Stone & Downer, 12 Ct. Cust. Appls. 293, T. D. 40296, importer made application for permission to repack the merchandise. There is no manner in which he could repack it that would change its dutiable status. See Schedule II, Tariff Act of 1922. A scouring or recar-bonizing would probably have changed its dutiable status, which would have required a reliquidation, which importer might have protested.
The phrase “ Upon payment of the duties accruing thereon, in its condition at the time of withdrawal from warehouse” was intended by Congress to require taking a duty on its changed condition, because the reconditioning, in a great many instances, would bring about a changed dutiable status.
*135If the majority of the court is right that this importer, by virtue of a repacking which does not change the dutiable status, is entitled to a reliquidation, then the court is wrong in holding that the weight at the time of withdrawal should not be taken. Section 319 has application to warehoused goods whose dutiable status was not changed by manipulation. If the importer was entitled to a reliqui-dation by virtue of a changed condition and thereby entitled to secure the application of a new rate of duty, clearly he would be entitled to have his goods reweighed upon withdrawal.
The result of the opinion of the majority of the court is that one having goods in warehouse may wait until some other litigant tries a case, permit the statute to run against him, and then, under the guise of reconditioning, which reconditioning does not change the dutiable status, secure for himself a right of trial denied to those who had entered goods at the same time but had entered them for consumption.
To our way of thinking it is a dangerous conclusion to say that Congress intended to provide that the owner of warehoused goods should have the statute of limitations extended to him when it is expressly denied to other classes of entrants.
There is an enormous amount of warehoused goods in the United States, and if the majority’s opinion remains the law, it is fair to assume that there will be few protests against original liquidation of this character of merchandise, since it will only be necessary for the owner to petition to repack in order to extend the protest limitation for the full period of three years.
The judgment of the court below should be reversed.