specially concurring: We concur the conclusion reached by the majority in the instant case without, however, joining in the reasons given in their opinion, but for the particular reason that we do not think the processes applied to the goods in question constituted such a manufacture as was contemplated by section 313 of the Tariff Act of 1922, the material portion of which reads:
Sec. 313. That upon the exportation of articles manufactured or produced in the United States with the use of imported merchandise the full amount of the duties paid upon the merchandise shall be refunded as drawback, less 1 per centum •of such duties * * *
At the trial below, the papers in the case were introduced and no testimony taken, and the issue there was confined to the question as to whether or not goods, imported under the provisions of section 308, might be the subject matter of drawback under section 313.
The court below, however, Mr. Justice Brown dissenting, held that the collector was right in declining to pay drawback, resting its decision upon both the ground recited in the majority opinion of this court and upon that of this special concurrence:
Where an importer who has brought in merchandise under section 308, making bond therefor, and later has chosen to cancel the obligation of the bond by entering the merchandise for consumption and paying the duty thereon, elects, in good faith, really to manufacture that merchandise and export it, the question of whether he should be entitled to receive the drawback is one which we think should have fuller consideration than we have felt it necessary to give in the instant case, and we withhold an expression of opinion upon that phase of the controversy.
Upon the question of manufacture of the goods involved the court below found as follows:
These dresses were made in France and were imported in the finished state, and there is nothing in the record to indicate that as they were exported they were “ articles manufactured or produced in the United States with the use of imported merchandise,’' which, under the drawback section of the said act of 1922, is absolutely necessary as an element of proof before drawback can be lawfully authorized by the Secretary of the Treasury or paid by the collector of customs.
It is true that upon the face of the drawback entries there is described a number of dresses of “Brenmoth finish” and another number of “Showerproof finish,” and that in the form of an affidavit upon the face of each entry one Leon S. Pelz of the firm of Pelz-Greenstein Co., factors for Madison 'Textile Corporation, declares that the dresses described in the entries were manufactured by the *310Criterion Piece Dye Works at New York, but it is apparent to this court from the official papers in the record that the merchandise as imported consisted of finished dresses, and that they were exported as dresses and were not, therefore, manufactured in the United States “with the use of imported merchandise,” as provided in section 313, supra.
Offer was made by the writer of this opinion to counsel for protestant to restore the protest to the calendar that they might have opportunity to produce proof of manufacture, if any such proof could be produced, but the offer was declined, and the protest must therefore be overruled on the further ground that there is no competent evidence before this court that the exported dresses were manufactured in the United States with the use of imported merchandise. Holt v. United States, T. D. 42826, and Rentner v. United States, 15 Ct. Cust. Appls. 147, T. D. 42217.
This finding was entirely justified from the record. Some of the garments seem simply to have been sprayed with a solution of tartar emetic and camphor and others with a solution of acetic acid and formaldehyde, some solutions being also applied in vaporized form.
In o ur opinion these processes do not constitute the manufacturing process contemplated and intended by Congress in the drawback section 313, and for this reason, without more, we think the judgment of the court below should be affirmed.