delivered tbe opinion of the court:
Certain merchandise was imported by appellee at the port of New York and was classified by the collector as an alcoholic compound under paragraph 24 of the Tariff Act of 1922. The importer protested, claiming the goods to be classifiable as “all other soap * * * not specially provided for” under paragraph 82 of said tariff act, with alternative claims under paragraphs 13 and 1459, which alternative ■claims are not pressed here.
On the hearing in the court below the appraiser’s answer to the protest, together with the Government-chemist’s report and a sample *28of the merchandise, were introduced in evidence, and upon these the case was submitted and the protest sustained. The appraiser’s report recites, in part:
The merchandise in question is described on the invoice as liquid soap (Ditto Cleaning Paste), and was on examination found to be a compound containing more than 20 and less than 50 per centum of alcohol.
The chemist’s report is as follows:
The sample is a soap composed of soap, alcohol, water, free fat or oil, ’and a trace of perfume.
Loss at 100° C_ 65%
Free oil and unsaponifiable matter_ 6. 6%
Soap-28. 4%
Not sulphonated and contains no castor oil.
42.1% absolute alcohol by weight.
The sample is a collapsible tube about Q% inches in length containing-a soft paste or cream much like shaving cream, almost white in color,, and slightly scented. On the tube is a label which reads as follows:-
DITTO
Cleaning Paste
Harmless medium for cleaning hands from stains of Ditto typewriter ribbons, carbon paper, inks, or pencils. Rub a little paste over soiled spot, then wash in water.
It is conceded .by counsel for both parties that under the holding-in United States v. Farbenfabriken of Elberfeld Co., 3 Ct. Cust. Appls. 358, T. D. 32911, the classification of the collector was erroneous and that the material should have been classified under said paragraph 82. It is also expressly conceded by counsel for the importer that the merchandise in question is soap. The only question, therefore, for" determination is whether the material is toilet soap or whether it comes in the general provision for all other soap not specially provided for in said paragraph. Said paragraph 82 reads as follows:
Par. 82. Soap: Castile, 15 per centum ad valorem; toilet, 30 per centum acL valorem; all other soap and soap powder not specially provided for, 15 per centum ad valorem.
The dutiability of this soap must be tested by its chief use. The only evidence there is before us in this respect is contained in the contents of the label above quoted. From this it appears the soap is used for the purpose of cleaning stains from the hands. The-material is applied to the hands and they are then washed with water, and this is said to eradicate the stains.
This being the use of the soap, it is obvious that it is a toilet soap. In United States v. Yardley & Co., 16 Ct. Cust. Appls. 499, T. D. *2943226, we said that toilet soap is one the chief use of which is in connection with the toilet. Later, in United States v. Conover and F. Rochow & Co., 17 C. C. P. A. 462, T. D. 43917, we had before us certain soap used by mechanics and others for cleaning hands which were unusually soiled with ink, grease, tar, etc. The question there, as here, was whether the soap in question was a toilet soap. In discussing this matter we said:
It could hardly be contended that the act of washing and cleansing the hands was not a part of the making of the toilet. What means shall be utilized in doing this is just a matter of degree. There is a considerable difference between the grimy hands of the boy as he comes from play and the dainty fingers of the lady of fashion. What will cleanse one will have no effect on the other. The cleansing of them, however, in both cases, is a toilet operation. The fact that the engineer or garage mechanic must use this, or a like soap, to cleanse his hands or arms, does not make it any the less a part of his toilet. The term “toilet soap” is doubtless used in the statute to differentiate soap used in making the toilet, from “all other soap and soap powder,” such as is used for household and laundry purposes. We are of opinion the soap in question was properly classified as toilet soap.
That language is equally applicable here. We are therefore of opinion that the articles of importation in question should have been classified as toilet soap under the second clause of said paragraph 82. The importer, however, not having protested under this classification, is not entitled to relief, and the collector’s classification must stand.
It is suggested that under the reasoning of the opinion filed by this court in United States v. Neuman & Schwiers Co., 18 C. C. P. A. — , T. D. 43971, the court is not at liberty here to consider the label appearing on the sample in this case as any evidence of the use of the article. We do not so understand the opinion filed in the case cited. There this court said:
The label on the bottle and the very unsatisfactory evidence as to the alcoholic content under the circumstances we think would not justify this court in suggesting that the merchandise is dutiable under paragraph 24.
This was not at all a holding that the label was not evidentiary in character.
As a matter of fact, in United States v. Conover and Rochow, supra, we considered the label on the soap in question as evidence, to some extent at least, of the use of the material in question.
The judgment of the United States Customs Court is reversed without approving the classification made by the collector,