DISSENTING OPINION
Gkaham, Presiding Judge:I am unable to agree to the conclusion reached by the majority in this case, for reasons which I shall briefly state.
The material involved is what is known as soup squares. On the hearing, it was stipulated by counsel that the merchandise is the same as that which was before the Board of General Appraisers in protest 961112, and, without objection, the record in that case was introduced in evidence in toto. In said record appears the appraiser’s advisory report in which he thus describes the merchandise:
Erbewurste (pea soup in rolls), and as soup squares, and consists of an article similar to sausage rolls and bouillon cubes composed mainly of lentil flour, fat, salt, seasoning, and meat extract, but not meat.
On the hearing in said incorporated record, one witness was called and examined — Charles J. Steyer. He introduced samples of the importation, and made the following statements in his examination:
Q. Have you yourself used articles like these exhibits? — A. Yes, sir.
Q. Have you seen them prepared for use? — A. I have prepared them myself.
Q. What is the method of their preparation? — A. Why, you just break up the contents, just as a meal or flour, add hot water, and just cook it for a few minutes to increase the flavor, and then serve.
Q. And the result is, what? — A. Soup.
*84By Judge Waite:
Q. Is it seasoned or do you season it? — A. It has been seasoned by the manufacturer.
By Mr. Klingaman:
Q. Are you familiar with bouillon cubes? — A. Yes.
Q. Are they used in the same way? — A. The same manner.
Judge Waite. No meat in these, I understand?
Witness. There is no meat at all, only meat extracts.
From this testimony it appears that the use of the soup squares in question is, if not identical, very similar to the use of the various products named in the following clause of paragraph 773:
Pab. 773. * * * soups, pastes, balls, puddings, hash, and all similar forms, composed of vegetables, or of vegetables and meat or fish, or both, not specially provided for, * * *.
The question in my mind is, if the soup squares in question here must be said to contain no meat, and as to that I do not find it necessary to express an opinion, Are the articles of importation not properly classifiable by similitude under paragraph 773 rather than as not enumerated manufactured articles under paragraph 1459? In this connection two rules are well established: First, that similitude is a question of fact and must be established; second, if there is a substantial similitude, either in material, quality, texture, or use, to an article or product enumerated in any paragraph of the dutiable list, then the imported article shall be classified under said paragraph rather than as a not enumerated manufactured article. Ringk & Co. v. United States, 13 Ct. Cust. Appls. 126, T. D. 40960; American Smelting & Refining Co. v. United States, 16 Ct. Cust. Appls. 46, T. D. 42718.
The fact of similitude, in my opinion, has been established by the testimony of the witness. Ste.yer, above quoted. There being a proved similitude of material and use of the imported material to the various articles named in the quoted portion of paragraph 773, is there any reason why this product should not be classified under said paragraph 773, either in reason or based upon any of the prior adjudications on this subject?
The majority opinion cites and relies upon Lang v. United States, 4 Ct. Cust. Appls. 129, T. D. 33394, as authority in support of the proposition that the articles before us can not be classified by similitude under paragraph 773. I do not so read the case. The articles involved there were. bouillon cubes made of extract of vegetables, with traces of extract of meat sufficient for bases. The Board of General Appraisers had held the material dutiable by similitude to “extract of meat” under paragraphs 481 and 287 of the Tariff Act of August 5, 1909. This court held that there must be a substantial similitude to the article in question to warrant classification thereby. *85In view of the presence of meat extract in the preparation, the court held there was no substantial similitude with the provision of paragraphs 481 and 252 of said act, as “vegetables * * * prepared in any way.” The court also held there was no similitude between prepared vegetables and vegetable extract. In this connection, however, it will be remembered there was no evidence showing any similarity of use in the record. Again, the court there held there was no similitude between the product and extract of meat because what proof there was demonstrated that the element of chief value in the preparation was vegetable extract.
In the authority cited in said Lang v. United States, namely, T. D. 32030, where the similitude of extract of beef and marmite was involved, the court arrived at its conclusion on the theory that the results produced by the use of these products were entirely different, and hence there was no real similitude.
There is nothing in the authority cited, in my judgment, which has any decided weight in the case at bar. The Lang case was ■decided under the act of August 5, 1909, under an entirely different provision from that which we have before us now. As a. matter of fact, as alluded to by the Assistant Attorney General in his brief filed herein, the Congress, in enacting the Tariff Act of 1922, added considerable language to this provision in the statute. The extension of the paragraph is well stated by the Assistant Attorney General in the following excerpt from his brief:
When, considering the history relating to the vegetable paragraphs, as above set forth, and realizing that according to the suggestions made before the Tariff Commission, paragraph 200, of the Tariff Act of 1913, was so enlarged by the enactment of paragraph 773, of the Tariff Act of 1922, as to include vegetables “ prepared, or preserved in any other way and not specially provided for; sauces ■of all kinds, not specially provided for; soya beans, prepared or preserved in any ■manner,” and again reenacting that part of paragraph 200 which relates to “bean stick,” “miso,” “bean cake,” and “similar products,” and following the past provision by “soups, pastes, halls, puddings, hash, and all similar forms, composed of vegetables and meat or fish, or both, not specially provided for,” * * * (Italics ours), it is believed, it requires no great argument to convince an unbiased mind that it was the. express intention of Congress to include all “soups” or “vegetables prepared in any * * * way” intended for soups, such as miso, and other prepared vegetables, like the articles involved herein, which are intended to be used for soups and sold in the market as “soup.”
I am unable to understand why the articles now before us, being composed of prepared vegetables, fats, and meat extract, and used ■exactly as are the articles named in this additional provision inserted in the Tariff Act of 1922, should not be classified there by similitude, if not therein specifically enumerated. Certainly they are “all similar forms,” and whether they may be said to contain meat or not they have a similarity of use and material which, beyond all question, ought to relegate them by similitude to said paragraph 773.
*86The case of Anderson & Co. v. United States, 6 Ct. Cust. Appls. 108, T. D. 35344, is ci'ted by counsel for the Government. In that case, articles known as “Maggi’s desiccated soup in tablets” were imported. These tablets were shown to be wholly made of vegetable substances. There the question was raised whether the articles of importation, being vegetables compressed into the form of tablets, were a product similar to bean stick, bean cake, or miso, the latter products being composed of beans ground into various forms, and the identity of the beans having been lost in the process. The paragraph in question in that case, namely, paragraph 252 of the Tariff Act of August 5, 1909, provided for:
Vegetables, if cut, sliced, or otherwise reduced in size, or if parched or roasted, or if pickled, or packed in salt, brine, oil, or prepared in any way; any of the foregoing not specially provided for in this section, and bean stick or bean cake, miso, and similar products, forty per centum ad valorem.
The court held that the use of the imported article being the same as that of the articles named in said paragraph 252, namely, in the preparation of soup, force should be given to the words “and similar products” to the extent of including the imported articles therein.
■ This case might well be held to be authority for the direct inclusion of the articles of importation here within the language, “and similar products,” in said paragraph 773. In any event, I am convinced it should be there classified, at'least by similitude, and that the judgment of the court below should be affirmed.