DISSENTING OPINION.
Martin, Judge:In my opinion the protest of the importers in this case was insufficient and the majority decision of the board was right in overruling it. The merchandise consisted of strips of leather designed to be manufactured into automobile tire treads. It is conceded that they wore dutiable under paragraph 451, tariff act of 1909. That paragraph includes various separate classifications.of leather and skins and imposes different rates of duty upon them. The first clause of the paragraph imposes a duty of 5 per cent ad valorem upon “band, bend, or belting leather.” A subsequent clause in the paragraph imposes a duty of 15 per cent ad valorem upon “other skins.” The last clause of the paragraph reads as follows:
Provided, That leather cut into shoo uppers or vamps or other forms, suitable for conversion into manufactured articles, and gauffre leather, shall pay a duty of ten per centum ad valorem in addition to the duty imposed by this paragraph on leather of the same character as that from which they are cut.
Under the foregoing provisions the collector held that the merchandise was subject to duty at the rate of 15 per cent ad valorem as "other skins,” and also to 10 per cent ad valorem as “leather cut into forms suitable for conversion into manufactured articles.” The merchandise was accordingly assessed with duty at the rate of 25 per cent ad valorem.
*290The importers protested against the assessment, claiming that the merchandise “should have been admitted as band or belting leather, and a duty of only 5 per cent ad valorem imposed in accordance with paragraph 451 of the tariff act of 1909, and more particularly in accordance with that part of the section which reads: 'Band, bend, or belting leather, * * * five per centum ad valorem.’”
It therefore appears that the collector assessed the goods with 25 per cent ad valorem duty as being both “other skins” and leather “cut to form,” and that the importers by unmistakable averments in the protest, contested the entire assessment and claimed as a substitute therefor an assessment of only 5 per cent ad valorem under the provision for band, bond, or belting leather.
Upon the record it appears that the goods were rightly subject to duty at 5 per cent ad valorem under the provision for “band, bend, or belting leather,” and additionally to 10 per cent ad valorem under the provision for leather “cut to form,” that is to say, the merchandise should rightly have been assessed with duty at 15 per cent ad valorem.
It thus appears that neither the collector nor the importers were correct in the claim respecting the proper assessment of the merchandise.
The collector’s assessment included two elements, namely, 15 per cent ad valorem as “other skins” and 10 per cent ad valorem as “leather cut to form.” The first of these was incorrect; the second was correct.
The importers’ protest contested the entire assessment, including both the correct and the incorrect constituents, and claimed assessment at only 5 per cent ad valorem duty as “band, bend, or belting leather.”
The importers’ protest, therefore, should be overruled. It is the office of a protest to object to an incorrect assessment and at the same time to state specifically the correct provision or provisions of the tariff act under which the merchandise should be assessed.
The present protest complies with half only of this requirement. It contests the incorrect assessment made by the collector, but it fails to set out correctly the provisions of law under which the assessment rightly should be made. It simply proposes one incorrect rate of duty as a substitute for another incorrect rate. In other words, the well-established rule requires that the importers’ protest must correctly set out the provisions of the law under which the merchandise should be assessed; otherwise it can not be sustained. The present protest fails to do this. Its claim is plainly incorrect, and if it were actually sustained as made it would result in assessing the merchandise at a rate of duty quite as erroneous as was the original assessment.
It should be noted also that the claim of the importers for assessment is single and indivisible. The protest presents but one claim *291concerning the correct assessment of the merchandise, and that is that it should be assessed at 5 per cent ad valorem, and no more. If this claim be incorrect (and it is now conceded to be so) then the protest should be overruled.
It may be regretted, in such a case, that the importers mistook their remedy, and therefore failed to file a protest such as would entitle them to relief; but this consideration does not justify a departure from the well-defined rule of procedure in such cases, and in the present case there is all the less reason for departing from the rule, since the claim for assessment made by the importers in the protests was unmistakably made for the purpose of resisting the imposition of the 10 per cent cumulative duty upon the merchandise, which duty, however, is now conceded by the importers to be applicable to the merchandise.
I am therefore of the opinion that the decision of the board should be affirmed.