DISSENTING OPINION
Brown, Judge:I am unable to concur in the majority opinion and judgment dismissing these protests for lack of jurisdiction upon the claim that the protests are untimely.
The issue involved is whether the provision exempting from duty ships’ supplies for vessels actually engaged in foreign trade applies to a vessel first “enrolled,” as if in the coasting trade for certain local purposes, in going from one United States port to another to collect its foreign cargo, and before it commenced its foreign voyage.
The merchandise was released from warehouse on so-called conditionally free entries for ships’ supplies. This amounted to at least a tentative holding that the oil was entitled to free entry as for ships’ supplies. Endorsed upon the permits to this end was the statement by a customs official that the merchandise was laden on the S. S. Delmundo (see permits 119, 122, and 123).
The collector’s answer to the protest is a blanket one answering this and other protests relating to different boats and different warehouse entries, in addition to the warehouse entry here involved, and was filed with protest 848366-G (collector’s number 10908), but it *150specifically covers the three protests before us relating to the S. S. Delmundo and reads as follows under the heading:
Reasons and Authority for Action
Tax was assessed as above for the reason that, after the fuel oil had been withdrawn conditionally free of tax as fuel supplies, under Section 309 of the Tariff Act of 1930 and Section 630 of the Revenue Act of 1932, it was discovered that the vessels were under enrollment at the time the withdrawals were made. A demand on Form 5107 was then made upon the protestant to pay the tax provided for under Section 601 (c) (4) of the Revenue Act of 1932. The action of the Collector was sustained by the Commissioner of Customs, who, in telegram of October 6, 1936, stated that the facts clearly showed that the vessels were not engaged in a class of trade at the time of withdrawal of the oil that entitled free privilege under Section 630 of the Revenue Act of 1932.
Attached thereto is the radiogram of October 6, 1936, to the collector of customs from the Commissioner of Customs at Washington, D. C., to whom the collector of customs, evidently to make sure that his ruling about enrolled boats, then evidently being made, was correct, had submitted it. This reads as follows:
OCTOBER 6, 1936.
COLLECTOR CUSTOMS NEW ORLEANS LA
RELET SEPTEMBER TWENTY NINTH FUEL SUPPLIES VESSELS MISSISSIPPI SHIPPING COMPANY FACTS CLEARLY SHOW VESSELS NOT ENGAGED IN CLASS OF TRADE AT TIME WITHDRAWAL ENTITLED FREE WITHDRAWAL PRIVILEGE SECTION SIX THIRTY REVENUE ACT STOP ACTION YOUR OFFICE CORRECT STOP COLLECT STANDARD OIL COMPANY
MOYLE
The so-called liquidation of February 18, 1936, which the Government contends decided the question of enrollment and therefore makes these protests too late, was for the amount of $13,610.55, while the demand for payment of September 23, 1936, was for $6,059.13. This change of amount conclusively shows that the action in September was a reliquidation, which opened up the right of protest, if the action of February 18, 1936, was technically a liquidation and decision of this question concerning enrolled ships.
The form of the collector’s answer to protest also shows conclusively that he and the Commissioner of Customs were deciding for the first time in September 1936 the question of the legal effect of the temporary “enrollment” of a vessel engaged in foreign trade.
The so-called liquidation of February 18, 1936, could not have been a decision of that question because it covered entries as to registered vessels under this and other entries, as well as the enrolled boat Delmundo, the subject of the present controversy.
If the liquidation of February 18, 1936, was deciding the question at issue here (instead of being a mere formal statement of the classification, if dutiable) it would have been immediately followed by a demand of $13,610.55 which was not made then or afterward. We cannot *151assume that the collector of customs would have neglected his duty for more than six months. On the contrary, he expressly states that “then,” i. e., just before he made the demand for $6,059.13, the fact of enrollment had come to his attention and been taken up for decision.
It is true that a formal liquidation in a matter of this kind may have been considered necessary stating the classification if it later turned out that the oil was not laden as supplies for a vessel engaged in foreign trade. This, ordinarily, would have come before withdrawal from1 warehouse on conditionally free entries for ships’ fuel supplies.
The fact that due to rush of business in the collector’s office or other accidental cause it happened to be delayed until after the conditionally free entries had been made out of warehouse would not change it into a decision of the controversy here, which was not up at that time, and was only later taken up for decision upon its later discovery as the collector’s formal answer to the protest shows.
There could be no presumption from official action which would change its effect contrary to the official statement of the actor himself.
We therefore should hold without hesitation that these protests were timely, should take jurisdiction and decide the case on the merits. On the merits of the question here involved the plaintiff brings itself under the express terms of the exemption.
The statute frees the oil from duty if it is used for fuel upon a ship engaged in foreign trade. This ship was solely engaged in foreign trade. The fact that it was enrolled instead of registered, though not actually engaged in coastwise trade, while proceeding- from New Orleans to Pensacola for the purpose (after obtaining temporary registration) of picking up cargo for foreign trade at Pensacola and Mobile, all of which the record plainly shows, would not destroy the express exemption or legally affect it in any way.
Judgment should issue for refund of duty collected upon all this oil used as- fuel by the Delmundo except possibly, but by no means certainly, the very small portion , consumed while going from one United States port to another to pick up her foreign cargo.