DISSENTING OPINION
Evans, Judge:I regret that I cannot concur in the opinion of my associates in the foregoing case for the reason that it is clear from the papers introduced in evidence that an allowance ivas made in liquidation for the decayed melons. This appears by the statements on the amended entry and by the sworn testimony of the witness Curley. It is true that the allowance was made in a roundabout manner but the same was approved and adopted on liquidation. Therefore it must be said that the requirements of the statute authorizing an allowance in such cases have been complied with. The regulations (article 807, Customs Regulations of 1931) authorized by section 506 (2) of the Tariff Act of 1930 provide:
(6) If it appears from the evidence submitted by the importer and the report of the investigating officers that the merchandise was condemned within 10 days after the landing thereof, and a timely notice was filed, allowance for the articles so condemned may be made in the liquidation of the entry.
The decision holds that the regulations were complied with. I thinlr that compliance with the regulations has been shown when it is considered that the officers made the investigation, accepted the conclusion of-loss of merchandise, and adjusted the valuation so as to make allowance to the importers for a reduction in the amount of duty to be collected. The fact that the importers filed amended entries accepting the valuation placed on the sound merchandise by the appraiser indicates that they were cooperating with the appraiser in making the adjustment. I think that fact appears from the testi*68mony of the examiner and therefore the importers ought to be estopped now from claiming this refund.
The majority opinion recites that the importers are entitled to recover on technical grounds and cites cases in support of this finding. There can be no question but that an importer has a right to recover in any case where the law warrants recovery regardless of any question of hardship or equity, but recovery on technical grounds is quite a different thing from recovery twice for the same thing. As I view it, this is clearly a case of an attempt to procure a rebate where an allowance has already been made to the importer.
Furthermore, I cannot agree with the finding that an “appraisement cannot be attacked when all elements necessary to a valid appraisement of the merchandise were present.” My understanding of the effect bf the case of United States v. Murphy, 16 Ct. Cust. Appls. 461, T. D. 43210, and others, is that a liquidation may be attacked on protest because it was based on a void appraisement, thus sustaining the proposition that an appraisement can be attacked.
I think that, having made an allowance for damage in liquidation, the collector has complied with the statute, and that the protests should be overruled.