CONCURRING OPINION
McClelland, Presiding Judge:While this protest purports to cover various kinds of merchandise, the proof presented on the trial was limited to articles described as monocles.
The question that first presents itself to me is whether the protest as originally drawn was in sufficiently definite form to invoke the jurisdiction of this court. It is, so far as here pertinent, in form as follows:
Protest is hereby made against your decision assessing duty at 70% under par. 1513 or other rate or rates, on tin mirrors, magnets, monocle, and sim. mdse, covered by entries named below. The reasons for objections, under the Tariff Act of 1930, are that said merchandise is not chiefly used for the amusement of children and is dutiable at the following rates: 45%under par. 397, or at 33% under par. 412, or at 35% under par. 1413, or at 40% under par. 1541, or at 25% under par. 1537, or at 30% under par. 1502, or at 25% under par. 1403, or at 40% under par. 923, according to component material of chief value, or at 60% under par. 218.
It will be observed that at least three different kinds of merchandise classified by the collector as toys are made the subject of the protest. There is no indication as to which of the nine alternative claims applies to any one of the three articles named, and examination of the paragraphs cited reveals that some of them, such as paragraph 1541, which covers musical instruments, and paragraph 1502, which covers balls, boxing gloves, etc., could have no application to any of the merchandise in issue.
Section 514 of the Tariff Act of 1930, so far as pertinent, reads as follows:
* * * all decisions of the collector * * * as to the rate and amount of duties chargeable, * * * and his liquidation * * * of any entry, * * * shall, upon the expiration of sixty days after the date of such liquidation * * * [or] decision * * * be final and conclusive upon all persons * * * unless the importer, consignee, or agent of the person paying such charge or exaction * * * shall, within sixty days after, but not before such liquidation, * * * [or] decision * * * file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. * * * [Italics mine.]
The question as to the validity of this protest is on all fours with that passed upon by the Court of Customs and Patent Appeals in United States v. Fred. Gretsch Mfg. Co., Inc., 26 C. C. P. A. 267, C. A. D. 26. It was there pointed out that in the absence of a motion to dismiss the protest for failure to comply with the statute “it was the duty of the court to dismiss it sua sponte,’’ citing U. Fujita & Co. et al. v. United States, 26 C. C. P. A. 63, T. D. 49611. The following language from the unanimous opinion of the court is particularly applicable to the case at bar:
We think that the rules laid down in the above-cited and quoted authorities require a holding here that the protest when filed was not sufficiently distinct and specific to comply with the statute. Among its several features which lack distinctness and specificity it seems to us that the outstanding faults rest in (1) the failure to point out which of the goods in the importation should have been classified under the various claimed paragraphs, and (2) in the undue and unwarranted multiplicity of claimed provisions. In addition to what we have already said with reference to the right of a protestan! to claim alternatively, we think it proper to add that there certainly is some limit past which he cannot go in making a multiplicity of claims. While an irrelevant claim, inadvertently made, might not of itself invalidate a protest, surely it cannot be urged that a protestant has a right to claim that his goods are dutiable in all the other paragraphs of the tariff act except those under which the collector classified them. *619Obviously, such a pleading would not be a compliance with the law. A pertinent inquiry might be made as to where the line is to be drawn. On this phase of the case it is sufficient to say that we are of the opinion that no hard and fast rule can be made. Each statement of facts should rest on its own bottom. If the multiplicity of claims hides the real claims in such a way that it has not been made clear to the collector what is in the mind of the protestant, there has been no compliance with the requirement of the law.
I am therefore decidedly of the opinion that the protest should be dismissed. However, neither of my associates concurs with me in that view. Examination of the record satisfies me that the conclusion reached by Judge Sullivan is correct if it be assumed that the protest properly invokes the jurisdiction of this court. I therefore concur in that conclusion.