DISSENTING OPINION
Brown, Judge.This suit against the United States was brought at Portland, Maine, and there tried, to recover customs duties claimed to have been illegally exacted on certain imported merchandise called dryer’s felt from France via Montreal, Canada.
The collector of customs took duty at 18 cents per pound as “wool rags” under paragraph 1105 of the wool schedule of the Tariff Act of 1930 reading as follows:
Par. 1105. (a) Top waste, slubbing waste, roving waste, and ring waste, 37 cents per pound; garnetted waste, 26 cents per pound; noils, carbonized, 30 cents per pound; noils, not carbonized, 23 cents per pound; thread or yarn waste, 25 cents per pound; card or burr waste, carbonized, 23 cents per pound; not carbonized, 16 cents per pound; all other wool wastes not specially provided for, 24 cents per pound; shoddy, and wool extract, 24 cents per pound; mungo, 10 cents per pound; wool rags, 18 cents per pound; flocks, 8 cents per pound.
(b) Wastes of the hair of the Angora goat, Cashmere goat, alpaca, and other like animals, shall be dutiable at the rates provided for similar types of wool wastes.
Here it should be noted that the wool schedule, of which paragraph 1105 is a part, establishes high protective rates for the American wool industry, both manufacturers of woolen fabrics and growers of wool itself. After placing high rates upon wool itself in various conditions and of various kinds, the wool schedule next taxes, also at high rates, the various wool wastes and similar articles which, as a matter of common knowledge, go into the manufacture of woolen fabrics, in said paragraph 1105, including “wool rags.”
*658. The plaintiffs’ principal claim is for classification of the merchandise under paragraph 1555 reading as follows: “Par. 1555. Waste, not specially provided for, 10 per centum ad valorem.”
There are also alternative claims in the protest and amended protest under the nonenumerated paragraph at 10 percent as unmanufactured or 20 percent aa manufactured; at 20 percent under paragraph 1514 as papers and cloth or combinations thereof, coated with abrasives; and at 50 percent as a manufacture of wool.
As we shall hereafter see that the issue turns upon the question whether Congress intended to include this article in the nature of a waste under the wool waste paragraph, as wool rags, or the general waste paragraph 1555, these alternative claims may be put to one side.
The merchandise is admittedly of chief value of wool. The merchandise was imported in pieces varying from 3 feet to 25 feet in width, and from 3 feet to 35 feet in length (R. 5). Those sizes, on their face, would be too large to be reasonably designated as rags.
The importation consists of dryer’s felt called Palmer or sanforizing blankets in a worn-out condition. When new these are used chiefly in textile finishing operations and are discarded when'they become so worn and burnt by heat and friction as to render them unfit for their original purpose. (R. 14 and Exhibit A in the form as unused comparing it with Exhibits 1 and 2, the imported merchandise, and R. 35.)
It is used for wiping and abrasive purposes in the steel industry (R. 6) and in the optical glass industry for its wiping, abrasive, and polishing qualities.
The evidence is overwhelming and stated by experienced, qualified witnesses from the wool waste and shoddy trade, who testified that it is not and cannot be used for remanufacture into wool garments as wool rags as the other articles enumerated in paragraph 1105 are used.
As witness O’Roak testified (R. 35):
We don’t consider them rags because the fibers are so short and they have so much foreign matter in them and they have had so much heat applied to them that they are worthless as rags. They are used until they are no longer heat resisting. The little spikes have all been burned off, so they have no spiral quality left.
As shown by all the testimony and the samples in evidence the article is undeniably waste and we so find as a fact herein.
The merchandise answers the legal definition of “waste” as stated by the Supreme Court in Patton v. United States, 159 U. S. 500, 503, and in the language of our court of appeals in Harley Co. v. United States, 14 Ct. Cust. Appls. 112, T. D. 41644, where it is said:
In t.he tariff sense, waste is a term which includes manufactured articles which have become useless for the original purpose for which they were made and fit only for remanufaeture into something else.
The reasoning in Louisville Bedding Co. v. United States, 14 Ct. Cust. Appls. 328, T. D. 41958, is unsound as applied to the situation here before us. In that case it was not shown, as here, that the use of the other articles mentioned in paragraph 1105 is practically confined to the wool industry for making cloth.
In the light of this record the conclusion there arrived at should be re-examined or re-applied.
Also in that case the pieces of cloth there involved were too small to be made part of a garment, none was large, as here. They were actually rags. The main contention there made by the importer was that they could not be wool rags because in part of cotton, which contention was naturally overruled.
The claim of ejusdem generis failed there because there was no proof, as here, of the use for manufacture into cloth of the articles named in paragraph 1105.
*659For the above reasons we should sustain the claim in the protest for classification of this merchandise at 10 percent ad valorem under paragraph 1565 as waste not specially provided for.
Judgment should issue accordingly, directing the collector to refund the difference between that rate and the rate of duty of 18 cents per pound which he collected. •
The above upon a subject regularly assigned to the writer was prepared as for a division opinion. Being rejected by the majority, it is now respectfully filed as a dissent.