DISSENTING OPINION
Brown, Judge:This suit against the United States was brought at Los Angeles, Calif., to recover certain special taxes of 4 cents per gallon claimed to have been illegally collected under section 601 (c) (4) of the Revenue Act of 1932 on imported lubricating oil sold for ships’ supplies to foreign ships entering that port.
The plaintiffs’ claim is based upon section 630 of said Revenue Act of 1932, which reads as follows:
*121SEO. 630. EXEMPTION FROM TAX OF CERTAIN SUPPLIES FOR VESSELS.
Under regulations prescribed by the Commissioner, with the approval of the Secretary, no tax under this title shall be imposed upon any article sold for use as fuel supplies, ships’ stores, sea stores, or legitimate equipment on vessels of war of the United States or of any foreign nation, vessels employed in the fisheries or in the whaling business, or actually engaged in foreign trade or trade between the Atlantic and Pacific ports of the United States or between the United States and: any of its possessions. Articles manufactured or produced with the use of articles, upon the importation of which tax has been paid under this title, if laden for use as supplies on such vessels, shall be held to be exported for the purpose of section 601 (b).
The proof shows that all the lubricating oil here involved was imported by a ship chandler whose business is selling ships' supplies and which concern (the real plaintiff for which company the customs broker brings this suit) actually sold it all to ships engaged in foreign trade for their supplies.
The following colloquy took place between counsel (R. pp. 6, 7):
Mr. Gottfried. I have here the warehouse withdrawals in the various entries, and other documents contained in the official files of the collector of customs, which show that this merchandise was withdrawn from bonded warehouse, and also that the merchandise was laden on board certain vessels which cleared at the port of Los Angeles for a foreign port.
Judge Dallinger. It is agreed by and between counsel that all of this merchandise remained in customs custody during this period?
Mr. Spector. Upon Mr. Gottfried’s statement, and that he personally examined the documents and all the merchandise covered by the protests, as shown by the documents in the possession of the collector, that the merchandise was sold to ships leaving for a foreign port, the Government agrees to stipulate those facts without any proof being offered.
Mr. Gottfried. I want to amend that, to eliminate two protests, to wit 759319-G and 748109-G. The statement above referred to insofar as it refers to the other protests is acceptable to the plaintiff. In other words, with respect to these protests, 759319-G and 748109-G, the merchandise was entered under consumption entry and did not remain in the Government bonded warehouse.
Judge Dallinger. Does the Government contend that that makes any difference?
Mr. Spectoe. Yes; we think it does. In the brief we will have to show the difference.
The real evidence following conclusively establishes that all the oil here involved was sold by the ship chandler to foreign ships as part of their ships’ supplies with which to lubricate their machinery.
The Government’s contention is as follows in Government brief, pages 4 and 5:
* * * Section 630 provides that no tax could be imposed upon an article sold for use as fuel supplies, which means that the imposition of the said tax and the sale of the said merchandise as fuel supplies, etc., had to be simultaneous in order to be entitled to exemption. If the merchandise had already been sold as fuel supplies then it was entitled to exemption from said tax but such sale had to take place prior or at the time of importation. Once the tax had been levied *122upon this merchandise it could not subsequently be exempted or waived. Nowhere does the act provide for any waiver of the tax or remittance of the tax by reason of a subsequent use.
The case at bar is entirely different from that in the case of Guy B. Barham Co. v. United States, T. D. 48579, 70 Treas. Dec. 461, quoted by the importer in its brief, because in that case there was no delivery of the merchandise to Government warehouse, nor was it delivered to the importer but was sold and delivered to various Norwegian vessels.
We contend that where the tax under section 601 (c) (4), supra, has already been assessed by reason of the said merchandise being so taxable, that such tax could not subsequently be remitted by the occurrence of an act after importation.
In any event the merchandise as covered by protests 759319-G and 748109-G could not possibly be entitled to exemption under section 630, supra, because that merchandise left Government custody, was entered for consumption, was on the premises of the importer, was offered for sale to all persons and all comers, and was subsequently sold to several people. There was no evidence that part or all of the merchandise was not sold for purposes other than those contained in section 630, supra. There was no definite proof that the merchandise sold for fuel supplies was identical to the imported merchandise. The merchandise in these two protests having left the Government’s custody, was not under Government control, and could not be properly identified as being the same merchandise subsequently sold to foreign vessels. We therefore urge that these two protests be overruled in all respects.
The latter factual contention is in error because the oral proof shows conclusively that every bit of the imported merchandise was sold and delivered to foreign ships for lubricating oil.
Section 350 is for the benefit of foreign trade. It would benefit it very little if the Government’s contention prevailed. Ships have to buy supplies like lubricating oil as they need them and that need depends largely upon the storms and weather of the voyage.
It would be difficult to order in advance lubricating oil in foreign countries to meet them in appropriate supply at their ports of call. By ordinary necessity they must pick them up from ship chandlers, like the importer here, when they reach port as they can find them. Consequently, if the exemption is narrowly construed to supplies bought by advance orders before importation, it would take the heart out of the exemption and make it almost useless for the ordinary small shipowner. Only the very largest and most important concerns would profit by it at all. This seems a conclusive reason why Congress -did not intend such a narrow construction. There is nothing in the language used or implied by Congress indicating that the exemption was intended by Congress to be so narrow and small in practical effect.
Therefore, the contention of the Government should be overruled and the protests sustained'.
No mention is made in what has been said concerning the involved and illogical argument in the majority opinion, attempting apparently to find an excuse to throw out these protests on the grounds of noncompliance with the regulations. It required no comment. This *123strange argument is not urged in the Government brief naturally enough. It would hardly have been good faith to have urged it after the colloquy between counsel quoted above, which dispensed with proof of the official papers showing how the oil in four of the protests came out of warehouse and into the holds of the vessels purchasing it for lubrication of their machinery.
Further, if the exemption is not to be construed away by limiting it to supplies purchased in advance of importation by vessels in the foreign trade, it must equally apply to supplies entered for consumption, if actually sold to such vessels, as well as to warehouse goods. The regulations could not limit the scope of the statute and there is nothing in the regulations that attempts to do so.
In conclusion, I agree with the statement in the importers’ brief to the following effect:
This question has already been decided favorably to the importers’ contentions in the case of Guy B. Barham Co. v. United States, T. D. 48733, wherein the same ultimate consignee and commodity were involved, and the same procedure was followed. This court held that the oil in that case, which the evidence disclosed was sold as ship’s stores to foreign vessels engaged in foreign trade, was exempt from the tax levied under section 601 (c) (4), by virtue of the» provisions of section 630.
The same witness testified in this case as in the cited case. The facts are “on all fours.”