CONCURRING OPINION
Cline, Judge:I agree with the majority in this case in holding that the merchandise in question is dutiable at 30 per centum ad valorem under paragraph 733 of the Tariff Act of 1930, but I am of opinion that the decision should be based upon a different premise than that suggested in the court’s opinion. In the case of F. W. Meyers & Co. v. United States, T. D. 40746, 47 Treas. Dec. 306, the court held dog biscuits to be dutiable under paragraph 733 of the Tariff Act of 1922, but the court seems to have questioned the applicability of the provision for “biscuits” and relied principally upon the provision for “similar baked articles.” The court said:
It will be noted that in the paragraph last above cited the term “similar baked articles” was used and the language “by whatever name known” which gives to this paragraph a broad application. ' So we say if the importation involved in this case can not be held to be biscuits, cake, or cakes, it certainly is included within the term “similar baked articles,” and the language “by whatever name known” would warrant us in so far deviating from the described articles of the statute as to be able to include fox biscuit or dog biscuit.
*314If we start with the premise that dog biscuits are “similar baked articles” it would seem to be incorrect to hold that meals made from dog biscuits are still “similar baked articles.”
I am of opinion that the reasoning of the court in H. Colthoff v. United States, 17 C. C. P. A. 388, T. D. 43832, is applicable to the merchandise herein involved. In that case the imported commodity consisted of so-called “Holland rusks.” Originally the material of the articles in that case was baked in iron molds after which the baked articles were split into two parts and the cut sides of the parts were toasted or roasted. The court held that the imported articles had passed beyond the condition of the baked articles provided for in paragraph 733 of the Tariff Act of 1922 but that they were dutiable under the same provision by similitude. The court said:
We think the merchandise at bar, when it came out of the mold and before it was further treated, responded to the provisions of paragraph 733, but that by subsequent processing it became a new and different article with a new name a new use, and new characteristics. In this condition it might be said to respond to paragraph 1459, for nonenumerated manufactured articles, and dutiable at 20 per centum, which would be in harmony with the views expressed by this court in United States v. Hermanos & Co., Sucrs., 9 Ct. Cust. Appls. 66, T. D. 37941.
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* * * So in this case as in the Hermanos & Co. case, supra, we conclude that the merchandise at bar is not, in its imported condition, any of the articles provided for in paragraph 733. Whatever the merchandise was when it came out of the oven the first time, it was later subjected to such processing as to have changed its characteristics and produced it into an article manufactured in whole or in part. See also United States v. Dunlop & Ward, supra, and United States v. Menzel & Co., 9 Ct. Cust. Appls. 16, T. D. 37844.
Before resorting to the nonenumerated paragraph, however, we must look into the question of the applicability of the similitude paragraph, 1460, the pertinent portion of which reads as follows:
Par. 1460. That each and every imported article, not enumerated in this Act, which is similar, either in material, quality, texture, or the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned; * * *.
Even if the merchandise at bar is a nonenumerated manufactured article and provided for in paragraph 1459, it is not dutiable thereunder, and, under the express provisions of the above-quoted statute, is dutiable elsewhere, if it is similar either in material, quality, texture, or the use to which it may be applied to any article enumerated in the act, chargeable with duty. Ringk & Co. v. United States, 13 Ct. Cust. Appls. 126, T. D. 40960.
We have hereinbefore concluded that the merchandise at bar was, prior to processing, provided for in paragraph 733, but that after processing it was not. The provision in paragraph 1460 does not require the merchandise to be identical but similar, either in material, quality, texture, or the use to which it may be applied. The question at once presents itself: Are the split, baked articles at bar similar either in material, quality, texture, or use to the articles named in paragraph 733? That there is such a difference existing between the merchandise at bar and the articles mentioned in paragraph 733 as to prevent classification thereunder directly, *315could be no justification for the conclusion that there may not be a similarity in the particulars provided for in paragraph 1460;
We think there is such a substantial similarity in material, quality, texture, and use, sufficient to bring the merchandise within the dutiable provisions of paragraph 733. * * * [Italics quoted.]
The similitude provisions were not applicable in the cases of G. W. Sheldon & Co. v. United States, 28 Treas. Dec. 117, Abstract 37248, and H. A. Robinson & Co. v. United States, 30 Treas. Dec. 107, Abstract 39138, wherein the classification of ground dog biscuits was considered, because the question in those cases was whether the merchandise should be classified under a provision in the free list. The similitude clause operates to invoke the dutiable provisions only.
The record shows that the dog biscuit meals in this case consist of the same materials as the dog biscuits from which they were ground and that they are used for the same purpose as dog biscuits. I am of opinion that, although the merchandise was not baked in the condition as imported and is therefore not a baked article, there is a substantial similitude to dog biscuits, which have been held to be dutiable as baked articles, and that the commodity is dutiable by similitude under paragraph 733 of the Tariff Act of 1930. Accordingly, the protests should be overruled.