CONCuRRING OPINION
Bland, Judge:I concur in the conclusion reached by the majority in this case because it is obvious that the article could not be marked, and since the container was not marked, the additional duty was properly assessed. It is my view that if the article could have been marked, then the new language used by Congress in section 304 of the Tariff Act of 1930 requires that both container and article be marked, and that if either of them is not marked, the importer subjects himself to the additional duty. At any rate, regardless of whether the duty attaches if the container is not marked and the article is marked, 1 feel sure that Congress never intended to weaken the marking law to the extent that a marking of the container would release the importer from additional duty for failure to mark the article if it could be marked.
I find nothing in the context of the section or in the legislative history which justifies the statement in the majority opinion which reads “if either be marked, the additional duty does not apply.”
In Kraft Pheniz Cheese Corp. v. United States, 22 C.C.P.A. (Customs) 111, T.D. 47103, decided concurrently with this case, the three or four cheeses were marked and thecontainernotmarked. L’etussuppose that the container was marked and the cheese had not been marked. The majority is of the opinion that while the cheese would have to be marked in customs custody, no additional duty could be attached. If the article, cheese, could have been marked, I think Congress intended that the additional duties would attach if the importer, failed to mark it, since this is the article that goes to the consumer.
This view is not only sustained by the context of the provision but by the legislative history. While the legislative history shows that Congress intended to clarify this section in certain respects complained of by importers who appeared before the committees of Congress, I find nothing that justifies the conclusion that Congress ever intended to excuse the importer from having the article marked when it was *120imported, if it was capable of being marked. It is true that Congress took out of section 304 of the Tariff Act of 1922 considerable language including the phrase “at the time of its manufacture or production”, •and inserted certain other language chiefly directed to the duties of the Secretary of the Treasury with respect to determining when an article could or could not be marked. It seems clear that the changes made were not for the purpose of relieving the importer from paying .additional duty if he failed to mark the article but were for the purpose of not subjecting him to two additional duties, and for the .additional purpose of authorizing the Secretary of the Treasury to indicate a great many articles which did not need to be marked so that the importing public would know what to expect in this regard.