DISSENTING OPINION
Bland, Judge:I regret that I am unable to agree with the conclusion reached by the majority.
With reference to the applicability of the case of Alexander & Baldwin, Ltd. v. United States, 21 C. C. P. A. (Customs) 558, T. D. 46988, from which case the majority quotes, it is sufficient to say that there is nothing whatever in that case which would suggest the correctness of the conclusion of the majority in this case. Whole clams and clam juice were there involved, and the case turned upon a question wholly distinct from the questions involved in this case.
The majority opinion does not fully nor satisfactorily describe the merchandise involved here in particulars which are probably quite important. The opinion states “Although cut into pieces, cleaned, and cooked, according to the testimony of the importers it can be readily identified as parts of clams”. The mincer not only cut the clams into small pieces, but in cutting and mincing the same into small pieces, a portion thereof was disintegrated to such an extent as to leave numerous, very minute, irregular-shaped particles evidently not taken into consideration by the majority. Moreover, the above statement may intend to convey the impression that from the appearance of the clam product at bar it may be said that the identity of the individual clams has not been destroyed, which is an important consideration according to certain decisions hereinafter referred to. Not only has the identity of the individual clams been destroyed by the mincing process, but it seems to me that it would be very difficult for anyone to determine, from a mere examination, whether the importation was even a clam product. It does have a very slight pinkish tint which is one of the characteristics of some clams. This also may be a characteristic of other shellfish meat. The juice, containing small crushed portions of the meat, is milky— so is the juice of oysters. The clam product at bar may have the flavor or odor of a clam. Surely it is not the intent of the majority *471to suggest tbat the identity of an article is destroyed only when it has been so far processed that no one can determine what it has been. If this were true, it would be quite difficult to destroy the identity of some products such as peppers, onions, garlic, etc.
I again quote from the majority opinion:
* * * It will be observed that this language is not restricted to clams in their raw or natural state, nor is it restricted to entire clams. It includes any clams in any condition, so long as they are clams. “Where a dutiable provision names an article without terms of limitation all forms of the article are thereby included unless a contrary legislative intent otherwise appears. ”
Of course, to be clams, the identity of the clam in the can would have to be preserved. An examination of the decided cases on this-subject discloses that in most instances cases similar to the one at bar have turned upon the proposition as to whether or not the-identity of the prepared article had been lost.
In Neuman & Schwiers Co. et al. v. United States, 4 Ct. Cust. Appls. 64, T. D. 33310, the identity of the ham involved was not destroyed and its name and character were not changed by the process-which involved cooking and the removal of the bone. The shape of the canned ham is referred to in the opinion.
In Brown & Co. v. United States, 6 Ct. Cust. Appls. 415, T. D. 35977, soya beans, cooked and canned, but which had not been so-processed as to “prevent their identification as soya beans” were held to be soya beans, and not beans, prepared or preserved. There-the court had before it the whole bean. It was still a soya bean, cooked. In the instant case no one can identify a clam in any quantity of the imported merchandise. It is possible that one thoroughly familiar with canned clams could ascertain that the major portion of the canned material was made out of certain parts of clams, but. no one contends that the clam, as such, can be identified.
No decided case called to our attention involved facts precisely on all fours with the facts in the case at bar, but certain of such cases-are sufficiently identical in all respects to the instant case as to suggest, I think, the proper conclusion to be reached here.
In United States v. Sheldon & Co., 14 Ct. Cust. Appls. 228, T. D. 41708, this court held roasted and salted pistache nuts to be dutiable-as edible nuts, prepared or preserved, rather than under the designation “pistache nuts.” The majority in the instant case seeks to distinguish that case from the case at bar by calling attention to the-fact that the term “not specially provided for”, and other similar terms, were used in the statute involved in the Sheldon & Go. case and that this situation compelled the court to the conclusion it reached. Howevér this may be, I find the following in the opinion:
The pistache nuts involved herein have been salted and roasted, and as they are either prepared or preserved or both, and as they in such condition are not. specially provided for elsewhere, they are therefore provided for in paragraph 759.
*472If tbe consideration suggested by the majority was tbe controlbng one in that case, and if tbe ruling in that case is to be regarded as applicable to tbe case at bar, tben tbe term “not specially provided for” in paragraph 1761 should not be overlooked. Tbe views of both the majority and tbe minority in tbe pistache nut case are counter to those of tbe majority in this case. If it bad been held in that case that tbe salted, roasted pistache nuts were “pistache nuts”, it would have been on account of tbe fact that tbe whole nut, shell and all, was under consideration, and tbe identity of tbe pistache nut bad not been destroyed (see dissenting opinion).
In United States v. La Manna, Azema & Farnan et al., 14 Ct. Cust. Appls. 123, T. D. 41647, tbe competing provisions were “onions, 1 cent per pound; * * *” and “vegetables * * * prepared or preserved * * *.” Tbe small onions which bad been peeled, were placed in sealed bottles containing white vinegar. One of tbe reasons wbicbbrougbt tbe court to tbe conclusion that tbe importation was not “onions” was tbe fact that prior to tbe act there under consideration, onions bad been made dutiable by tbe bushel, and that in tbe Summary of Tariff Information it was shown that the change from tbe bushel to tbe pound in tbe Tariff Act of 1922 was with relation to tbe same kind of articles as bad been dutiable by tbe bushel in prior acts. Tbe mere fact that onions were provided for by tbe pound in tbe Tariff Act of 1922, if tbe bushel provision in prior acts bad been left out of consideration, would not have been controlling of our decision there. (See Neuman & Sehwiers Co. et al. v. United States, supra, where bams were dutiable by tbe pound.) Tbe decision also rested upon another ground, which is not referred to by tbe majority, which ground is quite pertinent to a consideration of tbe case at bar. We there discussed certain authorities and said:
In the case at bar, the merchandise is more than onions in one sense and less than onions in another. It is a new article of commerce made from onions which have been peeled, cut, and soaked in a pickling solution.
Probably tbe nearest case to tbe one at bar which has been called to our attention is Stone & Co. v. United States, 7 Ct. Cust. Appls. 173, T. D. 36492, which involved currants crushed and ground. These were held to be fruits prepared in any manner, upon tbe theory that the importation bad “completely lost its identity as currants” and that it was a material prepared or made from currants, and that its ■general and more diversified uses as currants bad been destroyed or limited. In tbe instant case it is obvious (although tbe majority ■states otherwise) that the use of tbe clams from which tbe importation was produced has been very much limited by the processes they have undergone. It is common knowledge that people eat fried clams and clams on tbe half-shell. Tbe product at bar could not be so utilized. In tbe instant case it is suggested that tbe contents of tbe *473cans are all dams. In the currant case the cans contained, in the-same sense, all currants. The clams at bar would be “all clams”, in the same sense, if they had been completely ground.
The majority cites United States v. General Hide & Skin Corp., 11 Ct. Cust. Appls. 78, T. D. 38731, involving rabbit meat which had been, cooked and canned, and it was there held that the importation was “game” rather than “meats * * * prepared or preserved”. It is sufficient to point out the inapplicability of that case by calling-attention to the fact that it was not there held that the importation consisted of rabbits. That case turned on the special meaning to be given the term “game”. No such question about the meaning of' the word “clams” is here involved.
In the opinion of the majority in the instant case we find the following, which, in my judgment, should be limited so as not to convey the-impression which it clearly does, in view of the particular merchandise-at bar:
The clear weight of the authorities on the subject is that an eo nomine statutory-designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article * * *.
It may be said that there are pastes made by adding water to. powdered vegetable matter. Everything in such a paste, except the-water, came from the vegetable, and all the vegetable went in it, and yet we would not hold it to be dutiable as such vegetable eo nomine provided for, if there were a provision for vegetables prepared or preserved. It is true that the eo nomine provision for an article-will ordinarily include all forms of that article, if it still remains that • particular article, but if its identity has been destroyed, and if by processing it has become a new article, it of course cannot be included in the eo nomine provision.
The legislative history in this case suggests that the majority has-arrived at an erroneous conclusion. A portion of the legislative-history is referred to in the majority opinion but, in my judgment,, the most significant phase of the same has been omitted. Parties-representing the clam industry, chiefly in the Northwest, appeared, before the Committee on Ways and Means of the House of Representatives, which prepared the provisions under consideration, and asked. for a tariff on canned clams and products thereof, and they particularly pointed out that they did not ask for any duty on other shellfish except “clams and their products”. The notes made on the committee print of the bill show that the articles provided for in paragraph 721 (b) had been taken from the free list provision (shellfish, etc.). It is obvious that the industry involved wanted to take out of the free-list shellfish provision clams and clam products. Congress did not-grant it that request but provided for clams and clam juice, and left-clam products on the free list.
*474It seems to me that the decision of the majority will make the application of provisions for prepared and preserved articles, such as vegetables, fish, provisions, etc., a very difficult one in the future. Ordinarily, in tariff schedules relating to food products, provision is made for an article eo nomine and the eo nomine provision may be followed by words describing its condition, and then a “prepared or preserved” provision is made to broadly include such article when, on account of processing, it is removed from the eo nomine status. For some reason Congress did not follow this precedent in relation to clams, and to a number of other articles found in the tariff act, and it is concerning the latter that I now wish to draw attention.
Paragraph 746, Tariff Act of 1930, provides for mangoes at 15 cents per pound. Let us suppose.that mangoes have been peeled, cut up into particles, cooked and canned. Under the decision of the majority, they would be dutiable under the eo nomine provision for mangoes if anyone could tell that the product in the can was made from mangoes, notwithstanding the fact that Congress, in paragraph 752, made dutiable at 35 per centum ad valorem fruits, when prepared or preserved. The same situation would pervail as to avocado pears and possibly a great many other articles on the dutiable list.
Let us also examine the free list. We find there “bananas and plantains, green or ripe.” It is well known that plantains, which resemble bananas, are sometimes cooked while in a somewhat green state. Under the decision of the majority, the fruit plantain, if sliced, canned and cooked, and imported into this country, would not bear a rate of duty of 35 per centum ad valorem as fruits, prepared or preserved (and thus encourage the canning industry of this country), but would be relegated to the free fist. The free list also contains provision without limitation for brazilian or pichurim beans (par. 1635); tagua nuts (par. 1778); tamarinds (par. 1779); and locust or carib beans, and pods and seeds thereof (par. 1782). It is our fear that the holding of the majority may lead us far afield in the classifi■cation of articles which are provided for in language like that employed in the instances suggested.
The majority opinion points out the incongruity of Congress intending the merchandise at bar being free of duty if it intended to protect the clam industry. If Congress had intended to include clam products in the dutiable paragraph, it could easily have done so by the use of appropriate language, and the fact that full protection may not be given to the clam industry as suggested, should not be a •controlling consideration in this case. If the legislative history is suggestive of what Congress intended, it comes nearer suggesting the intent to leave clam products on the free list than it does to include them under the eo nomine provision for clams. The fact that the •clam industry in this country would have no protection on its clam *475products is not a matter' with which we can concern ourselves. This is a matter strictly within the prerogatives of the legislative branch of our Government, and it may have had good reasons, and reasons wholly consistent with the tariff act as a whole, for leaving clam products on the free list.
Let us suppose that the tariff provision before us was as follows:
721. (b) Clams, 10 per centum ad valorem; * * * shellfish, prepared or preserved, not specially provided for, 35 per centum ad valorem.
Is it conceivable that under such a provision the very much processed clam product at bar would not be held dutiable as shellfish, prepared, especially in view of the legislative history above suggested?
I do not mean to suggest that it is my view that clams which have been cooked and washed and salted, without destroying the identity of the individual clams, would not be dutiable under said paragraph 721(b). On the contrary, it is my view that they would be so dutiable, but in the case at bar the processing of the clams completely ■destroyed their identity, and to bring the product before us under said paragraph we would be compelled to read into it the words “prepared or preserved” which Congress presumably intentionally omitted therefrom, but did provide for with respect to shellfish under paragraph 1761.
On account of the above considerations, I am of the opinion that the protest of the importer should have been sustained and the judgment of the trial court should be reversed.
Lenroot, J., concurs in the above dissent.