DISSENTING OPINION
Garrett, Presiding Judge:I am of the opinion that the record here discloses that there are two classes of what is known as origanum oil, one being an oil produced from plants by distillation and usually referred to as natural origanum off, and the other a synthetic oil produced from a coal-tar derivative. Both classes have the same uses, the principal one of which appears to be as perfume for soap.
Concededly, natural origanum oil is duty free, being classifiable under paragraph 1731 of the Tariff Act of 1930. As I understand the decision of the court below, it held that the synthetic product was also classifiable under that paragraph and,. therefore, duty free. The majority here, however, hold that it is unnecessary to determine the dutiable status of the synthetic product, and with that I agree, although the protests make claims, in the alternative, under paragraph 1558, which had they been pressed might have rendered consideration of that paragraph proper had the record been such as to show the involved merchandise to be what I will designate as a straight synthetic product, meaning thereby a product produced wholly from a coal-tar derivative and not mixed or combined with a product produced otherwise, as, for example, a natural oil.
It would seem to be clear that in the case of protest 948193-G/4010, covering the shipment from Morocco, the collector did not regard the merchandise there involved as being either a natural origanum or a straight synthetic origanum oil, but treated it as a tariff entity distinct as such from either — that is, as a mixture or combination containing essential or distilled oil, or as a natural or synthetic odoriferous or aromatic substance. This appears from the collector’s memorandum accompanying the transmission of the papers to the trial court.
The collector’s memorandum in the case covered by protest 944578-G/1083 is not so clear upon this point, it stating that the merchandise was “classifiable as Oil of Origanum, a mixture of aromatic substances.” That appears to couple two distinct tariff entities together. If the merchandise was “Oil of Origanum,” whether *345natural or straight synthetic, it would, as I view it, be a different tariff entity from “a mixture of aromatic substances.”
However, in view of the manner in which the case was presented before us, I do not attribute any particular importance to the seeming-discrepancy, so noted.
The Government presented the case here, as I understand its brief taken together with the oral argument, solely on the theory that the merchandise was a mixture of the character provided form the third clause of paragraph 60, quoted in the majority opinion, while appellee contended that it was not such a mixture but was origanum oil entitled to free entry whether pure natural oil, or wholly synthetic oil.
As I understand the majority opinion, they do not undertake to determine whether the factual record shows the merchandise to have been what I refer to as a straight synthetic product, or to have been a mixture, but they hold upon the evidence, much of which is set forth, or fairly paraphrased, in the opinion, that while the importer may have made a prima jade showing sufficient to overcome the presumption of correctness of the collector’s classification, the testimony on behalf of the Government satisfactorily rebutted the importer’s prima jade case, and, since the burden was upon the importer, the collector’s classification was sustained.
I do not wish here to foreclose myself from considering with an open mind the question of the proper dutiable status of a product obtained from mixing or combining pure natural origanum oil and straight synthetic origanum oil, no other substances than those being •contained in such a mixture, should there be occasion to consider it, but upon the record in this case there is no occasion to consider it.
I confine myself in this dissent to the factual questions.
I deem it proper to say that, in my opinion, the evidence in this case establishes:
(1) That when the importer ordered the. oils here involved, it desired, ordered, and expected to receive, natural origanum oils — that is, oils derived solely from plants or herbs; (2) that it would not have accepted, as a fulfillment of the order, origanum oils synthetically produced, knowing them to be such, nor would it have accepted a product composed of a mixture or combination of natural and synthetic oils, knowing the product to be such, and (3) that it accepted the involved shipments, believing the oils to be in conformity with its order.
However, the intent, order, desire, and act of acceptance of the importer cannot be held determinative of the proper classification of the merchandise. The actual character of the merchandise must control.
I think it proper to say further that it would be unreasonable to suppose that orthocresol (which concededly is. not present in natural *346origanum oil) would Lave been purposely introduced into tbe imported oils, if tbey were, in fact, natural oils, because ortbocresol is an objectionable element.
Tbe record embraces tbe testimony of a witness by tbe name of Paul Pinel whose depositions (one in each case) were taken on behalf of tbe importer upon interrogatories propounded by counsel for tbe importer and cross-interrogatories propounded by counsel for tbe Government. Tbe depositions were taken in France in December, 1938, and tbey comprised tbe first evidence introduced on behalf of tbe importer. Tbe witness described himself as chief chemical engineer in tbe employ of Bertrand Freres, a corporation of France, located at Grasse, engaged in tbe manufacture and sale of essential oils, including origanum oil. Tbe qualifications of tbe witness were not called in question and bis various experiences need not be detailed. He bad bad extensive experience in tbe production of natural origanum oil. Some of bis testimony was in tbe nature of expert testimony, but that which I regard as of most importance here relates to bis claimed actual knowledge of tbe character of tbe merchandise here involved.
It may be said that tbe fifty drums of oil shipped from Spain were shipped by “Distilleries Adrian & Klein S. A. of Benicarlo, Spain,” and that from Morocco was shipped by “Société Marocaine d’Essences Aromatique S. a. r. 1. S. M. E. A., 11 rue d’Oran á Meknes, Morocco.”
Tbe witness claimed to have personal knowledge of both tbe Moroccan and tbe Spanish shipments.' He stated that be assisted in organizing tbe Moroccan company; that be was its technical adviser; that be went every year to Morocco to supervise the distillation of origanum oil; that be bad knowledge of tbe shipment in question, and be described the method by which tbe oil so shipped was produced. Tbe shipment was identified in direct interrogatory No. 15 in which be was asked if tbe company made the shipment, and answered affirmatively.
Tbe following then ensued:
(16) Please state whether you have knowledge of the production of the merchandise described in Direct Interrogatory No. 15? — A. I have complete knowledge of this production.
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(19) If the answer to Direct Interrogatory No. 16 is in the affirmative, please state whether or not in the production of the imported merchandise described in Direct Interrogatory No. 15 any ingredient is added, admixed, or compounded with the natural product? — A. No; no product is added, admixed, or compounded with essential oil which is exported just as it is received when discharged from the stills.
Tbe questions in tbe deposition, respecting tbe merchandise shipped from Spain, in general followed tbe order of those respecting tbe shipment from Morocco and tbe answers were, in effect, tbe same. Tbe witness did not state what connection, if any, be may have had with *347tbe Spanish company, but be did state tbat be was present wben the-oil embraced in tbe shipment was produced, and so obtained knowledge of it.
It seems to me tbat tbe testimony of this witness identified tbe involved merchandise and tbat it was unequivocally to tbe effect tbat it was natural origanum oil, obtained by distillation from plants, to which no other product bad been added.
I find nothing in tbe testimony given in answer to cross-interrogatories which tends to throw any doubt upon tbe direct testimony respecting either tbe identification of tbe particular merchandise involved or its nature as an unmixed natural origanum oil.
In both depositions tbe witness, in answer to cross-interrogatories, stated tbat be was not in any way financially interested in tbe result or outcome of tbe suits, and nothing appears of record which would justify a doubt as to bis credibility or veracity.
I give greater weight to tbe testimony of this witness than, apparently, is given it by tbe majority. He was tbe only witness in tbe case who bad knowledge of what tbe imported merchandise actually was from personal observation of it. Tbe testimony of tbe experts, both those called on behalf of tbe importer and those called on behalf of tbe Government, was, in tbe final analysis, opinion evidence based upon tests made of tbe oils after they bad been imported, and the opinions of tbe witnesses called by the Government were in conflict with tbe opinions of those called by tbe importer. Furthermore, tbe tests made by tbe experts of tbe respective parties were, respectively, upon different bases, or by different plans, and I am unable to say which basis or plan was tbe correct one to use. I may say, however, tbat tbe plan used by tbe experts for tbe importer seems to have been tbe standard.one usually applied in testing such oils, while tbat used by tbe experts for tbe Government was one originated by them and not commonly used. Tbe experts’ testimony (and, as of course, I do not reflect upon tbe veracity of any of them) might have been more helpful bad tbe tests made by them followed tbe same plan. At any rate, I am influenced more by tbe testimony of one who stated what tbe merchandise was as a result of bis observation of it in its making than I am by tbe opinion evidence.
For tbe reasons I have stated, I think tbe judgment of tbe trial court should be affirmed.