*54SUPPLEMENTAL OPINION ON PETITION EOR REHEARING
JUNE 26, 1944
Bland, Judge:On the 22d day of May 1944, this court harded down its opinion in the above-entitled cause, affirming the judgment of the trial court overruling appellant’s protest.
Appellant, in a petition for rehearing, has called our attention to what it regards as a material misstatement of fact. In order that we may more fully explain the situation with respect to said alleged misstatement of fact and one other statement which is criticized by appellant, and for this purpose only, the petition is granted.
In our former decision we stated the following:
The importer here contends that the law does not require, as a condition precedent to obtaining a right granted under a remedial statute, that it do a vain and idle thing; that during the time when segregation could have been made under the statute, the said Bureau of Customs instruction was in full force and effect and the collector, if segregation had been requested, would have refused segregation upon the theory that the so-called wiping rags contained no paper stock within the meaning of that term in paragraph * * * [Italics added here.]
It is the above-quoted italicized portion to which appellant takes exception, contending that it has never argued that its right to segregation would have been refused, hut that regardless of this fact, owing to the instruction of the Bureau of Customs, no relief in the premises would have been afforded.
While there is no contention here that appellant would have been refused segregation, we can see no more reason for the collector to refuse segregation than for him to refuse the remedy here sought by appellant if segregation had been requested, performed, and, while in customs custody, the correct amount of dutiable and nondutiable merchandise ascertained. Appellant’s petition is therefore without merit.- Whether it is argued that segregation would have been refused because it had already been determined that there was nothing segregable in the shipment, or whether it is argued that the remedy would not be applied for the same reason would all seem to amount to the same thing.
It is perhaps trite to say that in customs jurisprudence it is elementary and fundamental that an importer, to obtain relief in a case of this character, must, prior to protest, comply with the prerequisite statutory requirements, and that proof of the quantity o£ dutiable and nondutiable merchandise in segregation cases is of no avail when made upon facts ascertained outside of the jurisdiction of customs officials and when the mandate of the statute with respect thereto has been ignored.
Appellant knew, or was chargeable with knowledge, that it had the right, under the statute and under the instruction of the Commissioner of Customs, to segregate the goods under customs supervision, and *55that if it was there determined that a certain portion of the same was nondutiable and the collector erroneously assessed that portion as dutiable, it would have the right to protest and obtain its rights. Appellant did not ask for segregation, which it had the right to do. Its protest was filed without complying with the statutory prerequisite. Its proof made concerning segregation outside of customs supervision, under such circumstances as are qt bar, was of no avail, as was held by the trial court.
Embraced in appellant’s second complaint in its petition for rehearing is the question relating to the court’s statement that “there was no reasonable certainty that the collector would have failed to follow the statute but would have complied with that portion of the instructions which was clearly null and void.” On this subject, it is sufficient to say that in the case of United States v. S. Schapiro & Sons, 24 C. C. P. A. (Customs) 343, T. D. 48771, the portion of the regulation of the Bureau of Customs which this court held to be without warrant of law and of no effect was that portion which sought to classify the merchandise before it was imported, and was embraced in the statement that “Japanese wipers contain no mingled quantities of paper stock segregable under section 508 of the tariff act of 1930.” From the instruction itself, it appears that, notwithstanding this'statement, provision was made for segregation if requested by the importer, and the following quoted language covers the subject:
* * *. If an importer requests permission to segregate any importation of cotton rags under the provisions of section 508 of the Tariff Act, he should be granted the privilege in accordance with the procedure set forth in Circular Letter No. 896, but no segregated rags shall be classified otherwise than under paragraph 922 unless the segregation is completed' at the importer’s expense within ten days from the date of entry, as provided in section 508 of the Tariff Act and Circular Letter No. 896, and the examiner is satisfied that the segregated portion of the merchandise consists of rags of a kind not ordinarily found in shipments of “Japanese wipers” and, further, of a kind which is chiefly used in the United States for paper making.
It is thus seen that although the Treasury Department had, without warrant of law, by the use of the above-quoted language, declared that Japanese wipers contained no nondutiable rags, the collector, notwithstanding this fact, if the rags had been segregated and the examiner was satisfied that a segregated portion of the merchandise consisted of paper stock, was privileged under the instruction to grant relief. The court at no time, by the use of the language complained of, intended to say or did say that the collector was privileged to ignore the instructions of the Secretary of the Treasury relative to the execution and administration of the revenue' laws.
With the above correction of the statement of facts relating to appellant’s contentions, we adhere to our former decision.