dissenting:
I must respectfully dissent from the decision of the majority affirming the action of the trial court which overruled appellant’s protest against the action of the collector in assessing the instant merchandise with a 90 per centum ad valorem duty under paragraph 1529 (a) of the Tariff Act of 1930.
The majority feel that our decision in Alfred Kohlberg, Inc. v. United States, 27 C. C. P. A. (Customs) 354, C. A. D. 111, is controlling of decision here. In my judgment, that case is not authority for holding that the instant mufflers are in part of fringes so as to throw the merchandise, for duty purposes, into the first part of paragraph 1529 (a).
In the Kohlberg case we had before us gloves having a lace cuff. The glove part and the lace part were produced in a continuous process of manufacture, and the lace therefore did .not exist prior to its appearance in the finished glove. The term there under consideration •was “articles wholly or in part thereof” [laces]. The same provision is involved here, except that we are concerned with “fringes” rather than with “laces.” In that case, it was the position of the Government that the phrase “wholly or in part thereof” necessarily required a holding that the gloves fell within the paragraph, irrespective of the fact that the lace had no previous existence. The importer contended that under the holding of this court in many cases, such as Cohn & Lewis v. United States, 25 C. C. P. A. (Customs) 220, T. D. 49335, and the so-called ladder tape cases referred tó therein, and many others, before the merchandise was drawn into the paragraph it must be shown that the lace had a prior existence and that it must have been of such character that, if imported by itself, it would have been dutiable at 90 per centum ad valorem.
At great length we pointed out in the Kohlberg case that wherever *122in tariff acts su.ch terms as “made in whole or in part of,” or “made or cut from,” or “manufactures of,” or “made of,” or “articles made therefrom,” or “manufactured wholly or in part of” were used, there must have been a previous existence of the article referred to, independent of its existence in the imported article. We there distinguished the cases involving such terms by pointing out that the provision confronting us there was “ articles * * * in part” of lace. We held that Congress, in using the phrase “articles * * * in part thereof,” did not intend to use it in the sense that the article in controversy had to have a prior existence, such as was true of the wool felt' hat bodies in the Cohn & Lewis case or of the ladder tapes in the cases in which those articles were under consideration.
The issue in the Kohlberg case and the issue here are on all fours, so far as the construction of the phrase “articles wholly or in part thereof” is concerned. It must be conceded that if there are fringes in these uncut bolts of mufflers, then the Kohlberg case is controlling. But there were no fringes in the articles when they were brought into this country, and there would not be any fringes at any time unless the user of the cloth wanted fringed mufflers after the importation arrived here. If there were a line showing that the cutting to form the fringes had to be in the middle of the space where there are no weft threads, and if it could not practicably be cut in any other manner, then the holding in the Kohlberg case might have some bearing on the decision of the instant issue. I respectfully submit, however, that the holding of the majority in the instant case unduly extends the doctrine announced in such cases as United States v. Buss & Co., 5 Ct. Cust. Appls. 110, T. D. 34138; United States v. M. H. Rogers, Inc., 18 C. C. P. A. (Customs) 271, T. D. 44448; and Oppenheimer et al. v. United States, 66 Fed. 52.
The law is well settled under those cases that if goods in the bolt are so made as to be capable of being cut in but one place to form an article, then the customs officials should regard the bolt of cloth as constituting those articles. This was the case with the coat hangers in the Buss & Co. case, the chair backs and seats in the Rogers case, and the veils in the Oppenheimer case. Under the holdings in those cases, the instant merchandise is mufflers and not bolts of woolen cloth. There is no dispute on that question. The majority, however, have applied the doctrine of those cases to the so-called fringed portion of the 'mufflers so as to throw the merchandise, for classification purposes, into the “fringes” paragraph at 90 per centum duty. This phase of the instant case was not present in the Kohlberg case or in any other case that I know of.
In the instant case there is nothing to indicate but that the so-called *123fringe threads (2% inches long) might be cut so as to make no fringe on one muffler and a long fringe on another, or short fringe on one and longer fringe on another. It is my position that the character of the mufflers with respect to fringes■ is not fixed with such certainty as was required in the ruR laid down in the Buss & Co. case, supra. There we said:
The rule expressed by the decisions just cited recognizes the fact that most small articles are not produced as individual or separate products of the loom, but for economy of manufacture are first woven “in the piece.” The rule of decision is therefore established that where such articles are imported in the piece and nothing remains to be done except to cut them apart they shall be treated for dutiable purposes as if already cut apart and assessed according to their individual character or identity. This follows, however, only in case the character or identity of the individual articles is fixed with, certainty and in case the woven piece in its entirety is not commercially capable of any other use. [Italics mine.]
I again repeat that there were no fringes in the article when imported. (There was lace in the gloves in the Kohlherg case.) After the instant merchandise arrived in this country, it could have been cut, without wasting any material (because there was no permanent marking in. the place where the weft threads were omitted showing where it was to be cut) so as to have made some complete mufflers without fringe and some with fringe. The fact that it was a “customary” practice to cut it in such a way as to have a fringe of some length on each end of each muffler does not change the situation. The levying of customs duties should not depend upon the whim or choice of the importer after the goods arrive. In order to apply the rule laid down in the foregoing cases, the importer must have no choice; whereas it does have a choice in the instant case.
In the Rogers case, supra, where the fabrics were dedicated to chair backs and seats, in the Oppenheimer case, where veils were involved, and in the Buss & Co. case, where the cloth coat hangers were involved, the instant question relating to prior existence was not present. In each of those cases, the imported goods were so manufactured that' they would have been practically valueless for any commercial use except as backs or seats, veils, and hangers, respectively, of a predetermined design. By their very nature their character or identity was fixed with such certainty that they were incapable “of any other use.” That is not true here. The so-called fringe threads might not he used to form fringe on some of the mufflers.
Of course the instant goods, under the rules laid down in the above cases, are mufflers, as claimed by the Government; but they are not mufflers in part of fringes.
I would reverse the judgment appealed from.