dissenting.
I agree with the dissenting opinion of Chief Judge Oliver of the United States Customs Court which is as follows:
I am' constrained to dissent from the position taken herein by my colleagues
I do not accept the theory of classifying this merchandise which the majority opinion develops according to an “objective” standard of use, as opposed to a ■“subjective” dedication to use. The reasoning is novel, and I find no rule of construction in support thereof. The fundamental tariff principle, applicable herein, is that the classification of imported merchandise is controlled by its condition at the time of importation. United States v. Citroen, 223 U. S. 407; Dwight v. Merritt, 140 U. S. 213.
The record herein is conclusive to the effect that the marble in question was •ordered according to specifications, in certain predetermined sizes, for a definite ■use as wainscotting in a particular building; that, at the time of importation, each piece had anchor holes drilled at the top and was appropriately numbered, identifying it for installation as wainscotting in such a manner that the “veining of the marble” would match; and that all of the merchandise was actually used, according to the specifications therefor, for the particular purpose for which it was ordered. That this merchandise might be, or could be, used for some other purpose is mere conjecture, and, therefore, wholly immaterial toward a proper disposition of the issue herein. A possible use of this merchandise has no bearing on its tariff classification.
Plaintiffs’ uncontradicted testimony establishes that the merchandise, as imported, was more than slabs, and that it was in, fact, [sic] marble wainscotting, advanced to such condition as to bring it within the provisions of paragraph 232 (d) of the Tariff Act of 1930, as modified by T. D. 51802, as classified by the collector.
The protest should be overruled and the decision of the collector affirmed.
Chief Judge Oliver’s dissent is clearly supported by the following testimony of Mr. Moreno Tedeschi, set out below, given in behalf of the importer.
Q. Would you mind telling us what came in under that invoice in the 21 cases?
A. In the 21 cases came in marble wainscott.
Q. What thickness?
A. Ys inch thickness.
Q. And in what shape was the merchandise?
A. Cut up in slabs.
* * * * * * *
Chief Judge Oliver: The slabs referred to on that invoice in the condition in which they were imported, were they cut to blueprint specification short and long and a certain number of pieces, to fit a certain specified blueprint?
The Witness: Yes, they are cut to blueprint specifications, but they never actually fit actual conditions of the building.
*175Q. Where did you obtain your measurements that you used for your order?
A. At the church, at the building.
Q. Did you measure the building?
A. Yes.
Q. Did you measure the building to give the exact size of the slabs?
A. Yes, but they never comply for some reason or other.
Q. For this particular job, you stated that you drew up the measurements for the order of the slabs that you imported in this particular invoice?
A. Yes.
% * % * *
Q. Can you tell the court just what had to be done after importation to place these slabs into the wall as a wainscotting?
A. You start with the base, and 90 out of 100 the floor is out of level, and so you have—
Chief Judge Oliver: When you got there, the floor was not level?
The Witness: That is right.
Chief Judge Oliver: Then you do what; you cut the marble to fit the floor ?
The Witness: Yes, and to bring it up to level. On top of that base, we put the slabs, 3 feet, or a foot and 6 inches, whatever is called for, put them on top of that base. When we get to the corner, then we have to fit and cut them.
*******
Q. Can you use the holes on the top edge as such in the condition as imported?
A. No, they are never deep enough. They are never adjusted to the conditions on the wall.
Q. In placing these slabs, the 5J4 inch slabs to the wall, did you have to do any cutting on this job?
A. Yes.
Q. What sort of cutting?
A. It is a fitting cutting. It is a cutting that is done because the building may not be perfect as far as the length of the wall is concerned. The marble setter is human and he may leave more joints than he is supposed to, and when we get at the end of the corner, where we are supposed to turn around, that slab must be cut and fitted.
XQ. You say you ordered these according to specification?
A. That is right.
XQ. You yourself did?
A. That is right.
XQ. And were they ordered for this particular job?
A. Yes.
XQ. And the order designating the number of pieces and the size, that is the length, width and thickness, was in accordance with this specific job?
A. That is right.
XQ. Were these pieces used exclusively on this particular job?
A. Yes.
XQ. Were these pieces numbered?
A. Yes.
*176XQ. And what is the object in having them numbered?
A. The object is just to follow up the veto of the marble.
XQ. So they were intended to be fit into a specific place in your plan?
A. They are intended, when the job is finished, to be a pleasing looking, job, so all the veining of the marble is supposed to match.
The majority opinion states the issue here involved as follows:
* * * Therefore, the issue is simply whether, at the time of importation, it had been sufficiently advanced in condition as to be partly manufactured into wainscot-ting. * * *
The above-quoted testimony shows clearly that the merchandise was “marble wainscott”; that the order designating the number of pieces and the size, that is the length, width and thickness, was in accordance with this specific job; that the specifications were obtained by measuring the building in order to get the exact size of the marble pieces needed and that the marble was cut to the blueprint specifications, short and long, into a specified number of pieces, to fit the specified blueprint; that the cutting which was required was “a fitting cutting” that was “done because the building may not be perfect as far as the length of the wall is concerned,” and because the “marble setter is human and he may leave more joints than he is supposed to.” Also, each piece of the merchandise was highly polished on one side and holes were drilled into one edge of each piece to be used with anchors, or clamps, or fastening devices to hold the pieces to the wall.
The testimony further clearly shows that each piece of the wainscot-ting was numbered so as to identify its exact place in the wainscotting pattern.
The testimony also shows that the importer generally imports 10 per cent more material than is needed and in the instant case ordered 10 per cent more than was needed. This is apparently done so as to provide sufficient material to take care of the uneven floors and the joints which the witness testified the marble setter may leave and to take care of any breakage. The fact that the excess marble was left at the building so that “in case there is some damage later, they have the marble to use it,” indicates that it is wainscotting for this particular job and not valuable to the importer for any other purpose.
The cited case of Thompson-Starrett Co. v. United States, 12 Ct. Cust. Appls. 37, T. D. 39979, is distinguishable from the case at bar. In that case the tiles in question were stock tiles, and they were not cut to particular dimensions, nor did they have a specific use as a whole instead of separately.
Also distinguishable is the cited case of United States v. McBride Studios, 14 Ct. Cust. Appls. 321, T. D. 41956. In that case tile was imported for the purpose of replacing damaged tile in a floor. In the case at bar the pieces of marble were designed for the construction of a particular entire wainscotting and were numbered for use in accord *177with that design and when assembled made an entirety; an article ready for use, to wit: a wainscotting.
The cases of Kronfeld, Saunders & Co. v. United States, T. D. 26366, 9 Treas. Dec. 849, and U. Luisi & Co. v. United States, T. D. 49180, 72 Treas. Dec. 362, are in point here and present, I feel, correct applications of the law. In the Kronjeld, Saunders & Co. case it was held that pieces of marble, cut to size and rubbed and polished, which were ordered and designed for, and which when fitted together constituted a particular floor upon which a baptismal font was to be erected, were in fact an entirety, and as such not dutiable as marble slabs or tile (Tariff Act of 1897), but properly dutiable as marble manufactured into articles.
In the U. Luisi & Co. case the court stated:
With respect to the inlaid units it is not disputed that as imported the entire quantity was intended to be used as a border around the sanctuary wainscoting of a church in Cleveland. There does not seem to be any question but that the various pieces constituting the border were designed, cut, and assembled with the purpose of being used as a border for the particular sanctuary for which they were ordered and later installed.
The court held the border to be a complete article in knocked-down condition and that it was properly classifiable for duty purposes under the provision in paragraph 232 (d) of the Tariff Act of 1930 for articles of which the component material of chief value is marble.
I do not find evidence to support the conclusion of the majority that the imported merchandise has “general utility.” It is of no consequence that the imported pieces of wainscotting “could have been” or “might have been” used for some other purpose. There are very few, if any, articles that “could” not or “might ” not be used for-more than one purpose.
The recent case of Atlas Export Co., F. L. Kraemer & Co. v. United States, 43 C. C. P. A. (Customs) 122, C. A. D. 618, is in point here. In that case the merchandise was described as “certain square and circular pieces of onyx that are polished on one flat side and on all the edges. All of the pieces in question are approximately seven-eighths of 1 inch in thickness, and either 3%, 6 or 8 inches square, or 5, 6, or 8 inches in diameter. Each piece has a hole drilled in the center.” The merchandise was assessed with duty under the provisions of paragraph 232 (d) of the Tariff Act of 1930.
In affirming the decision of the Customs Court we unanimously held that it was not essential that the imported merchandise be dedicated to the manufacture of any specific article or class of articles to be “partly manufactured” for tariff purposes, but that it was sufficient that it shall have been processed to a point where it has a distinctive character different from that possessed by the original material.
It is clear that the merchandise here involved does not meet our definition of a “slab” as set out in our recent decision in the Atlas *178case, supra. It is also clear that the involved merchandise has been “processed or manipulated” and that for tariff purposes it is at least partly manufactured.
The majority appears to rely on the case of Worthington v. Robbins, 139 U. S. 337 (1891). That case was decided in 1891 under wholly different tariff laws and under a state of facts wholly different from the facts in the case at bar.
In the Worthington case a product known and described in the trade as “white hard enamel” was correctly held not to be “watch materials” not specially enumerated or provided for in the then pertinent tariff law.
In that case it was agreed “that the merchandise is and was in 1883 known and described in trade as ‘white hard enamel’; that it is used for various purposes, including the making of faces or surfaces of watch dials, scale columns of thermometers, faces or surfaces of steam-gauge dials, and for other purposes when a smooth or enamelled surface is desired”; that “the form or condition of this merchandise, as imported, affords no evidence or indication of the use to which it is to be applied”; that the merchandise involved “in the form or condition as imported, cannot be used for any of the purposes above described, nor for any purposes whatever of practical use to which it is adapted or ever applied; that before it can be applied to any practical use its present form and condition must be changed by grinding or pulverizing, and new processes of manufacture applied.”
In that case the court stated:
* * * In order to be dutiable as “watch materials,” the article, when imported, must be in such form of manufacture as to show its adaptation to the making of watches.
* * * In order to be “watch materials,” the article must in itself bear marks of its special adaptation for use in making watches. * * *
The Worthington case supports this dissent.
The uncontradicted testimony as above set out shows the imported merchandise was specially ordered for wainscotting, for a particular job, according to the importer’s specification; that it was cut to size according to the blueprint furnished by the importer; that each piece was numbered so as to fit into its proper place in the wainscotting; that two holes were drilled in each piece for the purpose of clamping it to the wall and that the merchandise was ordered for the single purpose of being used as wainscotting in a particular building and that it was so used. It is abundantly clear that the instant merchandise is in such form of manufacture as to show its adaptation to use as wainscotting.
For the foregoing reasons, I am of the opinion that the judgment of the Customs Court should be reversed.