with whom Klekpateick, J. joins dissenting.
I am unable to see any material difference, so far as classification is concerned, between the instant merchandise and that involved in Mutual Lamp Mfg. Co. v. United States, 21 CCPA 231, T.D. 46762. There, as here, the merchandise comprised round and rectangular pieces polished on one face, and in each case the pieces were ordered in specific sizes with particular purposes in view. The fact that the comers are rounded in the instant merchandise is not material since the testimony indicates that such rounding is necessary in pieces of the size here involved in order to prevent chipping.
The Customs Court held Mutual to be in point here, the importer concurs in that conclusion, and the Government’s brief states that the issue in that case “was the same as that involved in the instant protest.”
While the Government contends Mutual was overruled by Atlas Export Co. et al. v. United States, 43 CCPA 122, C.A.D. 618, I do not find that to be the case. The marble pieces in Atlas had holes drilled through them, while no such holes are in the instant merchandise or that in Mutual. While the Atlas opinion contains language which, read out of context, might suggest that the presence of the hole was not controlling as to classification, the opinion actually contains the following categorical statement with resp'ect to the Mutual case:
It has been conceded by the parties hereto that except for the hole drilled in the center of each piece, the merchandise in this case is substantially similar to that before this court in Mutual Lamp Mfg. Co. v. United States, 21 C.C.P.A. (Customs) 231, T.D. 46762. In the Mutual Lamp case, this court ruled that square and disk-shaped pieces of onyx, polished on one face and the edges, were dutiable as “slabs” of onyx under paragraph 232(b), supra. Thus, the only question here is whether the drilling of the hole in the center of each piece of onyx requires it to he classified under paragraph 282(d) rather than under paragraph 232(b). (Emphasis added.)
In view of the above statement, it seems too clear for argument that there was no intention in Atlas of overruling the Mutual decision but, on the contrary, that the presence or absence of the hole was considered controlling. No holes are present in the instant merchandise and, accordingly, the Mutual decision should govern.
While the testimony indicates that 90 percent of the imported merchandise is sold to furniture manufacturers it is not shown that such manufacturers actually use all of what they buy in tables. There is evidence that the imported slabs may be used in other articles of fur*55niture such as pullman tops, bench tops and shelves. Moreover, the fact that all the merchandise of one importer is used for a particular purpose does not necessarily establish dedication to that use. The articles themselves bear marks of their special adaptation. Worthington v. Robbins, 138 U.S. 337.
The exact point at which a slab is so modified as to become a wholly or partly manufactured article is a matter which must be determined by the conditions of the article as imported and the circumstances of the particular case involved. In Mutual we decided that articles which are concededly the same in all material respects as those here were not such articles but were properly classifiable as slabs. The Atlas decision did not modify that holding and there is no new evidence here which would support a ruling that it was in¡correct. Under the doctrine of stare decisis, therefore, it should be adhered to. R. J. Saunders & Co., Inc. v. United States, 45 CCPA 87, C.A.D. 678; and United States v. Charles H. Demarest, Inc., 45 CCPA 109, C.A.D. 682, and cases there cited.
Since the majority opinion is contrary to that in the Mutual case, it would appear that the Mutual decision should be expressly overruled.
For the reasons given above and for those set forth in the judgment appealed from, I would affirm.