concurring.
In my view, the issue in this case turns primarily on whether the importer has failed to show by substantial evidence that the collector’s classification was erroneous. I believe he has failed to meet his burden of proof and so concur in the result reached by the majority.
It is well settled that the burden is on the protestant to show by substantial evidence that (1) the collector’s classification was erroneous, and (2) the asserted classification of the merchandise in issue is proper, e.g., Novelty Import Co. v. United States, 53 CCPA 28, C.A.D. 872 (1966); Brown Boveri Corp. v. United States, 53 CCPA 19, C.A.D. 870 (1966); Edward Hyman Co. v. United States, 52 CCPA 51, C.A.D. 857 (1965); and United States v. Clayton Chemical & Packaging Go., 52 CCPA 111, C.A.D. 867 (1965). Moreover, it is quite clear that the classification of the merchandise by the collector carries with it a presumption of correctness, e.g., Howland v. United States, 53 CCPA 62, C.A.D. 878 (1966) ; Gallagher & Ascher Co. v. United States, 52 CCPA 11, C.A.D. 849 (1964).
Our review of the issue of law thus raised requires us to determine whether, as a matter of law, appellant sustained this burden of proof.
The evidence in the record below consists of a stipulation of fact and two exhibits, illustrating the anamorphic lenses when used with a camera and with a projector, respectively. The pertinent portions of the stipulation are set forth in the majority opinion. This stipulation states that the “imported anamorphic lenses are mounted lenses which have been ground in such a manner as to permit the photographing and projecting of ‘wide screen films.’ ” Appellant agreed that the im*37ported lenses are used in conjunction with standard or telephoto photographic lenses and standard projection lenses. Appellant stipulated that, with different adapters, the imported anamorphic lenses are used with projectors, “the lens formed by the anamorphic lens functioning in conjunction with the standard projection lens enabling undistorted projection of the wide screen film view.” [Emphasis added.]
Appellant further stipulated that the imported anamorphic lenses do not replace standard photographic lenses when used with cameras, and do not replace standard projection lenses when used with projectors. Appellant agreed that the imported anamorphic lenses will not produce undistorted images, either on film or on a projection screen when used by themselves, and are not so used. Finally, of importance, appellant stated that the imported anamorphic lenses and other similar anamorphic lenses were, at the times of importation, used more often with projectors than with cameras and were used for no other purpose.
On the basis of these stipulated facts, it is my view that appellant’s proofs are not legally sufficient to overcome the presumption of correctness which attaches to the collector’s findings.
I agree with the majority that the Customs Court has misconstrued the applicability of Unimark Photo, Inc. v. United States, 47 Cust. Ct. 75, CJD. 2283 (1961) to the facts here. I do not, however, subscribe to what seems to me to be the majority’s unnecessary observation that the “case might be support for the proposition that supplemental lenses not capable of forming an undistorted image are not properly classifiable within paragraph 228(b), as modified, when their use is exclusively limited to the particular camera with which they are shipped.” The issue of the correctness of Unimarh when applied to different fact situations is not before us. It is noted that Unimarh has been widely relied upon by importers, the customs bar, and the Customs Court in various contexts, and should not be disturbed unless the issues therein are directly presented to us. See, e.g., the following cases in which the stated goods were stipulated to be similar in all material respects to those which were the subject of the Unimarh case: Mitsubishi International Corp. v. United States, 52 Cust. Ct. 324, Abs. 68470 (1964) (“photo lenses”) ; Mitsubishi International Corp. v. United States, 52 Cust. Ct. 319, Abs. 68450 (1964) (“photo lenses”); Suncoast Merchandise Corp. v. United States, 52 Gust. Ct. 310, Abs. 68425 (1964) (“wide-angle and telephoto lenses”); Kanematsu New York. Inc. v. United States, 51 Cust. Ct. 274, Abs. 68141 (1963) (“photo lenses”); Barnett Customs Brokers, Inc. v. United States, 50 Cust. Ct. 296, Abs. 67711 (1963) (“wide-angle and telephoto lenses”); Kanematsu New York, Inc. v. United States, 49 Cust. Ct. 321, Abs. 67256 (1962) (“wide-*38angle and telephoto lenses”); Kanematsu New York, Inc. v. United States, 49 Cust. Ct. 175, Abs. 66895 (1962) (“photo lenses”) ; Unimark Photo, Inc. v. United States, 48 Cust. Ct. 316, Abs. 66397 (1962) (“wide-angle and telephoto supplementary lenses”). In each of these cases, claims of the importers were sustained and the merchandise in issue was dutiable under paragraph 1551, as modified, rather than paragraph 228(b). See also Bushnell International, Inc. v. United States, 49 Cust. Ct. 123, C.D. 2370 (1962), distinguishing Unimark as having no “influence over the disposition” there at bar since the goods in issue did not “* * * meet the requirements for classification as parts of cameras * * * .” 49 Cust. Ct. at 128.
Therefore, I would base the decision herein on the ground that the Unimark case is not applicable on its facts to the case before us and predicate our decision on the ground that the importer has failed to prove the collector’s classification was wrong. Like the majority, I see no need to decide the merits of the appellant’s other arguments.