dissenting, with whom Worley, Chief Judge, joins.
I dissent from the opinion of the majority since I cannot agree that the economizer pipes here involved are “more than” pipes. Each is, in my view, a species of “cast-iron pipe of every description.”
I agree with the majority that in a broad sense a basic approach to the resolution of the “more than” issue in a particular case is “to ascertain the common meaning of the tariff provision and compare it with the merchandise in issue.” Having done so, I am convinced that no significant difference can be found such as to categorize an economizer pipe as something beyond the bounds of that which is com*37monly regarded as pipe. Paragraph. 327 of the Tariff Act of 1930,-claimed by appellant to be the proper classification for these articles, expressly provides for “cast-iron pipe of every description.” (Emphasis added.) This conveys the same idea as the long-standing principle that an article named in a tariff provision without limitation includes all forms of the article in the absence of a showing of legislative intent to the contrary. Nootka Packing Co. et al. v. United States, 22 CCPA 464, 466, 470 (1935); Smillie & Co. v. United States, 11 Ct. Cust. App. 199, 201 (1921). A mere modification in design by itself does not, in my opinion, change the Status of the economizer pipe as a form of pipe.
The error in the reasoning of the majority is the concept that the imported pipes perform two functions by virtue of their design— conveyance of water and heating the water — the former being merely ancillary to the latter which is deemed to be the “primary” function. The problem with premising the result on this concept is that the fins, which form the distinction in design over a conventional pipe, do not create any new function. Heat transfer could be effected by using an unextended or plain pipe.
Mr. Gunther, representative and distributor for the manufacturer of the economizer pipes, testified at trial as follows:
Q. Would you please briefly for the court describe the actual function of the type 26 economiser tube when it is used in a feed water economizer or low water economizer, what does it actually do? A. The type 25 tube conveys the water through the flue gas stream which is going to the chimney from a power boiler. This tube picks up the heat and conducts it to the water which is flowing through the tube and this heated water then goes into the boiler to produce steam.
It therefore appears that all that is required to effect heat transfer is the conveyance of water through a conduit composed of a heat-conducting material. The fins increase the surface area of the heat-conducting material and thereby admittedly enhance the efficiency of heat transfer. However, this does not endow the merchandise with the capability of performing a new or different function. An improvement of this type stands on the same footing as the use of a different pipe material, e.g., one which is a better heat conductor than cast-iron, or a thinner pipe. Each of these expedients tends to improve heat transfer but fails to alter the character of a pipe.
The “more than” doctrine, as it might be termed, is not a clear-cut rule and the majority may be a prophet in its skepticism toward the possibility of determining reasonably certain contours by which to define the doctrine. It is difficult to extract meaningful principles from prior cases in which this court or the Customs Court has been faced with the contention that the merchandise at bar is more than an article specifically provided for in the Tariff Schedules. However, I would not draw a conclusion too hastily on the design of a specific *38article. The article may indeed be a “potent witness,” 'but much libe all other witnesses, its appearance may be deceptive testimony.
I am not persuaded by the fact that an economizer pipe looks different from a pipe as the layman normally conceives of one. For all its structure, the economizer pipe does not permit the user to obtain disparate functions which are not obtainable in some degree with ordinary pipe.
I would hold that the Customs Court erred in rejecting the importer’s claim for classification under paragraph 327", and that such classification would preclude (the Collector’s classification under paragraph 397 which is premised on the lack of special provision elsewhere. I would reverse the decision and judgment of the Customs Court.