dissenting, with whom Bich, Judge, joins:
With due respect, I think the decision below is free of error.
I agree with the majority that the “classification” and “absorbent” issues should be disregarded. The first is based on a Customs “report” not of record and not argued below. The second has no relevance to ■“and all activated chars and carbons” in paragraph 69.
The majority opinion, turning as it does on legislative history, recognizes that nothing in that history reflects Congressional concern over importation of “spent” activated carbon. For all that can now be known, the employment of “and all activated chars and carbons” [emphasis mine] in paragraph 69 is equally interpretable as intended to cover activated carbon in any form, “spent” or not.
Whether considered from a scientific or commercial point of view, *17the imported, merchandise was activated carbon. Once activated it remained so. “Activated” simply described its physical structure. It means that the cellular structure is such as to provide an abundance of entrapment areas. The merchandise may have been wet activated carbon and dirty activated carbon, but activated carbon it was.
“Spent” is not the same as “used up” when applied to activated carbon, which is no more “spent” when its interstices are full and dirty than a sponge is “spent” when it is filled with water and deleterious particles, regardless of the specific physical phenomenon involved in the entrapment process. The mere application of heat and cleaning, like the emptying and cleaning of a sponge, is sufficient to “unspend” or regenerate the activated carbon for its intended purpose, i.e., entrapment. To me, the imported goods were not “raw .material” used in making activated carbon but the thing itself, albeit wet and dirty.
Appellant sold the imported goods, after regeneration, as activated carbon, to be used for a number of the well-known purposes to which activated carbon has normally, commercially been put over many years. Adhering to the analogy, a sponge originally employed to hold water becomes no less a sponge when squeezed and then employed to hold orange juice. Hence the prior use hr gas masks and the acquisition of moisture would not, in my view, convert the imported activated carbon into something “useless for the original purpose” and “fit only for remanufacture into something else.” Harley Co. v. United States, 14 Ct. Cust. App. 112, T.D. 41644 (1926). There is nothing in paragraph 69 requiring restriction to any specific use of the activated carbon classified thereunder.
The government classified the imported merchandise, under paragraph 69, exactly as what it is, namely an activated carbon. That ends the matter and I would stop there.
Moreover, much of the decision below turns, in my view, on the testimony of witnesses, whose demeanor and forthrightness were observed by the trial judge and are denied to us. The facts of the present case, as I read them, parallel those in the Supreme Tire case. I find therefore, no reversible error in the decision below and would, accordingly, affirm it.