DISSENTING OPINION
Bland, Judge:Crude sponges imported in bales were reported by the appraiser to the collector as not being marked in accordance with the provisions of section 304 (a) of the Tariff Act of 1922. The collector required the importer to mark the bales before delivery of the goods, but did not require any marking, stamping, branding, or labeling of the sponges. The collector imposed a 10 per cent extra duty on the appraised value of the goods, which action the importer protested. The United States Customs Court reluctantly sustained the protest, ordered a reliquidation, and a refunding of the extra duty, which action was taken, evidently, on account of the authority of the decision of this court in Burstein & Sussman v. United States, 14 Ct. Cust. Appls. 255, T. D. 41877.
There was no testimony or evidence introduced before the board. The importer contended there, as he contends here, that, under the Burstein & Sussman case, supra, the fact that the collector required only the marking of the bales and not the sponges before releasing the custody of the merchandise raised the presumption that the goods were either properly marked, branded, stamped, or labeled, or that they could not be so marked, branded, stamped, or labeled in accord-*67anee with the provisions of the statute, and that the levying of the 10 per centum additional duty, under such circumstances, was not in accordance with the law.
In the Burstein & Sussman case, supra, the court had before it an appeal by importers of sanitary napkins, who had unsuccessfully protested the levying of the 10 per centum additional duty on account of the failure to mark the individual napkins, or properly mark the pasteboard packages containing the napkins. The collector, in that case, did not require the importers to mark the napkins, but released the goods when they had re-marked the pasteboard container.
The opinion of this court in the Burstein & Sussman case reversed the action of the Board of United States General Appraisers (now United States Customs Court), and gave approval to the position taken by the importer in the following language:
The collector did not require the importer to mark or label the napkins, and he delivered the goods to the importer without such marking. We must, therefore, presume that they were not capable of being marked, stamped, branded, or labeled without injury. To hold otherwise would mean that the collector failed to perform the duty imposed upon him by law. The marking ordered by the collector was an official determination by him that the napkins themselves could not be marked without injury and as the presumption of correctness attaching to that decision had not been overcome, it must be held that the napkins themselves were not capable of being marked, stamped, branded, or labeled, as prescribed by section 304 (a).
The Government, in this court, maintains that, regardless of the pertinency of the Burstein & Sussman case, the facts in the instant case bring it squarely within the case of Atterbury Bros. v. United States, 14 Ct. Cust. Appls. 416, T. D. 42056, and urges that, had the Atterbury case been decided by this court at the time of consideration of the instant case by the court below, its judgment would have been otherwise.
Some aspects of the Atterbury case, at least in effect, seem to be in direct conflict with the Burstein & Sussman case, in so far as the court there used the following language:
It is somewhat argued that, because the collector delivered the rolls of paper without compelling them, while in customs custody, to be ^parked as provided in the statute, some presumption arises that he found they were not capable thereof, but we think that any such presumption arising therefrom was rebutted by the fact that he actually assessed the duty provided in the section. In addition to this the importer has, as he was required, undertaken to show that the merchandise was incapable of receiving the statutory marking. (Italics not quoted.)
In the Atterbury case rolls of newsprint paper, packed in slatted wooden cases, were released from customs custody by the collector after he had required the cases only to be marked “Made in Norway.” That the árticle was the roll of paper was not disputed. A 10 per centum duty was added by the collector, which action was pro*68tested by the importers and which protest was overruled by the trial court. This court affirmed the action of the court below.
Having in mind the several cases decided by us involving protests against the assessment of additional duties for failure to properly mark imported merchandise, it is apparent to us that most of the litigation has arisen on account of the failure of the collector to require the article to be marked before release, or on account of his erroneous determination as to what constituted the article and what constituted the container or package. Some of the confusion arose from the contention that the statute should be interpreted to require the marking of the commercial unit as the article. This question was settled in the Martorelli and Hobe Button Co. cases. The marking section of the statute requires that both the container and the package shall be marked, but only authorizes the imposition of a 10 per centum additional duty in the event the article, as distinguished from the container, is not marked.
In the case of United States v. Martorelli, 12 Ct. Cust. Appls. 327, T. D. 40483, figs were packed in baskets and the small baskets were packed in the larger baskets. The collector assessed a 10 per centum additional duty, evidently believing that the basket of figs was the article. This court held that the figs constituted the article of importation. There was no testimony as to whether the figs could or could not be marked. The court there said:
The question whether the figs of this importation were capable of being marked, stamped, branded, or labeled, without injury, within the meaning of section 304 (a), does not properly arise on this record, and we desire to express no opinion in that respect. The collector released the figs without marking. Assuming that the collector performed his legal duty, it appears he found the figs not capable of being marked, stamped, branded, or labeled without injury; otherwise he could not have released them without marking. There was no testimony of any kind offered before the Board of General Appraisers as to whether or not these figs were capable of being marked as specified by section 304 (a). No contention is made here on that point, it being apparently assumed that the figs in question are incapable of being marked according to the statute.
The question in each case as to whether an imported article is capable of being marked as provided by section 304 (a), without injury, is a question of fact, to be determined either by the collector in the performance of his legal duties, or by the Board of General Appraisers on evidence properly taken. American Bead Co. v. United States, 7 Ct. Cust. Appls. 18, T. D. 36259; United States v. Lee Co., 9 Ct. Cust. Appls. 111, 112, T. D. 37977; United States v. Squibb, 2 Ct. Cust. Appls. 353, 355, T. D. 32081; Vitelli & Son v. United States, 7 Ct. Cust. Appls. 243, 275, T. D. 36544.
In many cases the determination of such matters would require the testimony of experts in chemistry, mechanics, and other sciences. They are not such questions as this court will ordinarily take judicial notice of.
The case of Di Martino v. United States, 14 Ct. Cust. Appls. 57, T. D. 41554, followed the decision in the Martorelli case.
*69In the case of Hobe Button Co. v. United States, 12 Ct. Cust. Appls. 341, T. D. 40488, this court reversed the trial court and held that the article imported was the button and not the card upon which the button was sewed. The position of the collector and the trial court was that the commercial unit was the card of buttons, and that the importer’s failure to mark them warranted the imposition of the additional duty. Without regard as to whether the buttons could or could not be marked, this court reversed the trial court upon its finding as to what was the article and, at page 346, said:
* * * We believe that whether the article is markable is a question of fact to be decided upon the evidence and pertinent circumstances in each individual case; * * *
In Artistic Weaving Co. v. Maguire et al., 13 Ct. Cust. Appls. 140, T. D. 40964, the collector, under the instruction of the Treasury Department, held that the individual coat labels were not required by law to be marked, and that the marking of the roll of labels containing from 500 to 1,000 labels was sufficient.’ Appellant, an American manufacturer, protested the action of the collector in failing to require that each label be marked. This court held that the individual labels were the articles imported and that they should have been marked.
In Yohalem & Diamand v. United States, 14 Ct. Cust. Appls. 92, T. D. 41586, the court held that the collector erroneously imposed the 10 per centum duty for failure to mark a can of mixed vegetables, it being held by this court that the vegetables themselves were the articles imported, and that they were incapable of being marked in accordance with the provisions of the statute. The case of Hudson Forwarding Shipping Co. (Inc.) United States, 14 Ct. Cust. Appls. 94, T. D. 41587, involving a can of olive oil, was substantially to the same effect.
The case of Gray & Co. (Inc.) v. United States, 15 Cust. Appls. 122, T. D. 42192 involved the marking of cheeses which were imported two in a box, of which importation the box only was marked to indicate the country of origin. The collector required that the paraffin-coated cloth covering of each cheese be marked and assessed additional duty. The court held that the cheese itself was the article of importation; that the cloth covering was the container, and that the collector’s failure to require the cheese to be marked raised the presumption that the cheese was incapable of being marked, stamped, branded, or labeled without injury, and the cases of Martorelli, supra, and Burstein & Sussman, supra, were cited as authority.
It may be noted here that at the time this case was decided by this court (May 7, 1927) the Atterbury case, supra, had been decided by this court on March 9, 1927, and that the Atterbury case was not cited or referred to.
*70With these various decisions in mind I approach the questions: First. Does the failure of the collector to require the marking of the article carry with it the presumption that the article is already properly marked or is incapable of being marked? Second. Does the collector’s imposition of the 10 per centum additional duty carry with it a presumption that the imported article is not properly marked and is susceptible of marking in accordance with the statute without injury? Third. If both presumptions lie, and if there is no evidence in the record, how shall the issue be determined?
In the Bustein & Sussman case, the Martorelli case, and the Gray eft Oo. case this court answered the first question in the affirmative, and in the Atterbury case it answered, the second question in the affirmative and stated that one presumption rebutted the other. Now, in the instance case, some one in authority, no doubt the collector, permitted the release of the goods after the bales only had been marked in customs custody. Since no evidence was introduced, ii the second presumption rebuts the first, the importer at the trial in the court below found himself confronted with a duty, presumably legally assessed, by the collector, which he had protested and which, if his protest was to be supported, he must show was erroneous and illegally exacted. This he could do by showing the article was not the individual sponge but was the bale of sponges, and that the bales were properly marked in accordance with law, or that the sponges were the articles, and that they were properly marked or incapable of being marked.
In some of the cases which we have considered I think the collector could hardly have misunderstood what was the article and what was the container, and yet he did not require the article to be marked before releasing and only required the container to be so marked, and also assessed the additional 10 per centum duty. In that kind of case I would rather believe that the releasing of the goods without proper max-king was the neglect of some one than to attribute to the collector such a palpable error in determining what the article was and to also, at the same time, attribute to him the levying of a duty which under the circumstances he should know was not warranted in law.
The facts in the case of Sheldon & Co. v. United States, 14 Ct. Cust. Appls. 419, T. D. 42057, illusti-ate the thought. There a paper-lined box, containing 12 chickens, was imported without any legal marking on either the box or chickens. Could there be any doubt in the mind of the collector that the imported article was the chicken? And yet he assessed the additional duty for failure to mark the chickens and only required tlie box to be marked before permitting the release of the goods. In this kind of case it would not be fair or proper to apply the rule of the Burstein case and say *71that his failure to require the marking of the chickens was presumptive that he found that they could not be marked, because it would permit a legal presumption to control as against facts which conclusively and overwhelmingly rebut the presumption. Now, in cases like Yohalem & Diamand, supra, (canned vegetables), Hudson Forwarding & Shipping Co. supra (can of olives), Gray & Co., supra, (cheeses), and Hole Button Oo., supra (cards of buttons), I can easily understand how the collector might be confused as to what was the article and what was the container. In these cases'the court held the vegetables and olives and cheeses and buttons to be the articles. Since they were not capable of being marked, the 10 per centum penalty did not apply. In many instances it has occurred to this court that the collector has frequently overlooked the proposition that the very wording of the statute indicates that certain importations are necessarily incapable of being marked, and this court said in Hole Button Co., supra:
The position of the Government in this and the Bradford case indicates that they desire a construction which, if carried to its logical conclusion, would result in a holding that articles which can not be marked will not be regarded as the article covered by the additional duty provision of section 304 (a), but that if the article can be marked then it should be held to be the article of importation therein referred to. Obviously the paragraph does not say this, nor can it be made to say it by any reasonable construction.
In cases where the article is not marked and there is no evidence as to its susceptibility of such marking, as in the instant case, the presumptions that may be drawn from the action of the collector in the two official acts brought to the court’s attention in this case should not be permitted to control as against the sample of the importation and other facts which rebut the presumptions or have greater weight than the presumptions carry. Each case must be determined upon its merits, and, as this court said in United States v. Martorelli, supra:
The question in each case as to whether an imported article is capable of being marked as provided by section 304 (a), without injury, is a question of fact, to be determined either by the collector, in the performance of his lega] duties, or by the Board of General Appraisers, on evidence properly taken. * * *
If it is obvious that the collector did not misunderstand which was the article and he assessed 10 per centum additional duty, and if it is also obvious that the article was susceptible of being marked, the presumption arising from his releasing from customs custody without marking is not sufficient to warrant us in holding that he found the articles not susceptible of being marked.
In this case the court below held:
We have several times held that sponges were capable of being marked.
*72I see no reason why the sponges could not be marked. It certainly would not produce injury to tag each individual sponge. It is clear to me, and I believe it was clear to the collector, that the individual sponges were the articles of importation. The fact that he, or someone under him, permitted the release of the goods without requiring each sponge to be marked should not inure to the importer’s advantage. He, unquestionably, by his conduct, brought himself within the penalty provision of the law. He ought not to successfully complain,' because the collector treated him more favorably than the law contemplated.
In United States v. Gandolfi & Co., 12 Ct. Oust. Appls. 455, T. D. 40615, Judge Hatfield, for the court, said:
If the official action of the collector is admittedly not an expression of his judgment of the law and the facts, and if he asserts in his official report that such official action is incorrect as to both the law and the facts, and that the claims made in the protest are entirely valid, can it properly be said that such official action is attended by a presumption of correctness? We think not.
We are of the opinion that where a collector makes an official report, such as appears in this case, within the period of time provided for review by him of an advisory classification, and asserts that his official action is wrong, and that the claim made in the protest is entirely valid, and further states that the merchandise is properly dutiable under a paragraph of the tariff act which provides for merchandise such as is described in the invoice, there is no presumption of correctness attending his official decision, and the statement in such report as to proper classification of the merchandise, being entirely consistent with the description of the merchandise, contained in the invoice, which was a part of the record in the case, is sufficient to sustain the judgment of the Board of General Appraisers sustaining the protest. Wheeler, Elder & Elder v. United States, 11 Ct. Cust. Appls. 110, T. D. 38752.
There are many considerations which bring me to the conclusion reached, and a careful scrutiny of the marking section of the statute confronts one with the anomalous and strange results of a construction of the statute to the effect that the release of the goods by the collector or other customs officials carries with it a presumption that the goods could not be marked in accordance with the statute, which is controlling in the absence of evidence.
While probably unduly extending this dissent, I desire to set out in full section 304 (a) of the Tariff Act of 1922:
Sec. 304. (a) That every article imported into the United States which is capable of being marked, stamped, branded, or labeled, without injury, at the time of its manufacture or production, shall be marked, stamped, braiided, or labeled, in legible English words, in a conspicuous place that shall not be covered or obscured by any subsequent attachments or arrangements, so as to indicate the country of origin. Said marking, stamping, branding, or labeling shall be as nearly indelible and permanent as the nature of the article will permit. Any such article held in customs custody shall not be delivered until so marked, stamped, branded, or labeled, and until every such article of the importation which shall have been released from customs custody not so marked, stamped, branded, or labeled, shall be marked, stamped, branded, or labeled, in accordance
*73with such rules and regulations as the Secretary of the Treasury may prescribe. Unless the article is exported under customs supervision, there shall be levied, collected, and paid upon every such article which at the time of importation is not so marked, stamped, branded, or labeled, in addition to the regular duty imposed by law on such article, a duty of 10 per centum of the appraised value thereof, or if such article is free of duty there shall be levied, collected, and paid upon such article a duty of 10 per centum of the appraised value thereof.
Every package containing any imported article, or articles, shall be marked, stamped, branded, or labeled, in legible English words, so as to indicate clearly the country of origin. Any such package held in customs custody shall not be delivered unless so marked, stamped, branded, or labeled, and until every package of the importation which shall have been released from customs custody not so marked, stamped, branded, or labeled shall be marked, stamped, branded, or labeled in accordance with such rules and regulations as the Secretary of the Treasury may prescribe.
The Secretary of the Treasury shall prescribe the necessary rules and regulations to carry out the foregoing provisions.
The section provides, first, that every article imported shall be marked; second, that every article held in customs custody shall be marked before delivery; third, that the goods held shall not be released until those which have been delivered shall have been marked.
The statute clearly contemplates that certain goods are not “held,” but are released by the collector. Probably nine-tenths of a given unmarked shipment are delivered without marking. Can it be said that the act of delivering these goods carries with it the presumption that they were incapable of being marked, to the extent that the act of levying a 10 per centum penalty at the time of liquidation by the collector is overcome and brushed aside?
It should be noted that there is no provision in the section which provides that no merchandise shall be delivered until it is marked, but, on the contrary, the provision clearly implies that the major portion of the goods may be released before they are marked. Evidently Congress realized that it is frequently impossible for the collector to determine the markability of the goods before they are released. It would seem to me to be a strange and dangerous doctrine to hold that the collector, when he comes to liquidate, shall be prevented from doing such things as the law requires merely because he has theretofore presumptively done something to the contrary.
In the absence of any showing of error, the official act of the collector in levying the additional duty upon liquidation should stand unchallenged, and the action of the court below sustaining the protest and ordering a refund of the duty should be reversed. The question pressed in this case was not presented in the other cases cited herein, and, in fairness to the trial court, which reluctantly sustained the protest because of our decision in the Burstein & Sussman case, supra, it should be said that the Atterbury case had not been decided when it ruled on the instant case.
*74The judgment of the United States Customs Court should be reversed and remanded.
For the reasons above, I dissent from the decision of the court.