CONCURRING OPINION
Keefe, Judge:I am in accord with my associate, Judge Brown, in denying the motion for rehearing herein. While I differ to some extent in my reasons therefor, I am completely in accord with his opinion that the trade agreements cannot be construed as delegating judicial power so as to limit the classification jurisdiction of the Customs Court. However, I do not agree with my associate that the judgment may be amended to limit the refund of duties so as to conform to the provisions of section 350 of the Trade Agreements Act, restricting executive decreases to 50 per centum. Consequently, I feel that it is necessary, in order to fully express my viewpoint, that a separate opinion be filed by me.
In this case, reported in C. D. 373, in which a motion for rehearing is before us, certain testing machines used for the purpose of testing the hardness, tensile strength, and compression of various metals, which contain within the apparatus a microscope by means of which the indenture made upon the metal is readily ascertained, were held classifiable as testing machines under the provisions of paragraph 353 of the Tariff Act of 1930, as amended by the reciprocal trade agreement with Switzerland.
The reasons set forth for the motion and in argument before us are principally that in rendering said decision this court overlooked the *209extremely serious import resulting therefrom in relation to the nation’s trade agreement progress, because it was the intent of the parties entering into the trade agreement not to transfer articles from paragraph 228 (a) to paragraph 353, and that such transfer would result in a reduction of duties of more than 50 per centum, which is in direct violation of section 350 of the Trade Agreements Act, and that therefore the rule of specificity would have no application to articles affected by trade agreements.
Upon consideration of the motion for rehearing, I have thoroughly examined the law and the effect of said decision upon the trade agreement in question. As I see it, the merchandise in question was ordinarily assessed for duty by the collector under the provisions of paragraph 353 prior to and at the time the trade agreement in question became effective, to wit, January 9, 1936. See Bittner v. United States, promulgated May 25, 1933, and reported in Abstract 24219. There the machine in question was particularly designed for testing the hardness of metals and contained an electric buzzer, electric light, and a battery which supplied illumination so as to enable the operator to inspect the impression made upon the metal through a microscope attached to the machine. The merchandise was classified by the collector under the provisions of paragraph 353. Upon appeal to this court, it was found that the machine was operated entirely by hand and the electric buzzer, electric light, and battery were not essential to the operation thereof. Therefore it was removed from classification under the provisions of paragraph 353 because it did not contain as an essential feature an electrical element or device and was therefore held dutiable as all other machines under paragraph 372.
The trade agreement entered into between the United States and Switzerland on January 9, 1936, among other things, added new language to paragraph 353 of the Tariff Act of 1930, specifically reducing the duty upon testing machines classifiable under said paragraph as follows:
353. Testing machines for determining the strength of materials or articles in tension, compression, torsion, or shear, having as an essential feature an electrical element or device, and parts thereof; any of the foregoing, finished or unfinished, wholly or in chief value of metal, and not specially provided for. 20 per centum ad valorem.
Thereafter, on November 17, 1936, the Bureau .of Customs in a letter notified the collector of a change in classification of testing machines containing microscopes, directing their removal from the provisions of paragraph 353 and advising classification under the provisions of paragraph 228 (a).
An importation was made on December 2,1936, of a Firth hardom-eter the purpose of which was to test the hardness of materials by *210pressure applied to a tool which, penetrated the material to be tested, and the resulting indentation, being small, was read by the aid of a microscope fitted with a micrometer scale. In classifying the merchandise the collector, following the instructions in the aforesaid Bureau of Customs letter, determined that the microscope was firmly attached to the machine and was an essential part thereof. Consequently it was classified by the collector as an optical measuring instrument under paragraph 228 (a) of the Tariff Act of 1930 at the rate of 60 per centum ad valorem. The importer filed a protest against said classification, claiming that said hardometer was a machine and under the Bittner case, supra, was properly dutiable at 27K per centum ad valorem under paragraph 372. See Tinius Olsen Testing Machine Co. v. United States, decided December 16, 1937, and reported in T. D. 49303. At the trial it was established that the machine in that case was used solely for the purpose of testing the hardness of metals; that the machine was operated by hand power; that after the specimen is marked there is a very slight indentation, hardly noticeable to the naked eye, and to determine the size of the indentation a microscope is used to identify the hardness number or type of the indentation; that the microscope is used to determine the reading and that any microscope could be used for that purpose; and that a microscope need not be a part of the equipment. Upon the evidence presented the court held that the testing machine weighing several hundred pounds was an optical measuring instrument by reason of the inclusion of the microscope, and therefore dutiable at 60 per centum ad valorem under paragraph 228 (a).
I am not in accord with the decision in the foregoing Tinius Olsen case, as it is not only contrary to all former classifications of the merchandise by the collector, but is contrary to former decisions of this court on the same type of article. In this connection it will be noted that an optical instrument has been defined by this court and the Court of Appeals in the following cases, and microscopes have been excluded from the definition thereof.
In the case of Mueller v. United States, G. A. 8130, T. D. 37509, certain cystoscopes, being instruments used by surgeons in making-ocular examinations of the human bladder, and consisting of metal lenses, mirrors, and a small electric light adapted to light up the interior of the bladder, .and convey an image thereof to the eye of the surgeon, were held to be neither optical instruments nor microscopes, and were determined to be dutiable according to the component material of chief value, the court stating — •
The primary purpose of the instruments in question is not to aid vision— although incidentally to their use they do aid it — but to enable the surgeon to examine the bladder. They are not optical instruments but surgical instruments. One might almost as well call a gun with a telescopic sight an optical instrument, because incidental to its use the vision would be aided.
*211In the case of Hardy & Co. v. United States, Abstract 38900, 29 Treas. Dec. 671, certain Coddington loupes were classified as optical instruments and field dutiable as microscopes. Tfie article consisted of a lens included in a shield of metal and then there was another piece of metal fastened to one side of it so that it closed over and protected both ends of the lens. It was proven that it was used to magnify anything looked at through it. In holding that the instrument did not come within the definition of “optical instrument” announced in United States v. Bliss, 6 Ct. Cust. Appls. 433, T. D. 35980, the court stated:
A microscope has certain properties and performs certain functions different from those of an optical instrument. It is designed to magnify objects, to bring them in closer relation to the sight. In so doing it is not performing the function of an optical instrument as we- understand the term.
In the case of United States v. Bliss, supra, the Court of Appeals, in holding that certain azimuth mirrors, octants, and sextants were not optical instruments, enquired deeply into the common meaning of the term “optical instruments” and reviewed the law upon the subject and came to the conclusion that articles which present to the vision a desired mathematical conclusion which is expressed upon an instrument in degrees by means of light apply principles or laws discovered and established by prior investigation in the science of optics •for the purpose of producing a result not optical but mathematical, viz, the measurement of an angle.
The ruling in the Tinius Olsen case, supra, was followed by the collector in classifying the testing machine here in question under paragraph 228 (a) as an optical measuring or optical testing instrument, because a microscope was a part of the machine.
A decision of this court or our appellate court is not necessarily binding in a new case involving a similar importation. The decision in the Tinius Olsen case having been promulgated long after the adoption of the trade agreement referred to surely could not have been considered at the time of the adoption of the trade agreement as part of the tariff laws. I prefer to follow previous decisions of the court and not be bound by the decision in that case. Especially is this true when, the added language in paragraph 353 as a result of the trade agreement in question is so specific that it brings such merchandise directly under its provisions.
Counsel for the Government, with consummate skill and adroitness, moves for a rehearing upon the theory that the court in reaching its conclusion that the articles were properly dutiable under the provisions of paragraph 353, as amended by the trade agreement between the United States and Switzerland, has overlooked factors of far-reaching importance which, if taken into account, would result in a conclusion contrary to that reached by the court, inasmuch as the *212concessions granted in said trade agreement did not include any intent to transfer articles from paragraph 228 (a) to paragraph 353, and that such transfer would result in a reduction of duties of more than 50 per centum in direct violation of section 350, and, therefore, the rule of specificity would have no application because the intent is otherwise expressed.
In other words, the contention of the Government that in pursuance of the power delegated by Congress to the President to raise or lower the rates of existing duties through the Trade Agreements Act, providing that proclamation shall not be made increasing or decreasing by more than 50 per centum any existing rate of duty or transferring any article between the dutiable and free lists, the holding of this court that the articles in question are properly classifiable under the provisions of paragraph 353 at 20 per centum ad valorem rather than under the provisions of paragraph 228 (a) at 60 per centum ad valorem, is without authority of law. That is to say, when the collector has classified any article under any paragraph of the law which bears a duty of more than 50 per centum higher or lower than a rate proclaimed in any trade agreement for any given article, the court is without jurisdiction to decide the proper classification thereof, insofar as it places the articles within the scope of the wording of the trade agreement for such article. The absurdity of such contention is at once apparent. At the time of the agreement between the United States and Switzerland, testing machines containing as an essential feature an electrical element or device and also containing a microscope to ascertain the results accomplished by the testing machine were regularly classified by the collector under the provisions of paragraph 353 at 35 per centum ad valorem. After the agreement had been entered into between the contracting parties, the collector, upon advice, of the Bureau of Customs, changed the classification of a testing machine, not having as an essential feature an electrical element or device, but containing a microscope, from the provisions of paragraph 372 at 27% per centum ad valorem as all other machines, to the provisions of paragraph 228 (a) as optical measuring or optical testing instruments at 60 per centum ad valorem. When the case came before this court for decision, notwithstanding evidence to the effect that the result of the test may be ascertained by any microscope not connected with the machine, and disregarding the fact that the machine was designed for the purpose of testing metals and was not designed as an optical measuring instrument, the court held the article to be dutiable as assessed by the collector. Now the Government is contending that, right or wrong, such decision must stand as authority for the collector’s action in subsequent classifications involving merchandise containing a microscope as a part thereof. The Government has overlooked the fact, in the instant proceedings, that, at the time the *213trade agreement was entered into, merchandise such as is now before us was properly classifiable by the collector under the provisions of paragraph 353. However, if such were not the case, I am of the opinion that, under the law, this court has the authority and the jurisdiction to reclassify merchandise the subject of trade agreement, when the evidence presented before this court establishes that such merchandise had been erroneously classified by the collector under a paragraph not within the scope of a trade agreement, even though a reclassification of such merchandise would result in a reduction of more than 50 per centum in duty. In so doing the agreement, which in no way affected the articles enumerated in paragraph 228 (a) of the act of 1930, is still not affected when merchandise erroneously classified under said paragraph is held classifiable under the paragraph the subject of trade agreement, because it was always properly classifiable thereunder.
The answer to the argument of the Government is, first, that when Congress writes a tariff act, or modifies an existing tariff act, before coming to an agreement upon the change of any schedules each item is carefully considered and debates held. After the passage of such an act, the collector classifies imported merchandise in accordance with his interpretation of the written law. The interpretation of the law by the collector in classifying merchandise thereunder is specially subject to review by a court of law, as granted by Congress in section 514 of the Tariff Act of 1930. In delegating its power to the President in the Trade Agreement Act to change rates, Congress delegated no more power than it retained- for itself, and, therefore, classifications of the collector -under any trade agreement are subject to the same review before customs tribunals as classifications made pursuant to- changes made by Congress in the tariff act itself. Second, that if the Government’s contention is sound, the Secretary of the Treasury has no more authority to order the collectors of customs to change the classification of any merchandise previously classified under a paragraph which had been changed by the enactment of a trade agreement than the court would have to reclassify the merchandise. Metal testers, having as an essential feature an electric element or device, and containing an electric buzzer and battery, which was necessary to throw a light on a microscope attached to the machine in order that the operator might inspect the impression, were classified by the collector under paragraph 353 previous to the enactment of the trade agreement in question. Under the theory advanced by the Government such articles could not be removed by the collector from the provisions of paragraph 353, as amended by the trade agreement, even though it had been found that such articles had been improperly classified thereunder.
I am of the opinion that the merchandise before us is properly classifiable under the provisions of paragraph 353 of the Tariff Act of 1930 *214as well as the provisions of said paragraph- as amended by the trade agreement between the United States and Switzerland.
I am not in accord with my associate’s ruling that, because the rate of duty determined by the judicial classification of this article is a reduction of more than 50 per centum of the duty paid, we must of necessity limit the refund in duties to the plaintiff to 50 per centum. The trade agreement in question never purported to reduce the duty upon testing machines outside the range of the 50 per centum reduction, nor did it do so. However, the collector erroneously classified the merchandise under a paragraph bearing a duty- of such high rate that the proper classification thereof,, .in. effect, reduced the duty thereon to more than 50 per centum. ’Were it- possible for the. collector by classifying the same under other paragraphs of the law to discriminately raise duties upon merchandise .coming within the language of reductions granted in trade agreements, without the.,power, of the courts to review such findings and make refund of illegal assessments, it would be possible for the Treasury Department to defeat the. entire trade agreements program... I am of the opinion that the plaintiff is entitled to judgment ordering the return of monies representing the difference between the assessment of duty of 60 per centum ad valorem and 20 per centum ad valorem.-
I therefore join with Judge Brown in overruling the motion of Government counsel for a rehearing. ■ ■