DISSENTING OPINION
Lawrence, Judge:The opinion originally prepared by me was intended to express the views of the majority. However, for reasons-which will presently appear, I am now constrained to write a dissent.
I respectfully disagree with my associates in their conclusion that the spiral heat exchanger in controversy is a part of a machine for making paper pulp or paper, within the rule announced in United States v. Willoughby Camera Stores, Inc., 21 C. C. P. A. (Customs) 322, T. D. 46851.
I am of the opinion that the record fails to establish that the imported device is an integral, constituent, or component part of a machine for making paper pulp or paper, and that it is chiefly soused, as required by said rule.
In their brief filed herein counsel for plaintiff insist that—
The uncontradicted testimony and evidence establishes conclusively that the imported merchandise is an integral, constituent and component part of the-pulp making machine without which the machine could not function as such.
I do not so read the record. An examination of the testimony of the only witness in the case discloses that it is not entirely accurate to say that he gave “uncontradicted testimony.” For instance, answering an inquiry of the court concerning the imported device, the witness replied: “This is used exclusively in pulp mailing machines,” notwithstanding he had previously testified in the incorporated case that similar devices were “used in connection with pulp making in a pulp plant,” adding “I would not say in connection with pulp making machinery, but in a pulp plant.”
In passing, it may be noted that, in the absence of proof of chief use, it would seem to be a matter of little consequence that the instant importation may have been “used exclusively in pulp making machines.” But it is important to know the chief use of such or. similar devices. The witness conceded that—
This spiral heat exchanger has been applied in almost all chemical industries, 'principally, however, in the pulp industry and sugar industry, and by some in the sulphuric acid industry.” [Italics supplied.]
*105and that they can be interchangeably used in the different industries,,
His statement that “This heat exchanger is installed in a relief line, 'that is, a connection to the digester” creates uncertainty as to its exact relation to a pulp-making machine. Query: Is the digester-complete in itself without the relief line, or does its completion require-that it be joined to the relief line in which the spiral heat exchanger is installed?
The record does not disclose the length of the so-called relief line-in which the imported spiral heat exchanger is. installed, nor whether or not the line is part of the digester or of the spiral heat exchanger to each of which the line is connected. The line might well be merely the medium through which the exhaust steam from the digester is transmitted to the heat exchanger. If so, the line in which the imported heat exchanger is installed is probably neither a part, of the digester nor of the exchanger. The pipes which carry steam from a boiler to a radiator are not necessarily a part of the boiler or of the radiator. They are at best merely a transmitting medium. The sole function of the radiator is to utilize and distribute heat furnished by the steam generated in the boiler. Similarly, the single purpose of this spiral heat exchanger is. to transfer the heat supplied by the, exhaust steam from the digester to the cold medium passing through the exchanger.
Nor does it appear of record that the exhaust steam thus utilized' contributes in any way to the actual making of pulp. Indeed, any-such claim would apply with equal force to the offensive gases and odors in such exhaust steam. Apparently it is highly desirable to eliminate such gases and odors, as evidenced by the testimony of the-witness above quoted as to the use of the exchanger.
It is a matter of common knowledge of which the court may take judicial notice that many manufacturing establishments have in-, stalled therein fans or other devices to eliminate offensive odors or-gases. Ordinarily, these contrivances would not be considered parts of particular machines which made given products, unless the device was incorporated in and formed an integral part of the internal mechanism of the machine proper.
Similarly, it is conceivable that there may well be in a pulp-making plant many mechanisms other than pulp-making machines or parts, thereof. For example, it would not necessarily follow that dynamos, motors, steam engines, or other power-driven contrivances employed in.such a plant must be regarded as pulp-making machines or parts thereof. They might be considered part of the machinery of the plant but not necessarily of the pulp-making machines proper.
In United States v. J. E. Bernard & Co., Inc., 28 C. C. P. A. (Customs) 182, C. A. D. 142, our appellate court had before it for tariff classification two filters used in the clarification of certain liquids. The, court *106pointed out that, when in use, these filters worked in connection with a pump and a container-filling device; that the “pump forces the liquid out of a tank into, or through, the filter sheets that are between filter plates embraced in a frame, whence it goes to the container-filling unit.” Of the complete apparatus the court said:
* * *. While the combined units may fall within the broad designation of machinery, it must be borne in mind that there is a distinction between’ “machinery” and “machines,” and that paragraph 372, supra, while providing for parts of machines does not provide for parts of machinery.
As I view the record it presents a situation analogous to that which prevailed in Testing Machines, Inc. v. United States, 12 Cust. Ct. 42, C. D. 828. That case involved the dutiable status of a device described as a “Canadian Standard Freeness Tester.” As in the instant case, it was assessed with duty at the rate of 45 per centum ad valorem under said paragraph 397 as an article, not specially provided for, composed in chief value of metal. It was claimed to be dutiable at 20 per centum ad valorem under the provision in the trade agreement with Sweden, incorporated in paragraph 372 of the Tariff Act of 1930, covering machines for making paper pulp or paper, and parts thereof. In that case we said:
It is not clear from the testimonial record precisely how these instruments are adjusted for use in a paper mill, the witness stating that “They are right alongside the beater machine — the beating machines, the machine that beats the pulp.” However, aided by the pictorial representation (exhibit A), it would appear that the device is in two sections, each fastened, one above the other, to a panel, which in turn is apparently bolted to an upright surface. The function of the device is to determine the “beating degree of the pulp, or, in other words, •how fine or how coarse the pulp is beaten. * * *
Accordingly, we there expressed the opinion that—
The evidence before us falls far short of establishing that the freeness tester “is something necessary to the completion” of a machine for making paper pulp or paper. Neither does the record prove in the slightest degree that the tester is “an integral, constituent, or component part,7 without which the paper pulp or paper-making machine could not function as such. The device lacks the inherent attributes outlined by our appellate court in United States v. Willoughby Camera Stores, Inc., supra, and the other cases above cited, to be properly characterized as a “part” of any machine. * * *.
Counsel for the plaintiff in their brief herein contend that—
The case at Bar is directly analogous to the issue in the case of Paper Mill Equipment, Ltd. v. United States, reported in 7 Cust. Ct. Reports, page 25, C. D. 526, wherein this Court held certain wire mesh cloth a part of a'pulp making machine.
Adding that—
"The reasoning applied in that case should be here applicable, namely: that the imported merchandise was an integral, essential part of the pulp machine without which the machine could not perform the function for which it was designed ¿and constructed.
*107After quoting at length from the testimony of three witnesses in that case, this court found that the therein involved merchandise, which consisted of wire cloth, some having 28 and some less than that number of meshes in warp and filling per lineal inch, was, in its imported condition,, ready to be affixed to a Kamyr pulp-making machine without requiring any further manipulation or work applied thereto; that it was an integral part of said machine without which the latter could not function for the purpose for which it was designed and constructed, and had no other use than as such part.
On those facts we concluded that—
Although the present wire screen or cloth is an integral part of a pulp-making machine, nevertheless on account of its size it is not suitable for use in paper-making machines. Therefore, it must be excluded from the said provision in paragraph 318. Geo. S. Bush & Co., Inc. v. United States, T. D. 48138, 69 Treas. Dec. 251. And since it is an integral part of a pulp-making machine, without which said machine could not properly perform its function, this screen or cloth is properly dutiable under said paragraph 372, as alleged by the plaintiff. United States v. Willoughby Camera Stores, Inc., 21 C. C. P. A. 322, T. D. 46851.
Obviously the facts there and here presented readily distinguish the Paper Mill Equipment case, supra.
The majority reach the conclusion that the spiral heat exchanger in controversy is an integral, constituent, and component part of a machine for making paper pulp, without which the machine would not function, citing the rule announced in United States v. Willoughby Camera Stores, Inc., 21 C. C. P. A. (Customs) 322, T. D. 46851.
It is true that the Willoughby case lays down the rule that in order for an article to be legally a “part” of another article it must be “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” However, that is not all. Not only must the alleged “part” be an “integral, constituent, or component part,” etc., as above indicated, but it must also be chiefly used as a “part” of the machine to which it is to be joined.
The majority squarely disavow the latter contention. They quote several extracts from the Willoughby decision, one of which reads as follows:
The court below held that the involved tripods were chiefly used as parts of cameras, and, therefore, dutiable as such parts. Of course, if they are parts of cameras and chiefly so used, the judgment must be affirmed. Magone v. Wiederer, 159 U. S. 555. However, if they are not parts of cameras, the fact that they are chiefly used in connection with, and as supports for, cameras, is, obviously, not of vital importance in a proper determination of the issues before us. [Italics supplied.]
Commenting upon this, the majority opinion reads in part:
* * *. In other words, the last quotation from the Willoughby case reads out of the equation any question as to the use or chief use of the article which is claimed to be a part of another article. This must necessarily be true, because the rule *108for determining whether or not a given article is a part of another article is without qualification, and contains no mention of use or chief use. [Italics supplied.]!
I sharply disagree, with the statement that the Willoughby quotation “reads out of the equation any question as to the use or chief use of the article.” [Italics supplied.] In my opinion, the Willoughby quotation reads into the “equation” the question .of use. Further, I am in disagreement with the statement that “the rule for determining-whether or not a given article is a part of another article is without qualification, and contains no mention of use or chief use.” [Italics, supplied.]
The language quoted from the Willoughby case, supra, expressly states that “Of course, if they are parts of cameras and chiefly so used, the judgment must be affirmed.” [Italics supplied.] In the presence of such explicit language, predicating the classification of articles upon their chief use as integral, constituent, or component parts of some other article, it is impossible to ignore consideration of chief use in “the equation.”
. That the appellate court in the Willoughby case was impressed with the fact that chief use was a sine qua non to the classification of an article as a “part” of something else, is. evidenced by its citation of Magone v. Wiederer, 159 U. S. 555. In that case the question before the court was whether certain pieces of glass, cut into shape to order and having beveled edges, and which were intended to be used in the manufacture of clocks, should be classified as “articles of glass, cut, engraved,” etc., or as “parts of clocks.” In its statement of the case the Supreme Court observed in part:
* * *. The court below, after instructing the jury that the burden was upon the plaintiff to establish by a preponderance of evidence that the articles were •parts of clocks, laid down the following rule by which they were to determine whether the glass was to be so considered:
“In determining this question, whether or not these articles are parts of clocks, it will not be necessary for you to say that they were exclusively used for that purpose. An article may be chiefly used for a certain purpose and be diverted from its principal use; somebody may put it to a purpose for which it was not originally intended. That could not, in my judgment, change its tariff nomenclature. * * * And so I will say to you, as the law of the case, as I understand it, that if you find that these articles were chiefly used as parts of clocks, that would' determine their tariff classification. But it is entirely clear, upon the other hand, that they must be chiefly and principally used for that purpose. If they are articles, all, or one or more, as the case may be, which have no distinguishing characteristics, which are just as applicable for use in fancy boyes or in coach • lamps as they are for clocks, just as applicable to the one use as to the other, then it would be entirely proper to say that they have no distinguishing characteristics as .parts of clocks. They might be used for one purpose just as well as for another. And if you find as to those articles, or any of them, that they have several uses to which they are perfectly applicable, then as to those articles your verdict should be for the defendant.” [Italics supplied.]
The Supreme Court concluded its opinion by stating that the charge to the jury “was manifestly correct,” and affirmed the judgment of the lower court, sustaining the claim that the articles were “parts of clocks.”
*109I am satisfied that the Willoughby case clearly stands for the proposition that for an article to be legally a part, of something else it must be established that it is chiefly used as an integral, constituent, ■or component part without which the article to which it is to be .joined, could not function as such article.
In the case before the court there is undisputed testimony of the vice president and general manager of the plaintiff corporation that “this spiral heat exchanger has been applied in almost all chemical industries, principally, however, in the pulp industry and sugar industry, and by some in the sulphuric acid industry.”
The mere fact that the article may be used “principally” in the pulp and sugar industries is no evidence at all of its chief use in either one of such industries. It is a matter of no particular consequence that the imported heat exchanger now before the court may have been used in connection with a pulp-making machine. The important question is what is the chief use of heat exchangers of this type. United States v. F. W. Myers & Co., Inc., 24 C. C. P. A. (Customs) 464, T. D. 48913, and United States v. Swift & Co., 14 Ct. Cust. Appls. 222, T. D. 41706.
It becomes at once apparent that if the imported article were to be classified as a “part” without considering its chief use, absurd results would follow such classification. For instance, the present case illustrates how a heat exchanger might be classified at one port at the rate of 20 per centum ad valorem under paragraph 372, as amended, supra, as a part of a machine for making paper pulp, while the same article imported at another port might be classified free of duty as a “part” of “machinery for use in the manufacture of sugar” under paragraph 1604 of the Tariff Act of 1930. It is to avoid such anomalies that the rule of chief use as an integral, constituent, and component part, as laid down in the Willoughby case, should be applied. Indeed, from a grammatical viewpoint the provision for “Machines for making paper pulp or paper” is not unlike the one covering “machinery for use in the manufacture of sugar” in said paragraph 1604. Ijudicially enunciating the classification test applicable to the latter paragraph, our appellate court, in United States v. Boker & Co., 6 Ct. Cust. Appls. 243, T. D. 35472, said:
All these considerations imply and necessitate that the use of the implement must determine its classification whether or not an agricultural implement within the paragraph, and that that use, and the determinative fact, is chief use. [Italics supplied.]
That rule is so well established and of such frequent reiteration by the courts that its suggestion seems sufficient. This court affirmed and applied the rule as to “smokers’ articles” in Knauth v. United States (1 Ct. Cust. Appls., 334; T. D. 31432); as to “wire rods,” in Athenia Steel & Wire Co. v. United States (1 Ct. Cust. Appls., 494; T. D. 31528); applied it in Drakenfeld & Co. v. United States (2 Ct. Cust. Appls., 512; T. D. 32248); adopted it as to “jute manufacturing machinery” in United States v. Hempstead & Son (3 Ct. Cust. Appls., 436; *110T. D. 33004), and as to “philosophical and scientific instruments,” etc., in United States v. Kastor & Bros. (6 Ct. Cust. Appls., 52; T. D. 35323). In fact no principle is more firmly established in customs adjudication. Magone v. Wiederer (159 U. S., 555); Magone v. Heller (150 U. S., 70); Cadwalader v. Wanamaker (149 U. S., 532); Walker v. Seeberger (149 U. S., 541); Chew Hing Lung v. Wise (176 U. S., 156); Meyer v. Cadwalader (89 Fed., 963); Smith v. United States (93 Fed., 194).
In my opinion, therefore, the decision of the collector of customs herein should be affirmed.