DISSENTING OPINION
Cline, Judge:I regretfully dissent from the decision of majority in this case.
The issue in this case involves the classification of merchandise known as peanut acid oil. According to one of plaintiff’s witnesses, it is derived from crude peanut oil as follows:
Crude peanut oil is neutralized by adding a basic solution in order to produce in this way an edible oil from crude oil. How this neutralized oil is further worked has no bearing on this suit. The remaining fatty acids, bound to a part lye and neutral oil, settle on the bottom of the neutralizing tank. By adding sulfuric acid, the lye is neutralized and in this way a useful fatty acid '(acid oil) remains.
Dr. McSorley, a witness for the defendant, elaborated on the process. He stated that after neutralization of the free fatty acids in the crude peanut oil by the addition of a basic solution, the material is agitated, then allowed to settle. A substance known as foots or sludge or peanut oil soap stock, consisting of an alkali salt of the free fatty acids in water solution, settles at the bottom and the refined oil remains at the top. The next step is to draw the refined oil off from the top or to draw the soap stock from the bottom. The refined oil may be filtered through bone black or fuller’s earth to lighten it in color. The foots or soap stock is treated with sulphuric acid which decomposes it and the fatty acids rise to the top and at the bottom is a water solution of sodium sulphate, sodium chloride, salts, and impurities. These fatty acids or peanut acid oil are then withdrawn and used in making soap or esters.
*193To summarize, an alkaline solution, for instance, sodium hydroxide, is added to crude peanut oil (which contains fatty acids) making refined peanut oil and peanut oil soap stock (containing fatty acid salts). To the peanut oil soap stock is added sulphuric acid making peanut acid oil (or fatty acids) and a water solution of sodium sulphate, sodium chloride, salts, and impurities.
According to the testimony, crude peanut oil may be refined to make an edible peanut oil, may be sulphonated to make a sulphonated oil, and may be used in a variety of commercial processes. Refined peanut oil is an article of food. Free fatty acids are used in the manufacture of soap or in making esters.
The evidence shows that about 5 per centum of free fatty acids are naturally present in crude peanut oil and that they cannot be separated physically from the oil by any ordinary means. Dr. Seil testified that the separated free fatty acids are the same as those that occur naturally except that they contain impurities. On the other hand, Dr. McSorley testified that the free fatty acids obtained were not identical with those occurring naturally because in the process of separation the hydrogen ion of the original free fatty acids combines with the hydrogen ion of the sodium hydroxide to form water; that the fatty acid radical combines with the sodium to form a salt; that when sulphuric acid is added, the hydrogen from the sulphuric acid combines with the fatty acid and the sodium combines with the sulphuric acid radical to form sodium sulphate. He based his conclusion on the ground that the water solution had nothing to do with the reaction and that no reaction took place until the sul-phuric acid was added. Although the witness could not actually identify the hydrogen ion in the final product, from his knowledge of chemistry and from the fact that a reaction occurred immediately upon the addition of sulphuric acid, he believed the hydrogen in the final fatty acid was the hydrogen from sulphuric acid.
Plaintiff claims that the chemical process here involved has merely separated peanut acid oil from its native condition and that therefore it is an unmanufactured article. I am unable to agree with this contention. In view of the uncontradicted testimony of Dr. McSorley and the fact that two chemical reactions have taken place, it does not seem likely that the final product is identical with the free fatty acid occurring in the crude peanut oil. In all probability, some, if not all, of the hydrogen in the original acid has combined with hydroxyl to form water, and the hydrogen from the sulphuric acid has been substituted in the final product. Where an equivalent product is obtained, it cannot be said that the process is merely one of separating something from its surrounding tissue.
In United States v. Half Moon Manufacturing & Trading Co., 24 C. C. P. A. 232, T. D. 48668, the imported merchandise consisted of *194vegetable albumen obtained from wheat flour. The court found that the chief constituents of wheat flour were “starch, gluten, water, fat, and ash” and that the vegetable albumen involved was gluten. It was obtained by mixing wheat flour with water, kneading it, and washing out the starch in a washing machine. The protein remaining in the machine was afterwards dried and ground and sold as vegetable albumen. The court held that the purpose of the process was to separate starch and gluten; that neither had all the qualities of wheat flour, but each had some of them; and that the merchandise was a manufactured article.
In the instant case, the purpose of the process was to separate the refined peanut oil from the fatty acids or peanut acid oil, each of which has some of the qualities of crude peanut oil. The fatty acids are constituents of crude peanut oil even as gluten is a constituent of wheat. If gluten is to be regarded as a manufactured article upon extraction from wheat flour by a physical process, fatty acids obtained from crude peanut oil by a chemical process must also be regarded &s manufactured.
It is to be noted also that the products obtained from crude peanut oil — refined peanut oil and fatty acids — have different uses from the original substance and different uses from each other. Where an article has been so changed or advanced in condition from what it was before processing that it has attained a distinctive name, character, or use, it is a manufacture. Ishimitsu v. United States, 11 Ct. Cust. Appls. 186, T. D. 38963.
In United States v. W. H. & L. D. Betz, 30 C. C. P. A. 16, C. A. D. 208, it was held that Norgine F, a commodity processed from seaweed with sulphuric acid and muriatic acid and neutralized with soda, was a manufacture of seaweeds. The court said (p. 23):
It clearly appears from the evidence of record that the involved Norgine F has been produced by both chemical and physical processes of manufacture; that it has attained a distinctive name and character, different from that possessed by the seaweeds from which it was produced; that, although it is a material from which alginic acid may be obtained, it is, nevertheless, a completed article of commerce, having but one use or class of uses; and that it is not commercially capable of the various uses to which seaweeds may be put.
I do not believe it is correct to say that the merchandise is an unsought byproduct or that the further treatment of the soap stock was not for the purpose of manufacturing it into a valuable product. The first chemical reaction was sufficient to obtain the refined peanut oil and the residue could have been discarded or sold as soap stock, had not a further product, peanut acid oil, been desired.
For these reasons, I believe the new article of commerce obtained through a second chemical reaction is dutiable as a nonenumerated manufactured article. The protest should be overruled and judgment rendered in favor of the defendant.