*46DISSENTING OPINION
Cole, Judge:I dissent from the reasoning and conclusion of the majority because of tbeir application of tbe principle of “similitude,” which, is based on the statement “that we may take judicial notice that there is a similarity of material between natural cork in sheets and artificial, composition, or compressed cork in the forms for which provision is made in paragraph 1511, above quoted” (referring to that part of paragraph 1511 of the Tariff Act of 1930, providing for “cork, commonly or commercially known as artificial, composition, or compressed cork, in the rough and not further advanced than slabs, blocks, planks, rods, sticks, or similar forms”).
Such an application of the doctrine of judicial notice is going too far for me to follow. None of the cases cited in the majority opinion seem to support an interpretation of “judicial notice’Tike that applied herein.
The statutory terms “artificial,” “composition,” and “compressed” imply a processing or treatment to make a particular quality or grade of cork, contemplated by the restricted scope of the quoted provision of paragraph. 1511, sufra, and it is fair to say that such a product may be substantially different in material, quality, texture, and use from natural cork wood like the merchandise under consideration. Whether or not merchandise is classifiable as one of the kinds of cork included in the above-mentioned provision, is a matter of definite proof. Plaintiff made no attempt to make the said provision applicable. No evidence was directed thereto, nor was it argued in counsel’s brief. The question of judicial notice and classification under paragraph 1511, supra, by similitude, was not even remotely referred to in the testimony or in the briefs filed by the respective parties, but was injected for the first time in these proceedings by the majority opinion. The majority concede the absence of any proof on the matter of similitude by their language “There is no record evidence on this subject,” but then add “we are satisfied that we may take judicial notice of the facts with respect to at least one of the elements of similitude; namely, material.” It is with this view that I most earnestly differ.
United States v. Eckstein, 222 U. S. 130, 56 L. ed. 125, is cited by the majority to support the statement that “It is well-settled that a substantial similarity in one of the four elements named in the similitude provision is sufficient to support a classification by similitude.” Certainly, there can be no disagreement with this sound finding. It is significant to note, however, that in the Eckstein case, supra, the court, speaking through Mr. Chief Justice White, reviewed the record with respect to its content dealing with the statutory elements, i. e., material, quality, texture, and use controlling tariff classification by similitude, and drew its conclusion, holding “substantial statutory similitude between cotton yarns enumerated in paragraph 302 [Tariff Act of 1897] and the merchandise in question, both as to *47material and use,” from record evidence, on the subject. In the instant case, there is not a word of testimony dealing with any of the four elements of similitude. Consequently, there is nothing on which to base a similarity between the natural cork under consideration and the merchandise provided for in the provision of paragraph 1511, supra, invoked by the majority. As was stated in the brief for the Government in the Eckstein case, supra, quoted in the court’s opinion, “* * * ‘It is well established that the requirements of the similitude clause of section 7 are satisfied if there be shown a proper similarity in any one of the four particulars, material, quality, texture, or use,’ enumerated in the section.” [Italics mine.]
There is no dispute with the statement by the majority that “While the protest claim is not stated to be made under the similitude clause, nevertheless, this need not be pleaded. United States v. Rice & Company, 257 U. S. 536, 66 L. ed. 357.” In the said Rice case, the parties agreed that the merchandise was dutiable at the appropriate rate by similitude, the only issue before the court being whether the similitude provision need be specially pleaded in a protest. The importance of the cited case to the present discussion is in its conclusion to the effect that finding resemblance between a nonenumerated article and one specifically provided for, sufficient to justify application of the similitude provision, is a question of fact.
At this juncture, it is of real interest to examine cases wherein the Supreme Court of the United States discussed the question of similitude for tariff purposes. Two of the leading cases on the' subject are Herrman v. Arthur, 127 U. S. 363, and Murphy v. Arnson, 96 U. S. 131. In the former case, the court sustained a ruling of the lower court in admitting evidence on the question of similitude. The trial court did not take it upon itself to instruct the jury that similitude existed between the two classes of merchandise under consideration. If it had, there can be no doubt, from a reading of the decision of the Supreme Court, that there would have been a reversal, for the Court said “We are of opinion that the question of the similitude was one of fact, which should have been submitted to the jury, under proper instructions.” In that case, there was considerable evidence on the question of similitude so that the jury, or even the court sitting as a court and jury, could intelligently pass upon the question, instead of traveling into the realm of conjecture to do so.
The Murphy v. Arnson case, supra, found that the “nitrobenzole” there under consideration did not resemble an essential oil within any of the statutory elements controlling classification by similitude. In reaching its conclusion, the court did not state, as the majority opinion in the instant case might expect, i. e., that without direct testimony on the subject the court would, take judicial notice of what might have been offered in proof. On the contrary, the court very properly *48weighed the evidence and concluded that “there is no evidence that the compound resulting bore any similitude in material quality or texture to either of its original elements, nor is there any thing in the nature of the subject to require us to believe that such was the fact. The evidence of the use to which it might be applied scarcely warrants us in holding that there was a similitude in that respect.”
United States v. Downing, 201 U. S. 354, held merchandise to be classifiable by similitude as “carbons for electric lighting,” but based such finding on undisputed facts from the record showing the carbon sticks in question were exclusively used for electric lighting.
Arthur v. Fox, 108 U. S. 125, citing with approval Stuart v. Maxwell, 16 How. 150, favorably invoked the similitude provision and held certain “velours, composed of cow or calf hair, vegetable fibre, and cotton,” to be substantially like “a manufacture of goats’ hair and cotton which is enumerated.” The decision of the court was based on record evidence showing that the two classes of merchandise were used in the same manner, had the same appearance, frequently were called by the same name, and “are evidently of equal quality.”
My purpose in reviewing the foregoing cases is to draw a comparison between the position taken by the majority in the present case and the attitude of the Supreme Court in its discussion of the similitude provision. Here, the majority apply the doctrine of judicial notice to invoke the similitude provision and classify the instant merchandise under the provision in paragraph 1511, supra, covering merchandise of which the court has no familiarity and concerning which there is not a scintilla of evidence herein. In all of the cited cases, classification by similitude was adopted or rejected from evidence of record in each particular case. As the Court of Customs and Patent Appeals has said on several occasions, “Similitude is a question of fact to be established by the evidence.” (American Smelting & Refining Co. v. United States, 16 Ct. Cust. Appls. 46, T. D. 42718, and cases therein cited.)
I am in accord with the court’s finding with respect to the character of the present merchandise and agree that it is cork wood, manufactured, for which there is no tariff provision directly covering such merchandise. It is, therefore, properly classifiable under paragraph 1558 of the Tariff Act of 1930, as a nonenumerated manufactured article, dutiable at 20 per centum ad valorem, as alleged by plaintiff. That claim in the protest should be sustained.
The majority reason that before classification may be had under paragraph 1558 “it is required that the similitude provision found in paragraph 1559 be exhausted,” citing Isler & Guye v. United States, 11 Ct. Cust. Appls. 340, T. D. 39146. Said case, however, is authority for such procedure only where merchandise is “capable of classification” by similitude, a condition not disclosed by the record herein.