DISSENTING OPINION
Cline, Judge:I regret that I am unable to agree that the merchandise involved therein consists of screenings and nothing more.
The merchandise was invoiced and entered as “barley bran” and was assessed ■with duty at 20 per centum ad valorem under paragraph 1558 of the Tariff Act of 1930 as an unenumerated manufactured article. It is claimed to be properly •dutiable at 5 per centum ad valorem under paragraph 731, as modified by the •trade agreement with Canada, T. D. 49752, or at 7}{ per centum ad valorem under paragraph 1555, as modified by said trade agreement.
It appears from the evidence that when barley first arrived at the processing jplant it was cleaned and the cleaned barley was used in the manufacture of malt. During the course of manufacture, malt sprouts were produced and were subsequently cleaned out of the malt. Thereafter, they were mixed with the foreign ■material which had already been screened from the barley in a ratio of one-third sprouts to two-thirds barley screenings and the two commodities were ground up together. This ground mixture is the imported merchandise.
According to the record, the merchandise was produced by the same manufacturer who produced that involved in Ralph Boone v. United States, 19 Cust. Ct. 62, C. D. 1068. In that case it appeared that the mixture contained 3 to 5 per centum barley sprouts while the mixture here consists of one-third barley ■sprouts. In that case the mixture was held to be screenings. In the course of its •opinion the court said (p. 65):
Moreover, if the evidence before the court were conclusive that the sprouts per se were deliberately mixed with the barley screenings, then in such case the Government’s position might be tenable. But no such evidence appears of record. The evidence is conclusive that the sprouts were a part of the material screened from the malt in the cleaning process. Such material consisted of light grains, some hulls, dust, and sweepings, as well as the sprouts. The screenings from the malt were mixed with the screenings from the barley and both were ground together to produce the imported merchandise. Together they form the total foreign matter removed from grain or seeds. * * *
There does not seem to be any point in the Government’s contention that the ■commodity is something more than screenings. The mixing of the sprouts in the commodity was not a deliberate act of the processors and cannot be classed .as matter foreign to the screenings in question. Consequently the quantity of malt sprouts in the screenings is entirely immaterial.
In the instant case it appears that the malt sprouts were deliberately mixed with the barley screenings by the processors in a definite ratio. The holding in the Boone case, supra, is therefore not applicable.
The malt sprouts involved herein are not screenings in the generally accepted •sense. According to the testimony, they are produced when the cleaned barley is placed in germinating drums in the process of making malt. Screenings are generally understood to be the residue derived from the cleaning of grain by machinery in a grain elevator. James Richardson & Sons, Ltd. v. United States, 12 Cust. Ct. 6, C. D. 823; Consolidated Elevator Co. v. United States, 8 Ct. Cust. Appls. 267, T. D. 37536; Williamson v. United States, 8 Ct. Cust. Appls. 277, *238T. D. 37538. The malt sprouts were not a part of the grain when it was brought from the fields to the grain elevator. They were not derived from the cleaning of grain at that time but were produced later in the course of manufacturing malt. The mere fact that they were subsequently cleaned out of the malt does not make them screenings. Congress provided specifically for malt sprouts in paragraph 730 of the tariff act; therefore, it is apparent that they were considered to be a distinct commodity from screenings. They might be considered screenings or a part thereof in cases where they were a part of the foreign matter removed from the grain when it was cleaned in the grain elevator, but not when deliberately produced later.
Since the merchandise herein consists of screenings of barley mixed with malt sprouts and ground together, and since malt sprouts are a commodity distinct from screenings, the mixture is properly dutiable under paragraph 1558 as an unenumerated manufactured • article. For that reason the protest should be overruled.