CONCURRING OPINION
Molltson, Judge:I concur in the action of my colleagues granting a rehearing in this case, but inasmuch as I believe that the issues raised by the motion for rehearing and by the memorandum offered in opposition to the motion should be discussed and determined, I wish to record my own views in the matter.
The vacating and setting aside of the judgment and the submission in this case is sought for the purpose of permitting the plaintiffs to apply for leave to amend the protest to conform to the evidence. By our decision, reported as Shell Oil Co , Inc., and A. W. Salter & Co., Inc. v. United States, 30 Cust. Ct. 180, C. D. 1517, we have held that the evidence warrants a judgment establishing the correct classification of the merchandise to be under paragraph 1558 of the Tariff Act of 1930, so that the basic requirements for the extension of the relief sought are present and present a clear case for the application of the discretionary judicial power contained in 28 U. S. C. § 2640 and rule 6 of the rules of this court.
The memorandum offered in opposition to the motion is based upon two grounds: (1) That the plaintiffs are guilty of laches “in waiting until thirty days after the entry of judgment to even express an intention to make such a motion [to amend the protest]” and (2) that such a motion to amend would set up a new cause of action resulting in a new trial upon an issue not presented to the court and upon which new evidence might be necessary.
I fail to see how the body of law with relation to laches has any application to the situation in this case. Laches implies not only negligent, unnecessary, and unexplained delay in the performance of an act which should be done, but some element of inequity or prejudice to the adverse party if the act were permitted to be done. Mere lapse of time alone does not constitute laches. The defendant has not stated or shown that it will be prejudiced if the motion were granted. I find no lack of diligence evidenced by the lapse of 30 days between the discovery that paragraph 1558 was applicable to the merchandise and the filing of the instant motion.
The case cited by counsel for the defendant in the memorandum in opposition to the motion, Adkins et al. v. E. I. Du Pont De Nemours & Co., Inc., et al., 176 F. 2d 661, merely states the well-settled principle that—
* * * Amendments, after judgment, rest in the sound discretion of the trial court and may be properly denied when the moving party has been guilty of delay.
The cases cited in a footnote keyed to the last statement show the widespread acceptance of the principle, and at least.two of them, Baker v. Barber Asphalt Paving Co., 92 F. 117, and Alder v. Drudis (Cal. App.), 170 P. 2d 515, were cases where appellate courts refused to hold that the actions of trial courts in allowing *440amendments to conform to the proof after verdict or judgment were abuses 01 discretion. It seems to be universally accepted that trial courts have great latitude in the matter, so long as the allowance of the amendment does not affect the substantial rights of the adverse party.
No such rights would be invaded by the granting of the present motion or of the motion to amend contemplated by the plaintiffs. It is urged by the defendant herein that such an amendment would set up a new cause of action upon an issue not presented to the court.
Whether one follows the majority view or the minority view, the decision of the Court of Customs and Patent Appeals in the case of United States v. Macksoud Importing Co. et al., 25 C. C. P. A. (Customs) 44, T. D. 49041, is a complete answer to the defendant’s contentions. Under the majority view in that case, so long as a proposed amendment relates to the merchandise originally covered by the protest, it is permissible, no matter what issue it seeks to raise. The majority conclusion, that when Congress provided for amendments to protests after this court had obtained jurisdiction of them it did not intend such amendments to be considered new and separate causes of action so long as they related to the merchandise covered by the protest, is supported in a well-documented and reasoned opinion.
The minority conclusion, represented by the dissenting opinion of the late Judge Lenroot, in a very convincing fashion, takes a narrower view, but one which would, nevertheless, permit the amendment contemplated in this case. Judge Lenroot would bar new causes of action sought to be included by amendment to the protest and analyzes the meaning of “cause of action” in connection with this jurisdiction as follows:
The cause of action set out in the protests herein was for the refund of money to the importer arising out of alleged improper classification of merchandise. The merchandise was not the cause of action, but its classification by the collector. In order for the importer to prevail it was necessary for him, first, to establish that the classification made by the collector was wrong, and second, that the classification claimed in his protest was right. The cause of action was the claimed improper classification by the collector. In my opinion an amendment to a protest setting up an alternative claim to classification under a paragraph not claimed in the original protest would not be a new cause of action, but would merely affect the amount of recovery claimed under the original cause of action, to wit, the classification of the merchandise by the collector. [Italics added.]
The sole issue raised by the protest at bar was the classification of the imported merchandise, to wit, “Teepol,” covered by the entries enumerated therein. Under both the majority and minority views of the Macksoud case, supra, the defendant had notice that the action of the collector with respect to the classification of that merchandise was in controversy, and, consequently, would not be prejudiced by the addition of an additional claim respecting that action.
I do not believe that at this late stage of jurisprudence anyone denies the existence of the discretionary power in the Court to permit an amendment to a protest, even after judgment, when the interests of justice so require. Certainly, I do not find any such suggestion in the memorandum filed on behalf of the defendant in opposition to the present motion.
See also in this connection the interesting legislative history of the provision in the Tariff Act of 1930 which authorized this court to permit the amendment of protests set forth in the majority opinion in the Macksoud case, supra, which quotes a report of the Committee on Ways and Means of the House of Representatives indicating it was the intent to permit amendment at any time.
As pointed out in the order herein, although the defendant took the position at the time of trial that “All our defenses are consistent with the classification that the merchandise is an ester,” it now asks permission to introduce evidence, if the *441motion for rehearing is granted, the inference being that such evidence would tend to support some classification other than that made by the collector.
I, therefore, join in the order setting aside the judgment heretofore rendered and granting a rehearing for all purposes.