DISSENTING OPINION
Donlon, Judge:I do not concur in the decision of the majority.
The trial record and briefs filed in this case are confused by considerations extraneous to the issues raised by the pleadings.
There is no issue before us as to penalty. There is no issue before us as to forfeiture of the plane. The only issue before us is what are the “regular duties” that are properly assessable on the facts of record. Are they duties on the American plane itself as repaired abroad, or duties solely on the value of the foreign repairs?
Delayed formal entry having been authorized, no disability as to dutiable status arises by reason of the lateness of the permitted entry filing. Entry pursuant|to*the Commissioner’s permit is valid entry.
It should be noted that this aircraft, one of domestic manufacture, is entitled to free entry on proof of domestic status adduced by certificate of registration, whether section 10.42 or section 10.8 applies, provided there is the requisite showing of good faith if it is found, as the majority holds, that section 10.8 is applicable. If section 10.42 applies, as I hold, there is no need to explore the subsidiary issue as to good faith. The certificate of registration is permissible proof of domestic origin in a case that falls within the scope of section 10.42.
*55It is well settled that a specific provision of the tariff law or customs regulations will prevail in competition with a general provision. It is not necessary to cite authorities in support of this principle. The competition here is between a section of the regulations that particularly deals with foreign repairs to aircraft taken abroad “for noncommercial use” (sec. 10.42) and a general provision as to “articles” sent abroad to be repaired or altered (sec. 10.8).
Defendant argues that plaintiff’s airplane was not used noncom-mercially in its flight to Canada. Certainly, the airplane was used, and there is no evidence that this use, either on the flight to or from Canada, was to carry cargo or passengers, concededly commercial uses, in which event provisions other than either section 10.42 or section 10.8 would apply. On the facts before us, it is clear that plaintiff’s plane was in use as aircraft when it was flown to Canada under its own power and when it was flown back under its own power from Canada to the United States, and that this use was noncommercial.
Section 10.42 (c) provides, as plaintiff contends, that “the certificate of registration issued by the Department of Commerce for an aircraft * * * may be accepted under the same conditions as, and in lieu of, customs Form 4455 and be given the same force and effect.”
The original of the certificate of registration of this airplane was exhibited to the collector at the time entry was made, and a photostatic copy was filed with the entry (R. p. 8). There is no room for objection that the original certificate of registration of the airplane was not left with the collector. Indeed, no such objection is made.
There remains for consideration whether the word “may” in section 10.42 (c), above quoted, required the collector, on the facts of record, to recognize the alternative proof of domestic origin therein provided, namely, a certificate of registration, issued by the Department of Commerce; or whether the word “may” permitted him, in his discretion, to disregard such proof and proceed to assess duty without giving weight to the permitted proof of domestic origin of the plane.
We recently considered this subject in J. Goldenberg et al. v. United States, 36 Cust. Ct. 172, C. D. 1771, from which I quote as follows:
* * * In Supervisors Rook Island Co. v. United States ex. rel. State Bank, 71 U. S. 435, 18 L. ed. 419, the United States Supreme Court construed statutory language which provided that certain officers “may, if deemed advisable, levy a special tax * * Holding that the statute, though permissive in form, was in fact peremptory, the Supreme Court in its opinion, on pages 446, 447, stated:
The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language — whenever the public interest or individual rights call for its exercise — the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be *56done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.
In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose “a positive and absolute duty.”
The same proposition is stated by the Pennsylvania Supreme Court in the case In re Fisher, 23 Atlantic (2d) 878, at page 879, as follows:
As the purpose to be achieved by this statute is a public one and by it power is given to public officers which affects the rights of third persons the word “may” is to be read “shall.” * * * Moreover, to reach a conclusion as to constitutionality the word “may” in a statute is to be read “shall” if such reading leads to constitutionality. 59 C. J. 1082, and cases cited.
It is not to be presumed that the Congress intended to give to executive officers an unconstitutional privilege of selecting at whim those who, having met the statutory conditions, “may” be taxed. The legislative choice of the word “may” is compatible with a clearly constitutional construction, namely, that all those within the class will have duties either remitted or refunded, as “may” be appropriate in each case.
It should again be noted that there is no doubt that this plane was of domestic origin, nor that permitted proof of domestic registration was tendered. The sole question is whether the collector was warranted in ignoring this proof and assessing duty on the plane without regard thereto. I am of opinion the proof filed with the entry brought this plaintiff within the class of those required to pay duty only on the foreign repairs or alterations.
If section 10.42 applies, it is not necessary to consider section 10.8. This is not to decide either that the plaintiff is or is not blameless in the matter of entry. As noted earlier, that is an issue which is not before us. It was before the Commissioner and the Acting Secretary of the Treasury in the penalty and forfeiture proceeding, and we have no right or need to review their decision. Late entry was expressly permitted. Such entry was made. We are called upon to decide only what are the regular duties plaintiff is required, by law, to pay.
The protest should be sustained and judgment entered for plaintiff.