CON CTJRRIN G OPINION
Johnson, Judge:I am in agreement that the protest herein should be dismissed. However, since, as written, it is against a collector’s decision denying payment of a refund of duty due on destruction of tobacco wastes and is in form the same as that in Henry Clay and Bock & Co., Ltd, v. United States, 41 C. C. P. A. (Customs) 45, C. A. D. 527, I am of opinion that some further statement is appropriate.
The protest is headed:
He: Application for refund of duty on certain stems and wastes produced and destroyed under Customs supervision in Class #6 Bonded Manufacturing Warehouse of Henry Clay & Bock & Co., Ltd. for the period 3/1/48 to 3/31/48
Application filed 2/25/48
The body thereof states:
We protest herewith against your decision of February 25th, 1948, denying the payment of refund of duty due on the destruction, in lieu of exportation, of stems and various tobacco wastes produced in our class #6 Bonded Manufacturing Warehouse under the provisions of Section 557 of the Tariff Act of 1930.
An examination of the record in Henry Clay and Bock & Co., Ltd. v. United States, supra, incorporated herein, and the facts pertaining to this case indicates the following significant differences:
In the incorporated case, the application for permission to destroy the tobacco wastes was granted by the collector and the wastes were destroyed under customs supervision. The storekeeper of the warehouse in which the wastes were incurred certified the kinds which had been destroyed and the weight of each. Thereafter, an “Abstract of Manufacturing Records and Entry for Refund of Duty” was filed, and the collector denied the request for a refund of duty, pursuant to instructions of the Secretary of the Treasury. It was against that decision of the collector that the protest was filed.
In the instant case, the application for permission to destroy the tobacco wastes under customs supervision was denied by the collector on February 25, 1948. During March 1948, the tobacco wastes were destroyed, but not under customs supervision. The protest herein was filed on March 17, 1948, but it does not appear whether the wastes had been destroyed by then or not. It is clear, however, that they had not been destroyed on February 25, 1948, and that the plaintiff could not have been entitled to any refund at that time. Therefore, if, as the protest indicates, the collector’s decision of February 25, 1948, denied payment of a refund of duty, it was proper, since, under no theory of the case, could a refund have been due prior to the destruction of the tobacco wastes.
*492While the collector’s decision of February 25, 1948, is not in evidence, the parties have apparently regarded it as a decision or statement that “no allowance would be made for such tobacco waste” when destroyed. (See defendant’s brief, p. 2.) It may be that plaintiff considered the filing of an abstract of its manufacturing records and entry for refund of duty a futile act, in that the collector would have refused to grant a refund, anyway. However, since the collector’s denial of a refund before the destruction of the merchandise was clearly proper, the filing of an abstract of manufacturing records and an application for a refund after the destruction of the merchandise was necessary not only to advise the collector of the weight and kinds of tobacco wastes destroyed and the specific claim made but also to permit him to grant or deny an actual claim, rather than to make a declaratory statement that he would deny a claim when and if presented.
In my view, plaintiff’s case could not be perfected until the tobacco wastes had been destroyed, a claim for refund of duties on the amounts actually destroyed presented, and said claim denied by the collector. A protest against a collector’s decision rendered before these events could have occurred is premature and must be dismissed.