CONCURRING OPINION
Donlon, Judge:I arrive at the same decision as my esteemed colleagues; but I wish briefly to state certain reservations I have with respect to the majority opinion.
I agree that a man, in establishing his rights, is not required to do that which it is legally impossible for him to do under the circumstances. I, therefore, do not hold the view that this protest, under the circumstances stipulated, could be overruled on the “technical” ground that plaintiff did not timely request permission to destroy this tobacco waste under customs supervision. We have already held (Henry Clay & Bock & Co., Ltd. v. United States, 38 Cust. Ct. 489, Abstract 60715) that a claim for refund made before waste is destroyed is premature.
*170In niy view of the law, sections 1557(c) and 1558(a) (3) authorize the remission or refund, as may be appropriate, of duty on merchandise (or articles, as in section 1558) which are entered in bond under any provision of law. Tobacco was entered by plaintiff in bond under a provision of law, namely, section 1311. Plaintiff’s difficulty is that the merchandise (or article) which has been destroyed, and for which refund is claimed, is not the merchandise (or article) which was imported. What was destroyed is not the imported tobacco, but a byproduct of the process of manufacturing the imported tobacco.
I associate myself with the views expressed by my colleagues to that extent. This is why plaintiff cannot prevail under sections 1557 and 1558; and not because of any inconsistency between those sections and the provisions of section 1311.