CONCURRING OPINION
Nichols, Judge:I cannot agree entirely with either of the opinions of the division’s regular members in this case.
The record shows that the collector classified under paragraph 212 by similitude, but whether similitude of use does not appear. We cannot presume it was.
I do not think counsel, by limitations in the proof offered, can bar us from taking judicial notice of what is open and obvious to us in our daily lives, not requiring technical knowledge or explanation. We know, judicially, that toilet roll holders are made of several materials, and that their use is virtually identical, of whatever material they are made. Compare Maher-App & Company v. United States, 44 CCPA 22, 27, C.A.D. 630 (in which it is judicially noticed that artificial teeth, all similar in use, are made from porcelain, gold, enamel, and ivory, as well as plastic). Acc: Torch Rubier Co., Inc. v. United States, 41 Cust. Ct. 161, C.D. 2035.
Thus, the first part of amended paragraph 1559 must be held inapplicable. There is no dutiable article which the imported merchandise most resembles as to use. There are only several which it equally resembles in that particular. The case is like Ignaz Strauss & Co., *28Inc., et al. v. United States, 45 Cust. Ct. 161, C. D. 2218; Chong Kee Jan Co., Inc., et al. v. United States, 48 Cust. Ct. 439, Abstract 66728; and Border Brokerage Co. v. United States, 51 Cust. Ct. 247, Abstract 68090. In tírese cases, all decided under the new language, a supposed, stipulated, or established equal resemblance to the imported article, not closer than that here involved, in the use of articles, of two or more different materials, was held to require classification according to that article which the import most resembled as to material.
The record shows the import is organic, combustible, soluble in several solvents, and is the plastic known as styrene. Porcelain is inorganic, noncombustible, and insoluble. The exclusionary clause in paragraph 212 requires an article classified under that paragraph to consist of a vitreous nonabsorbent body which when broken shows a vitreous or semivitreous fracture. It is conceded the import does not meet this test.
If the import most resembled porcelain as to use, that is, were used more as a porcelain toilet roll holder is used, than as a holder of any other material is (Ignaz Strauss & Co., Inc. v. United States, supra), then we would squarely confront the question whether, under Maher-App, supra, the exclusionary clause was applicable. But the whole argument for its inapplicability rests on the proposition that, in a classification under paragraph 212 by similitude only of use, a statutory specification or exclusion as to material cannot control. Manifestly, this argument fails when, as I have shown, is the case here, the invocation of paragraph 212 has to rest on similitude of material. I think the issue whether Maher-App, supra, applies to similitude of use under the new law can be saved for another case when it arises. When a classification by similitude depends on similitude as to material, Maher-App clearly applies in all its force. Actually, the case for application of the exclusionary clause is stronger here than there. The court, in Maher-App, supra, might understandably have been in doubt whether similitude of material was a factor or not. The then statute made the factors disjunctive: “similar either in material, quality, texture, or the use * * [Italics supplied.] The Government argued that if use was selected as controlling, material was made of no account. But here, this cannot be said if I have applied the new statute to the facts correctly. Use being equal among contending paragraphs, material is decisive.
Hence, I would hold that the collector’s classification under paragraph 212 is of necessity wrong, whether he classified by similitude of use or similitude of material.
I note that the second division, in New York Merchandise Co., Inc. v. United States, 54 Cust. Ct. 199, C.D. 2533, decided April 28, 1965, *29holds that, under the amended paragraph 1559, exclusionary language is effective to prevent classification by similitude in use. They also rejected another claimed similitude for lack of evidence. There does not seem to have been any question of two or more articles being equally similar as to use, and, therefore, similitude of material did not come into contention. Since their case differs so from that which we have at bar, it is not necessary to consider whether we agree or disagree with the conclusions of law the second division arrived at. Their opinion seems carefully considered, and I would not go out of my way to discredit it.
Having rejected paragraph 212 as controlling the classification, we turn to the ultimate disposition of the case. Maher-App, supra, here supplies a puzzling factor. The court at the end of its opinion noted the several similitudes possible for plastic teeth. It reversed, and remanded for further proceedings by us consistent with its views. These “further proceedings” appear by our records to have been a simple sustaining of the protests and a holding that the merchandise is dutiable under paragraph 1558. I find it difficult to consider this as a proceeding consistent with the views of our appellate court, for the existence of possible similitudes such as the court pointed out, would need to be refuted before paragraph 1558 was properly applicable.
At any rate, the case before us is distinguishable in that here the existence of possible similitude classifications other than under paragraph 212 is before us by protest claims which have not been abandoned, if they have not been pressed. This was not true in Maher-App, supra.
In some cases, possible similitude may be established or refuted by facts of which we can take judicial notice. However, the selection among articles, all identical as to use, to find the merchandise most resembling that before us as to material, would seem usually to require evidence. Such evidence being lacking, the plaintiff must be held not to have sustained its burden of establishing what classification is correct. It cannot properly obtain paragraph 1558 classification without refuting our supposition that valid similitudes exist. Accordingly, I would overrule the protest, without affirming the collector’s classification.