DISSENTING OPINION
Richardson, Judge:I agree with my colleagues that plastic toilet roll holders are not properly classifiable under paragraph 212, Tariff Act of 1930, as modified, by virtue of the similitude clause in paragraph 1559, as amended. The language of paragraph 212 excludes *30merchandise which does not show, as the imported merchandise does not, a vitrified or vitreous or semivitrified or semivitreous fracture, even though the similitude relied upon is that of use. Maker-App & Company v. United States, 44 CCPA 22, C.A.D. 630; S. S. Kresge Co. et al. v. United States, 46 CCPA 100, C.A.D. 707.
* * * No application oí the similitude statute can put it into a classification from which it is expressly excluded. [Cresca Co. (Inc.) et al. v. United States, 17 CCPA 83, at p. 85, T.D. 43376.]
In the recent case of A. L. Erlanger Co., Inc. v. United States, 51 CCPA 51, C.A.D. 836, the court of appeals held that where an article is excluded by statutory definition from classification by similitude to the article which it most nearly resembles in fact, it is classifiable by similitude to the article which it next most nearly resembles. In that case, the merchandise consisted of perlón (nylon) staple fiber and most resembled in material, quality, texture, or use filaments of rayon, known as staple fiber, provided for in paragraph 1302 of the Tariff Act of 1930, as modified. However, it was precluded from classification thereunder by reason of the definition of synthetic textiles in paragraph 1313 of said tariff act. It was stipulated that the merchandise next most nearly resembled silk, partially manufactured, not twisted or spun, as provided for in paragraph 1201 of said tariff act. The merchandise was, therefore, held subject to duty under said paragraph 1201, by virtue of the similitude clause in paragraph 1559. The court stated:
We are persuaded tfiat tlie apposite decided cases support -the proposition itbat where, as here, the article is virtually identical in fact to the articles (Classified in paragraph 1302 but excluded by statutory definition from that ■paragraph, the similitude provision is not thereby bereft of vitality. The article ■Which the imported merchandise next most nearly resembles in fact, not precluded Iby 'restrictive statutory definition, becomes the article which the imported merchandise “most” resembles for purposes of the similitude provision of the statute.
'Therefore, in the instant case, inquiry must be made as to whether the imported merchandise resembles articles other than porcelain ’before resort can be had to classification under the provisions for unenumerated articles. Bartley Bros. & Hall et al. v. United States, 3 Ct. Cust. Appls. 363, T.D. 32961; Robins v. United States, 1 Ct. Cust. Appls. 252, T.D. 31278; Johnson & Co. v. United States, 10 Ct. Cust. Appls. 54, T.D. 38333; Isler & Guye v. United States, 11 Ct. Cust. Appls. 340, T.D. 39146.
In the instant case, there has been no evidence introduced to .prove that the toilet roll holders should be classified by similitude to merchandise under some paragraph of the tariff act, other than paragraph :212, the paragraph used by the collector, and the plaintiff has over*31come the presumption of correctness attaching to the findings of the collector under paragraph 212, so if these were all of the facts I would be inclined to follow the decision in Salentine & Company, Inc. v. United States, 46 Cust. Ct. 357, Abstract 65216, and enter judgment for the plaintiff under paragraph 1558. However, plaintiff did not rest its claim under paragraph 1558 only. It also claimed, in the alternative, 17 per centum under paragraph 31, as modified, by similitude to articles of cellulose acetate, or at 19 per centum under paragraph 397, as modified, by similitude to metal articles, and it was stated at the trial “we are not abandoning any other claim in the protest.”
Ordinarily, I would dismiss these alternative claims since no evidence was introduced to support them, but in view of the plaintiff’s position that “we are not abandoning any other claim in the protest,” and the language of paragraph 1559 which states that “‘Each and every imported article, not enumerated in this chapter, which is similar in the use to which it may be applied to any article enumerated in this chapter as chargeable with duty, shall be subject to the same rate of duty as the enumerated article which it most resembles in the particular before mentioned * * *” [emphasis added], I feel we cannot eliminate paragraphs 31 and 397 from consideration in deciding the case.
As there has been no evidence and I am not informed of an end product of cellulose acetate which resembles the subject merchandise in use, the subject merchandise cannot be classified under paragraph 31. On the other hand, it is a matter of common knowledge that toilet roll holders are made of various materials, including metal (embraced in paragraph 397), as well as porcelain and plastic. The court may take judicial notice of a fact that is a matter of common knowledge, Torch Rubber Co., Inc. v. United States, 41 Cust. Ct. 161, C.D. 2035; Samuel Shapiro & Co., Inc. v. United States, 20 Cust. Ct. 41, C.D. 1081, and the court should take judicial notice of the fact that plastic toilet roll holders do resemble in use toilet roll holders of metal, and sustain the plaintiff’s claim for classification by similitude of use under paragraph 397. Plaintiff’s claims for classification under paragraphs 31 and 1558 should be overruled.
Since my two colleagues do not share my views as to judicial notice and are of the opinion that the protest should be overruled on each claim for relief, but entertain divergent reasons for their conclusion, and the equities appear to me to be with the plaintiff, I feel a just determination of the litigation may best be had by restoring the case to the calendar for the purpose of enabling plaintiff to introduce evidence under paragraph 31 or paragraph 397.