DISSENTING OPINION
BichaRdson, Judge:I dissent from the conclusion as well as from the separate views expressed by the majority in this case. In my opinion, reliquidation of the entry at bar is void because it was done in violation of the provisions of 19 U.S.C.A., section 1315(d).
It serves no useful purpose in this litigation to comment upon the subject of whether in fact there was an established and uniform practice in the classification of Shell Alexia A oil prior to the duty-free liquidation of the subject entry, as that issue has not been presented in the protest. And it would only serve to becloud the issue to discuss the procedural jockeying on the classification issue which both parties have indulged in since the advent of this court’s decision in Asiatic Petroleum Corp., et al. v. United States, 43 Cust. Ct. 252, C.D. 2131, 183 F. Supp. 275 (1959)—the decision that set into motion the duty-free status heretofore accorded the merchandise under the entry at bar as well as the merchandise under the entries described in exhibit 2 of the stipulation.
As both of my colleagues recognize the questions before us in the light of section 1315 (d) are (1) whether the Secretary of the Treasury made a finding of the existence of “an established and uniform practice” respecting the classification of Shell Alexia A oil prior to liquidation of the subject entry in conformity therewith, and (2) whether the determination which resulted in the reliquidation “dutiable” of the said entry was an administratwe rulmg imposing higher duties. There can be no question but that liquidation of the entry at bar “free of duty” by the collector at the port of New York was predicated upon the directive contained in exhibit 7 of the stipulation. And in my opinion, the directive of the Acting Commissioner of Customs in exhibit 7 is a finding by the Secretary of the Treasury of the existence of “an established and uniform practice” in the classification of Shell Alexia A oil within the meaning of section 1315(d).
The authority of the Secretary of the Treasury to make the finding contemplated under section 1315(d) is a delegable power. See T.D. 50192 and the statutes and executive order cited therein, and T.D.’s 52121, 53160, and 53654. In determining the existence of “an established and uniform practice” it is the function of the Commissioner of Customs, in the exercise of such delegated power, to weigh the evidence available and declare the result. This he indicates he did in his directive of February 5,1965 (exhibit 7) when he said “The Customs Bureau has given extensive consideration to the tariff treatment to be accorded unliquidated entries, made before August 31, 1963, *59which cover merchandise of the type which was the subject of C.D. 2137” before making his findings of “the existence of an established and uniform practice” as to the classification of Shell Alexia. A oil.
The only evidence submitted to this court for consideration is the stipulation of the parties and the documents the stipulation brought into the record, of which exhibit 7 is one. And there is no conclusion of law by the Commissioner shown on the record to be contrary to the specific facts found by him. We do not even know from the record in this case that the stipulated facts submitted to us are the same as the facts confronting the Commissioner at the time he issued exhibit 7. (It is of interest to note that the stipulation shows that of the various ports of entry around the country reported upon in exhibits 2 and 3 thereof with respect to the treatment of entries of Shell.Alexia A oil, only at the port of Mobile was there a continuation of the practice of liquidating entries of this merchandise “dutiable” following the decision of this court in C.D. 2137 and up until a new test case was selected by the Government.) Therefore, on the record in this case the substitution of the court’s judgment for that of the Commissioner is unwarranted. And in any event, the question of the correctness of the Secretary’s finding is not properly before us for review as Congress has entrusted this matter to the Secretary of the Treasury, and the court should not, therefore, 'attempt to substitute its judgment on the facts for that of the Secretary. Washington Handle Co. v. United States, 34 CCPA 80, 86, C.A.D. 346 (1946).
The fact that the Commissioner’s finding as expressed in exhibit 7 involved a “duty-free” determination rather than a “dutiable” determination does not, in my opinion, operate to remove this case from the application of section 1315(d) vis-a-vis the concept of “higher rate of duty” as used in that statute. When the term “higher rate of duty” is used in a comparative sense with respect to different classification provisions, as is the case in section 1315 (d), the term embraces classification provisions imposing no duties (free list) as well as those imposing duties (dutiable list). See Jackson v. United States, 2 Ct. Cust. Appls. 70, 75, T.D. 31629 (1911).
Moreover, it is not disturbing to me that the directive contained in exhibit 7 is not couched in the formal language, or the “niceties” as it were, which my colleagues are looking for. I find no requirement in section 1315 (d) regarding the form and manner in which the Secretary’s finding of “an established and uniform practice” is to be made. The statutory requirement is only that such a finding be made. And I am satisfied that the language employed in exhibit 7 was appropriate for the occasion of the statutory finding. In exhibit 7 the Commissioner was responding to the collector at New York on a subject with which *60both were familiar; and be used the occasion to make all customs officers privy to the information and the directive contained therein. I have no doubt that the customs officials to whom such information was addressed were conversant with the subject matter discussed in exhibit 7. This is sufficient. There is nothing in section 1315 (d) which requires the Secretary to make Ms finding public or even to publish his finding. And in the absence of any such requirement there is simply no need that I can see for formalism of language for the benefit of a class of persons, namely, the importing public, who would not be as familiar with the subject matter as would be the customs officials to whom the directive is addressed and who alone are charged with its implementation.
What is required to be made public under section 1315(d) is any subsequent administrative ruling countermanding the finding of the Secretary that operates to the detriment of the importing public. Here is where all the formalism which my colleagues would reserve for the Secretary’s finding in order to give it legality is required to be put to work for the benefit of the importing public. And the obvious reason for this is that the rights of the public have intervened between implementation of the Secretary’s finding and the countermanding administrative ruling. And in my opinion, the decision of the Commissioner as contained in exhibit 8 which countermanded his earlier ruling is an administrative ruling imposing higher duties within the meaning of section 1315 (d).
That the 30 days notice provided for in section 1315(d) was designed to subserve and protect the interests of the importing public is clear from a reading of the legislative history of the amendment to section 1315(d) set out in Westergaard, Berg-Johnsen Co. (Chas. H. Timm Co., Inc.) v. United States, 17 Cust. Ct. 1, C.D. 1009 (1946), which is cited by both of my colleagues. Apropos to such intent is the statement found on page 3 in Westergaard where the court quotes from the hearings on H.R. 6738 (relating to the current text of section 1315 (d)) as follows:
The last sentence of the proposed amendment * * * is a paraphrase of the present customs regulations which grant 30 days notice to importers and others before adverse administrative rulings resulting in a change in a uniform and well-established practice become effective. The fairness of such regulations is evident and the statutory crystallization of the policy contained in the regulations and followed by the Treasury Department for 30 years is considered to be very desirable, particularly since a corresponding reciprocal provision has been incorporated in several of the trade agreements entered into under the authority of section 350 of the Tariff Act of 1930, as amended (U.S.C., Í934 ed. title 19, sec. 1351). This provision would not, of course, apply in the event *61of a change in practice made necessary by a judicial decision or by a proclamation made by the President -under any provision of law. Any change made under the antidumping law (U.S.C., 1931 ed., title 19, secs. 160-173) is expressly excepted from the benefit of this period of grace. [Italics added.]
One of the difficulties I find with TWestergaard, however, is not with the above statement concerning the respite intended to be accorded to importers and others by the amendment to section 1315 (d), but with the court’s interpretation in that case of the meaning of the italicized portion of the statement dealing with judicial decisions. The court in Westergaard interprets the language in italics as excluding from the application of section 1315 (d) all countermanding administrative rulings imposing higher duties which are founded upon judicial decisions, and this, notwithstanding the fact vis-a-vis the doctrine of res judicata in customs cases that the only parties affected by the underlying judicial decision per se are the parties involved in the customs transaction or transactions embraced by such decision. However, as I read the words “change in practice made necessary by a judicial decision” as set out in the above statement these words evidence the intention that there be excluded from the application of section 1315 (d) only those countermanding administrative rulings imposing the higher duties which are mandated by judicial decisions — the obvious kind of situation affecting parties to whom administrative notice would be superfluous by reason of their involvement with the judicial decision imposing the higher rate. Consequently, consistent with the purpose for which the amendment to section 1315 (d) was proposed as above noted, I find that section 1315(d) does not exempt from its application those countermanding administrative rulings imposing higher duties which are based upon judicial decisions that the Secretary or customs officials elect to apply and extend to customs transactions not otherwise affected by such decisions and concerning which the importing public is not normally aware of or concerned with or involved in. Such rulings are just as much “administrative rulings” within the meaning of section 1315(d) in my opinion as are administrative rulings founded on a non-judicial basis. And in either case unless and until the administrative ruling is published in accordance with the requirements of section 1315(d) the importing public is unaware of the existence of the ruling or of its impact upon importations made without reference thereto. Hence the need for public notice which, in my view, section 1315(d) was designed to meet.
Another fault I find with the decision in Westergaard is its failure, although addressing itself to the requirements of section 1315(d), to come to grips with the prime ingredient of that statute’s application, namely, a finding by the Secretary of the Treasury of the existence *62of an established and uniform practice with respect to the classification of stockfish. The plaintiff in that case did not contend nor did the court there find that the Secretary had made such a finding. And absent a finding by the Secretary of the existence of an established and uniform practice with respect to the classification of stockfish, the court in Wester gaard did not properly reach any question as to the nature of a countermanding administrative ruling imposing higher duties. Washington Handle Co. v. United States, supra, at page 87.
Under the stipulated facts of record I conclude, for the reasons stated, that plaintiff’s claim herein is well founded, in consequence of which, I would sustain the protest.