DISSENTING OPINION
EichaRdson, Judge:Because of the present posture of this case, it is necessary to express my views in three parts. Part I is addressed to the affect on a motion for rehearing when a court consisting of a plurality of judges is equally divided on the disposition of the motion. *252Part II is addressed to Judge Landis’ reconsideration of our decision that the liquidation was premature and void. Part III is addressed to Judge Landis’ reconsideration of our decision that the effect of the premature liquidation was to void the apraisement, and our remand of the case to a single judge to determine value.
I
As indicated in footnote one of Judge Landis’ opinion, Judge Richardson voted to deny the motion for rehearing and Judge Landis voted to grant the motion; and Judge Ford was specially assigned to resolve the split, and voted to grant the motion.
A motion for rehearing is addressed to the discretion of the judge or judges who decided the case. DeWindt v. O'Leary, 118 F. Supp. 915 (S.D. N.Y. 1954). In this controversy since the two judges who heard the case and entered judgment did not agree on the granting of a motion for rehearing the motion failed. “Where there is an equal division of opinion in the court [on a motion for a rehearing], the motion fails.” 60 C.J.S. § 38; Goddard v. Coffin, 10 Fed. Cas. 505, No. 5490, 2 Ware (Dav. 381), 382 (C.C.D. Me. 1849). In the Goddard case the court stated at page 507:
“In the case of Lanning v. London [Case No. 8075], it was decided that when the court is divided on a motion for a new trial the motion fails and a new trial is not granted.”
Thus when a court consisting of a plurality of judges is equally divided on a motion, adding a third judge who did not participate in the original judgment “to resolve the split” appears to be inappropriate.
As the opinion in Pistorino & Co., Inc. v. United States, 65 Cust. Ct. 387, C.D. 4110 (1970), at page 390, indicates, the question of the court’s jurisdiction was challenged first by a motion in 1967 at which time Judges Richardson and Landis were the only judges in the Third Division. They continued to act in the case through October 28, 1970 when they concurred in a decision and judgment, C.D. 4110.
The question of affirming a lower court ¡judgment where an appellate court is evenly divided on the lower court’s judgment is not involved in this case. The question here is whether the party making a motion for a rehearing to the trial court which entered a judgment, against which it complains, has relief available to it when that trial court is divided on whether it should or should not grant the motion for a rehearing; and my answer to the question is in the affirmative. It has a judgment from which it can appeal.
The issue here is distinguishable from the issue in the case of Veolay, Inc., et al. v. United States, 21 CCPA 268, T.D. 46804 (1933), referred to by Judge Landis in footnote two of his opinion. In the *253Veolay case there was no judgment order entered by two judges of the Third Division, one of the two judges who had agreed on a decision having died before the third judge returned the draft to the clerk with her dissenting opinion. In other words no order had been entered from which an appeal could be taken. In the instant case there was a decision and judgment order entered and promulgated from which an appeal could be taken, when the two judges who had decided the case disagreed on a motion for a rehearing.
II
I dissent from the majority opinion that the liquidation was voidable, and adhere to the court’s original view that the liquidation was premature and void inasmuch as the liquidation was not based on a “final appraisement.”
This is a 1966 protest, and, according to Title I, Section 122 of The Customs Courts Act of 1970, and Rule 14.9(b) (1) of the Rules of the Customs Court, it is governed by the law in effect prior to October 1, 1970. The liquidation in this protest is premature and void. The law in effect prior to October 1,1970 as declared by the Court of Customs and Patent Appeals, and by this court in an unbroken chain of decisions, is that a liquidation of an entry prior to the expiration of the 60 days after appraisement in which the collector or district director might appeal for reappraisement is not upon a “final appraised value,” is premature and void, and a protest against such liquidation must be dismissed as premature. United States v. Boston Paper Board Co., 23 CCPA 372, T.D. 48233 (1936). See also: Lawrence Groom & Co. v. United States, 64 Treas. Dec. 119, T.D. 46559 (1933), Biddle Purchasing Co. et al. v. United States, 69 Treas. Dec. 880, T.D. 48320 (1936), Ti Hang Lung & Co. v. United States, 3 Cust. Ct. 268, C.D. 248 (1939), and The New Home Sewing Machine Co. v. United States, 62 Cust. Ct. 895, R.D. 11655 (1969). There can be no “final appraised value” until either the right of appeal has been exhausted, or the statute of limitations has run against such appeal. Only then can there be a legal liquidation.
The majority in following the Second Division in the case of John V. Carr & Son, Inc. v. United States, 66 Cust. Ct. 316, C.D. 4209, 326 F. Supp. 973 (April 29, 1971), takes the position that the Court of Customs and Patent Appeals, and this court, prior to April 29, 1971, in using the word “void” to characterize a liquidation made prior to the expiration of the 60 days allowed for an appeal for reap-praisement didn’t really mean “void” but meant “voidable”; that it is legally wrong for the district director to liquidate prior to the expiration of the 60 days within which he may appeal, but his illegal act is merely “voidable,” and the blemish of illegality in not waiting for *254a “final appraisement” before liquidating is automatically wiped off by the expiration of the 60 days without the district director filing an appeal for reappraisement.
The opinion in the Carr case, supra, relies upon 19 U.S.C.A., § 1501(a) (section 501(a) of the Tariff Act of 1930, as amended) in attempting to establish a “final appraised value.” This statute provides in the part relied upon as follows:
“(a) . . . The decision of the appraiser, including all determinations entering into the same, shall be final and conclusive upon all parties unless a written appeal for a reappraisement is filed with or mailed to the United States Customs Court by the collector within sixty days after the date of the appraiser’s report, or filed by the consignee or his agent with the collector within thirty days after the date of personal delivery, or if mailed the date of mailing of written notice of appraisement to the consignee, his agent, or his attorney. Every such appeal shall be transmitted with the entry and the accompanying papers by the collector to the United States Customs Court.”
19 U.S.C.A., § 1501 would be pertinent here, if plaintiff was a party seeking an appeal for a reappraisement — an action against an appraising officer for his determination of an “appraised value.” This is not such an action. This is a protest proceeding — an action against a collecting officer for his liquidation on a basis other than a “final appraised value,” involved in 19 U.S.C.A., § 1503, — one of the three essential elements the collecting officer is required to use in liquidating an entry, whether or not there has been an'appeal for a reappraisement. The other two elements are quantity and-rate. He cannot liquidate 'until the appraisement has become a “final appraised value,” and he has determined the other two elements (quantity and rate) entering into his liquidation.
. The opinion in the Carr case, supra, does not cite any cases holding that a collector or. district director may make a premature liquidation in contravention of the statute, 19 U.S.C.A., § 1503 (section 503 of the Tariff Act of 1930, as amended), which provides:
“(a) Except as provided in section 1562 of this title (relating to withdrawal from manipulating warehouses), the basis for the assessment of duties on imported merchandise subject to ad valorem rates of duty shall be the final appraised value.'1'1 [Emphasis added.]
. It has been judicially determined that an appraised value becomes final.upon the expiration of a 60-day period absent the filing of an appeal for reappraisement, and that the collecting .officer cannot liquidate until the appraisement has become a “final appraised value.”
The premature liquidation was not an act which the collector had the power to perform, but performed in an improper manner, as the *255Court of Customs and Appeals held the facts to be in the case of Joseph Fischer v. United States, 38 CCPA 143, 150, C.A.D. 452 (1951), cited in the Carr case. The collector bad no power to liquidate until there was a “final appraisement,” that is, after the 60 days for appeal had expired. Even that case made a distinction between what is merely “erroneous” and thus “voidable” and what is “illegal” and thus “void.”
Whereas the opinion in the Carr case, supra, does not expressly state that the district director may waive the 60-day period within which he may appeal, the opinion implies as much.
The argiunent that the collector or district director be regarded as having waived his right to appeal by a premature liquidation was exploded in Lawrence Groom & Co. v. United States, 64 Treas. Dec. 119, T.D. 46559 (1933), where the collector liquidated an entry eleven days after the appraiser’s report and thereafter filed an appeal for reappraisement on the fifty-ninth day. The court in permitting him to appeal for reappraisement did not regard the premature liquidation as a waiver of his right to appeal. The court at page 121 said:
“. . . The collector in this case had no appraised value upon which he could legally assess duty until after the 60-day period after the appraiser’s return, within which he was authorized to file an appeal for a reappraisement, had expired.” [Emphasis added-]
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“It is not within the power of the collector to destroy the authority granted him by Congress of filing an appeal for a reap-praisement by liquidating an entry during the time within which he is authorized to file an appeal for a reappraisement of the merchandise. The collector cannot destroy a legal right by the doing of an illegal actP [Emphasis added.]
A waiver means to irrevocably relinquish a right that is beneficial to the individual. A person cannot make a waiver of a right and then later say “I have changed my mind. I take the waiver back.” Legal rights do not ebb and flow as the tide. Also, the 60-day period within which the collector or district director may appeal is not a personal right or privilege to waive, but a right given the collector or district director on behalf of the United States Government to determine within a 60-day period whether in the public interest an appeal for reappraisement should be taken. He cannot shorten this 60-day period by a premature liquidation.
The Lawrence Groom & Co. case, supra, was decided on the basis of section 503 of the Tariff Act of 1922 which did not contain the expression “final appraised value.” The court did use substantially, similar language in its decision when it said: “In this case the appraised value of the merchandise did not become -final and conclusive upon all *256parties so long as the right of appeal was vested in either of them.” (Emphasis added.)
The expression “final appraised value” appeared for the first time in section '508 of the Tariff Act of 1930. Section 508 was amended in 1953, but Congress retained the expression “final appraised value,” with a knowledge of the court’s interpretation of the expression. If Congress had disapproved of the long standing judicial interpretation of what is meant by “final appraised value,” it is submitted that it would have further amended the statute to indicate its disapproval. Its failure to do so evinces an intent to consider premature liquidations null, void and of no effect.
In the Biddle Purchasing Co. et al. case, supra, the majority of the court als'o rejected the contention that a liquidation prior to the expiration of the 60-day period constitutes a waiver of the 60-day waiting period for the appraisement to become final.
The Second Division, in its opinion in the Carr case, supra, states that in the Biddle case, supra, “. . . where no appeal Was filed, the appraisement was not held void.” The issue in the Biddle case, supra, was not whether the appraisement was void, but whether the liquidation was void. The court had the following to say on this issue, at pages 885 and 886 of its opinion:
“It was only after sixty days from the date of the appraiser’s report that the appraised value became final. Any liquidation made prior to the time when the appraisement becomes final is void amd without any force or effect. /Such has teen the holding of this court arid the appellate court.” [Emphasis added.]
“. . . on March 23, 1936, in United States v. Boston Paper Board Co., 23 CCPA 372, T.D. 18233, [the Court of Customs and Patent Appeals did] hold that the attempted liquidation of the entry prior to the expiration of the time within which to appeal for reappraisement was properly held by the trial court and the division to be null and void.
“On the facts in the case at bar we so hold.” [Emphasis added.]
At page 885.
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“. . The date on which final appraisement became Valid was provided for under existing law. Therefore the liquidation in question, having been made prior to the time allowed by law, viz, sixty days, when the appraisement became final, and during which period the collector had the right to appeal, was invalid.
“We therefore hold the liguidation of the entries covered by these protests null and void, and of no force and effect. The protests are sustained.” [Emphasis added.]
At pages 885-886.
The headnote in the Biddle case, supra, at page 880 also states:
*257“A liquidation made prior to t!he expiration of the sixty days allowed 'by law to the collector within which to appeal for reap-praisement is void, as the appraisement by the appraiser does not become final and conclusive until such time has expired.” [Emphasis added.]
Admittedly a headntote is no part of the decision in a case, 'but in this instance it does succinctly and accurately capsule the opinion.
Judge Ford, who was assigned to participate in this case after Judge Landis and I divided on granting a motion for rehearing, wrote the opinion in The New Home Sewing Machine Co. v. United States, 62 Cust. Ct. 895, R.D. 11655 (1969), cited above, in which he quoted extensively from the Biddle case in support of his conclusion that “any liquidation made before the appraisement becomes final under the above sections [501 and 503 of the Tariff Act of 1930] is premature, illegal, null and void.” After quoting from the Biddle case, he stated “In view of the foregoing the liquidation was improperly made and is therefore void.”
Judge Ford 'also concurred in the Carr case which makes the incidence of a post-liquidation appeal for reappraisement the controlling consideration as to whether a liquidation made within sixty days of an appraisement is to be judged void or merely voidable. I cannot reconcile Judge Ford’s concurrence in this view in Carr with 'his earlier and contrary view on the same subject in The New Home Sewing Machine Co. v. United States, supra. In The New Home Sewing Machine Co. case both appraisement and liquidation occurred on the same day, and no appeal for reappraisement was filed subsequent to the premature liquidation. But the absence of such an appeal in that case did not deter Judge Ford from ruling that the premature liquidation was “illegal, null and void.”
The Customs Courts Act of 1970, effective October 1, 1970, changes the administrative procedure in appraisement and liquidation, but the same Act limits this court to applying the law in effect prior to October 1, 1970, in deciding protests, the trial of which began prior to October 1, 1970 (Title I, Section 122 of The Customs Courts Act of 1970). Also, Rule 14.9(b) (1) of the Rules of the Customs Court effective October 1,1970, provides:
“All actions in which trials have commenced prior to October 1,1970 shall be further processed and governed in 'accordance with the law and with the rules of the court in effect prior to October 1,1970.”
This protest was tried prior to October 1,1970.
The position taken by me in Garod Radio Corporation v. United States, 46 Cust. Ct. 473, Abstract 65612 (1961), to which attention *258is called in the majority opinion is not inconsistent with, the views I express here. In the Garod case the issue 'before the Third Division of this court was whether the question of the legality of a liquidation (by reason of the pendency of an alleged appeal for reappraisement) could be adjudicated by the court without regard to the “sufficiency” of the protest which purported to present the question. In the opinion written by me in Garod, concurred in by Judge Johnson thus constituting the majority view in that case, the Third Division (one judge dissenting) 'held that the question of the legality of the liquidation could not foe entertained by the court by reason of the legal insufficiency of the protest. Thus, the court, in dismissing the protest in Garod, never reached the question of a “void” liquidation. The majority opinion expressly found there that “The protest in its present posture does not afford the court jurisdiction to inquire into the sufficiency of the alleged appeal to reappraisement or the validity of the liquidation.’-5 Tn the instant case, however, the court has found the protest to be legally sufficient to confer jurisdiction upon the court to entertain the question as to the legality of the liquidation. Consistent with this finding I have for the reasons stated hereinbefore, found the liquidation herein to be “void.”
The liquidation herein is null and void by reason of its prematurity, and the protest filed herein against such void liquidation is premature, and must, therefore, be dismissed.
m
In' view of the briefs of the government and the amicus curiae in which persuasive authorities have been brought to the court’s attention on the validity of the appraisement, were the posture of the case such as to permit modification of the judgment, I would modify to- the extent of holding the appraisement to be valid.