DISSENTING OPINION
Rioiiaedson, Judge:In view of the unorthodox description of merchandise set forth in the original protest filed by the plaintiff-consignee-broker (expressed in terms of stated values rather than in terms of the conventional identification of articles), compounded by statements appearing in the official papers to which the court must turn for intelligent understanding of the protest claims,1 a jurisdictional question arising from the face of the pleading is presented to the court at the outset. It seems clear that the $9,588 figure mentioned in the protest relates to the returned American materials. However, the jurisdictional question arises from the condition of the returned material as manifested in the protest vis-á-vis the item 800.00 protest claim under subpart A of part 1 of schedule 8 of TSUS which is contemplative exclusively of free entry of returned American goods in an unimproved or unadvanced condition.
The $9,588 protest figure is shown on two documents comprising part of the official papers before the court which indicate it is inconsistent with goods in an unimproved or unadvanced condition. First, this figure constitutes the entered value set forth in plaintiff’s entry for the returned material, which describes the material as “Keturned to the U.S. After Export eor Alterations”. And secondly, this figure is shown in the declaration signed by plaintiff-protestant on Customs Form 3311 for “Free Entry oe Keturned American Products” wherein the printed language certifying that the goods have not teen advanced in val/ue or improved in condition has been deleted. Additionally, an accompanying application for and certificate of registration of articles to be exported for repairs or alterations, on Customs Form 4455 dated April 1, 1966, states that the returned material was sent abroad “To Be Beaded and Cut in ITale and Keturned”. And lastly, figures noted in blue ink on two commercial invoices, dated Hong Kong 7th June, 1966, opposite the specifications of the returned material and adding up to $9,587.99 is said, via a penciled notation appearing on one of the invoices, to reflect U.S. value as of “6/1/66”.
The foregoing documentation in the official papers to which the protest claim for the returned American material has reference re-*103fleets such material in an improved or advanced condition. This being the case here, a claim in the protest for classification of such material under item 800.00 would not be justiciable as a matter of law, since, as previously indicated, that tariff provision only governs the classification of returned American goods in an unimproved or unadvanced condition. And claims which are unjusticiable when pleaded cannot support amendments which purport to make them justiciable after the statute of limitations has run.
As Judge Rao, speaking for an unanimous second division in National Carloading Corporation v. United States, 44 Cust. Ct. 498, Abs. 64258 (1960), said:
The right of an importer to protest a liquidation of imported merchandise is statutory. Section 514 of the Tariff Act of 1930 is the enabling provision. It specifies the time for filing a protest, to wit, within 60 days after liquidation, and the substance thereof, to wit, that it shall be in writing, “setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto.”
It has been said of a protest that it need not be made with technical precision, but it is sufficient “if the importer indicates distinctly and definitely the source of his complaint, and his design to make it the foundation for a claim against the government.” Greeley's Administrator v. Burgess (Converse v. Burgess), 59 U.S. 413. . . .
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. . . [I]t is also settled law that a protest must point out or suggest the provision of law which it is claimed controls the classification of the subject merchandise and the assessment of duty thereon. Hermann v. Robertson, 152 U.S. 521. . . . [Emphasis added.]
The second division in the National Carloading Corporation case determined that the protest did not state a cause of action, and as such, the court never acquired jurisdiction of the controversy, and the lack of jurisdiction could not be cured by an amendment of a defective protest. It concluded by stating:
The jurisdictional defect inherent in these proceedings has not been raised by counsel for the Government, whether through oversight, or as an intentional, though necessarily ineffective, waiver, we have no means of knowing. However, the court possesses authority sua sponte to dismiss a protest which fails to confer jurisdiction. U. Fujita & Co. et al. v. United States, 26 C.C.P.A. (Customs) 63, T.D. 49611. We are constrained to exercise that authority in this instance. Plaintiff’s motion to amend is, therefore, denied, and the protest is dismissed for insufficiency.
See also, Eaton Manufacturing Co. et al. v. United States, 66 Cust. Ct. 293, C.D. 4207 (1971), appeals pending; J. R. Press Corporation v. United States, 45 Cust. Ct. 382, Abs. 64924 (1960); and Heemsoth *104Kerner Corporation v. United States, 31 Cust. Ct. 113, C.D. 1554 (1953).
The initial protest claim herein respecting the returned American material does not confer jurisdiction upon the court, and an attempt to amend such a protest by claiming under subpart B of part 1 of schedule 8 of TSUS, namely, items 806.20 and 807.00 which contemplate only returned American goods in an improved or advanced condition cannot be successful.
Consequently, even though amendment of the protest was made and granted at the trial on circuit, such an amendment is not effective unless and until approved by the division of the court to which the case is assigned for determination. For the reasons stated I would deny the motion to amend the protest, the power to dispose of motions made on circuit reposing ultimately in this division in this protest case. 'See Rules 6 (c), (d) and (f), Customs Court Rules, adopted April 25, 1949, as amended and in effect on July 1, 1968; and see also, Z. Samdoz Vuille, Inc. v. United States, 65 Treas. Dec. 159, 161, T.D. 46875 (1934), aff'd, 22 CCPA 303, 307, T.D. 47349 (1934), and Sweeney & Johnson v. United States, 61 Treas. Dec. 1331, T.D. 45772 (1932). As the court said in Sweeney (page 1334):
. . . The attempt on the part of plaintiff’s in their second amendments to enlarge upon their original protests was, in our view, clearly without warrant of law and a manifest jurisdictional defect on the face thereof that can not be waived by the attorney for the Government or by this court, or by a judge thereof. . . .
I say as much here with respect to the instant protest.
It appears that the returned material constitutes the only real basis for the instant litigation, although two distinct claims are stated in the protest — one relating to the material, and the other to the beads and labor. In colloquy between counsel at the trial, plaintiff’s counsel said (R.4):
Mr. Isaacs : ... The original claim in the protest is for a specific value of merchandise, $9,588.00, under Item 800.00, TSUS, which is American goods returned. The balance of the value on the protest, as set forth, claims classification under the dutiable provision of item 382.0386.
In other words, the broker filed this protest, and what he did was — In the protest he said, $9,588.00 worth of value we claim to be American goods returned under Item 800.00. The balance, $8,752.00, he claimed as assessed. So that that claim as to the $8,752.00 is really surplusage in the protest. . . .
And nothing that later transpired in the case contradicts this assertion on the part of plaintiff’s counsel. No evidence was adduced in support of any claim identified in terms of the $8,752 figure in the protest, nor *105was any argument advanced in support of such claim in plaintiff’s brief. So that, while plaintiff did not expressly abandon this claim, it has in effect abandoned the claim.
Therefore, it follows from the foregoing that the protest herein must be dismissed — as to the returned American material for the failure of the protest to plead a justiciable claim, and as to the remaining protest claim by abandonment of the same.
I would dismiss the protest.
Unless reference may be bad by the court to the official papers for the purpose of ascertaining the pleader’s Intentions as expressed In the protest, there Is no way to reach even the generous conclusion that the protest Is factually sufficient on Its face.