The opinion
CONCURRING OPINION
Leneoot, Judge,
specially concurring:
I concur in the conclusion reached by the majority. I agree that, if the similitude clause is applicable to the provision of paragraph 730 here in question, the proof does not establish that the merchandise in question is substantially similar in material, texture, quality, or use, to the mixed feeds provided for in said paragraph 730. However, I cannot agree with the majority that said mixed feed provision is subject to the application of the similitude clause, and I agree with the views expressed by the trial court upon that question.
Inasmuch as it was not necessary to pass upon this question in arriving at the conclusion reached by the majority, I will not here discuss the question of the applicability of the similitude clause to said provision, but will merely state that in my opinion the language of said mixed feed provision is tantamount to an express exclusion of merchandise such as is here in question from said mixed feed provision of paragraph 730. If this be correct, under the decision in the case of Ungerer & Co. (Inc.) v. United States, 15 Ct. Cust. Appls. 279 , T. D. 42469, the similitude clause is not applicable to said provision.