The opinion
CONCURRING OPINION.
Barber, Judge:
I reach the conclusion that the board should be-affirmed for the following reasons:
The classification as oxidized linseed oil is presumed to be correct. The importers has . made several alternative claims in the protest, apparently relying here upon two, namely, that the merchandise is a cement under paragraph 74 and if not so, that it is a nonenumerated manufactured article under paragraph 385 of-the tariff act of 1913. Of course, the burden is upon it to establish that the merchandise is not oxidized linseed oil, but that it is either cement or a non-enumerated manufactured article.
The board has heard all the evidence, and sustained the assessment, and I do not think on the record its action should be reversed. No one with definite knowledge on the subject has undertaken to-state precisely how oxidized linseed oil is made. Generally speaking, however, it appears from the testimony of witnesses on both sides that linseed oil is boiled at a temperature, and exposed to the air through the agency of some sort of cloth or fiber, the oxidization being sometimes aided by an oxidizing material. All the witnesses having knowledge agree that there is a fiber in the samples before us. One of the importer’s chemists testified that he recognized the basis of the articles to be oxidized linseed oil and testified specifically as. follows:
Q. But taking the mass as a whole, you would recognize it, wouldn’t you, as1 oxidized linseed oil?—A. Looking at it superficially, yes.
Q. Looking at it superficially and in conjunction with your analysis, it still responds' in general for tests of oxidized linseed oil? A. The greater part, yes.
The other of the importer’s chemists who had never analyzed oxidized linseed oil was unable to say whether the resinous substance which he found was the result of the deliberate introduction *226 of resin ór of the chemical action of the material used in oxidized linseed oil. On the other hand, the' Government chemist testified that'he'had analyzed oxidized linseed oil on various occasions and’ nearly always found' resin present, although he did not find it in the sample of the merchandise submitted to him for analysis, and that its presence was not inconsistent with the fact that the article was oxidized linseed oil. Other samples not in this case, which he had-analyzed, contained, he said, as high as 8 per'cent of resin. I note also that importer’s chemists found the resin content to vary from 8.2 to 1.26.- The Government examiner who testified to some eight years’ experience in examining and -passing oxidized linseed 6il, also testified-that he passed the merchandise here, was familiar with it, that it was apparently the sanie material and identical in appearance with the oxidized linseed oil which he knew.
On the record I think the judgment of the Board of General Appraisers should be affirmed because importer has failed to successfully maintain the burden of showing not only that the assessment is incorrect but also to sufficiently establish the classification for which they contend. .
In this view the board may well have been within the legal exercise ■of its discretion in denying a motion for a commission to take testimony abroad.. The purpose of taking that testimony as disclosed in the affidavit of counsel was to show what in fact the ingredients of the merchandise were, claiming that the desired testimony would, show that it contained resin and kauri. But kauri is a species of resin and the affidavit does not claim that the evidence he wished to obtain under the commission would show a greater amount of resin content than that disclosed by the chemical analysis made on behalf of importers, hence the board may well have reasoned that such evidence would be merely cumulative as to a fact already established.
. MONTGOMERY, Presiding Judge, concurred.