The opinion
CONCURRING OPINION.
Barber, Judge:
I concur in the conclusion reached in the opinion of •Judge .Smith that the judgment of the Board of General Appraisers should be affirmed.
I do not think, however, it should be held that the engine was exported for repairs within the meaning of paragraph 404. The appellee does not so contend in this court and alleges that it never so contended.
In my view the engine, exclusive of the cost of the repairs, is entitled to free entry as a manufacture of the United States returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means, all which conditions have been affirmatively found by the board and upon sufficient evidence.
I think that the word “exported” as used in paragraph.404 is not limited to the ordinary tariff meaning thereof, which may in substance be said to be the taking of merchandise from one country to another with the intention of uniting it to the subjects of commerce in the latter. The provisions of the paragraph for the return of Boxes and other containers or coverings when exported filled with American products, or exported empty and returned filled with foreign products, also for photographic dry plates or films of American manufacture, exposed abroad and then returned to this country, and for articles exported for repairs and then returned, all seem to use the word “exported” as meaning the removal or taking out of the country of the property without an intent that the same shall be the subject of commerce in the country to which it is taken. The propriety of interpreting the word in this sense is recognized by the Supreme Court in the case of Swan & Finch Co. v. United States ( 190 U. S., 143 ), where, in substance, it was held that while the word “exported” should generally be understood in the ordinary tariff sense, yet the context might sometimes give to it a different meaning and that “in the execution of the administrative affairs of .government it may have been applied to cases in which there was not in the full sense of the term an exportation. ”
The board held the costs of repairs were dutiable within the rule laid down by the Circuit Court of Appeals in Hillhouse v. United States ( 152 Fed., 163 ), as applied by this court in Denike v. United States ( 5 Ct. Cust. Appls., 364 ; T. D. 34553). No appeal was taken by the importer and consequently there is no question before us and *220 no views are here expressed or intimated as to th.e dutiability of such repairs.
In addition to what is said in the opinion oí Judge Smith upon the subject in this case, the decision of Judge Somerville in G. A. 5219 (T. D. 24035) sets forth in apt language the substance of the reasons which excuse the appellee from the strict compliance with the Treasury regulations insisted upon by the Government in this case-
MONTGOMERY, Presiding Judge, concurs.