The opinion
DISSENTING OPINION
Bland, Judge:
The manifest intention of Congress to afford adequate protection for all kinds of tungsten and tungsten material is so strongly indicated by the manner in which the subject is treated at so much length, and with such care, in the steel schedule, that, in my judgment, it should not be ignored unless no other reasonable interpretation of the language used can be indulged.
The incongruous result arrived at by the majority opinion, which places a duty of 75 cents per ton upon imported material, which, according to the declared purpose of Congress, should bear not far from 200 times that amount of duty, should prompt a most diligent and zealous search into the legislation and its legislative history in order to find an interpretation of the language used, if possible, which would bring about a result consistent with the unquestioned and undisputed legislative policy.
The reasoning of the ruling opinion, in my judgment, concedes that the importation is a compound of tungsten, but denies its classification as such on account of the force given to the rule of interpretation knQwn as relative specificity.
Such a rule of interpretation is applied by the courts for the purpose only of determining the intention of the legislature, and no rule of interpretation can stand against other evidences of intention more persuasive. If this material is a compound of tungsten, and is used as such, hair-splitting technicalities and subtle judicial refinements should not prevail with such disastrous results against an interpretation admittedly more in harmony with the general scope of the legislation, when such interpretation is abundantly sanctioned by the highest recognized authorities.
In most of the -views expressed by Presiding Judge Graham, in his dissenting opinion, I most heartily concur. I disagree with his views as to paragraph 306', which defines steel. Also, it seems to me that the ’majority opinion, as well as Judge Graham’s opinion, overlooks one of the most1 important considerations involved.
A most’impelling reason why ’theíniportation át hand should not bé assessed for’ duty Under paragraph' 301 as scrap steel "valued at1 *484 not more than 7 cents per pound, at 75 cents per ton, is on account-of the last proviso used in the paragraph, which is as follows:
Provided further, That nothing shall be deemed scrap iron, or scrap steel except secondhand or waste or refuse iron or steel fit only to be remanufactured. (Last italics mine.)
I think Congress had in mind in providing for “scrap steel * * * fit only to be remanufactured” such scrap steel as was to be remelted to make a new product — steel, which, when remelted, would possess substantially the same characteristics that it possessed before re-manufacture. Congress did not intend to include within the paragraph a scrap that was not only fit to be remanufactured back into tool steel possessing substantially 14 per centum of tungsten, but which was also fit to be used as ferrotungsten is used, in giving a tungsten content to a charge. Alloying steel is not a remanufacture of the .alloying material.
The board found, and the ruling opinion of this court approves the (finding, that the importation was fit only to be remanufactured. Witnesses testified that it was fit only for remanufacture. In so Testifying, in my judgment, they were giving their opinions of what amounts to a question of law and which was erroneously decided by the board and by this court. The importation is not “fit only to be remanufactured.” It is, in its imported condition, fit to he used as ■an alloy in a molten charge of steel, and the proof in the case unquestionably establishes that its chief use, if not almost its entire use .'is a use similar to that of the alloys of tungsten so carefully enumerated in paragraph 302, upon which a high ad valorem duty was placed.
Scrap rubber “fit only to be remanufactured” is rubber that is melted together and again made into rubber. Scrap lead “fit only to be remanufactured” would be scraps of lead which would be again melted together to make the material lead or articles of lead. Ferrotungsten may be a manufacture from tungsten ore, or a manufactured product. When ferrotungsten is inserted in the charge to .give a tungsten content could it be said that it is “remanufactured” within the meaning of the paragraph under discussion? I think not, .and for the same reason I do not believe that when Congress provided for scrap “fit only to be remanufactured” it intended to include a :scrap which was used as a substitute for ferrotungsten.
Paragraph 306 is found in the metal schedule and defines steel as “all metal produced from iron or its ores.” Judge Graham arrives .at the conclusion that steel is not steel if it contains any alloy, but .must be the product of iron or its ores only. To my way of thinking, this paragraph gives an inclusive definition and not an exclusive one. In other words, all is- to be classified and denominated as steel if it comes from iron or its ores, but if it should contain, also, an *485 alloy, it is not to be excluded from the paragraph for that reason. It seems to me that the different producing processes set out in paragraph 306 would indicate that steel containing alloy is included, and not excluded from “steel” as defined in the paragraph.
It is my opinion that the scrap material under consideration in' this case may be “steel” but it is not the “scrap steel” provided for in paragraph 301. It is not “steel in all forms and shapes,” referred to in paragraph 305. United States v. Downing & Co. (Inc.), 14 Ct. Cust. Appls. 194 , T. D. 41702. It should be classified as dutiable under paragraph 302.
. For these and other reasons I am compelled to dissent 'from the opinion of the court.