The opinion
DISSENTING OPINION
Donlon, Judge:
I would have no difficulty in concurring with the opinion of the majority, were it not for the recent decision of our appeals court in United States v. P. John Hanrahan, Inc., Trans., et al., 45 C. C. P. A. (Customs) 120, C. A. D. 684, banded down June 18, 1958.
In the Hanrahan case, the record established that the imported merchandise, wheat gluten, is never eaten as food, is insoluble in the juices of the mouth, is unpalatable, and, if chewed, becomes a spongy mass difficult to swallow, and that it is indigestible. Nevertheless, a majority of the appeals court held that such wheat gluten was an edible preparation for human consumption. The issue was stated in the majority opinion as follows:
The determination as to whether the instant merchandise is edible, within the meaning of the applicable provision of the Torquay Protocol, depends upon whether that word, as there used, embraces all preparations which may ultimately be consumed in foods, or is limited to those which may be eaten in the form in which they are imported.
The decision of the court was stated as follows:
We find no reason for applying to the word “edible,” as here under consideration, any meaning other than its common one which, in our opinion, embraces a preparation such as the instant merchandise, which is commonly used as an ingredient of foods and is prepared for that purpose. It is not necessary that the preparation should normally be eaten in the condition in which it is imported. It is, of course, true, as urged by appellee, that classification must be determined on the basis of the condition of the merchandise at the time of importation, but the instant merchandise, as imported, is capable of being eaten, and therefore is edible even though it must be mixed with other ingredients and cooked before the actual eating takes place.
There are, of course, certain distinctions at law between the tariff term which is construed in the Hanrahan case, “edible preparations for human consumption,” and the tariff term now before us, “fit [or unfit] for beverage purposes.” However, the record before us shows *278 that the instant merchandise, a,s imported, can be consumed as a beverage, although distasteful; that it is used as an ingredient of beverages; and that it is capable of use for beverage purposes even though it is first mixed with other materials and treated, as by aeration (mixing with air) or pasteurization (cooking), before actual beverage use occurs.
The issue here seems to be basically the same as the issue that was stated by the court in the Hanrahan case. If so, the tariff term appears to embrace all preparations which may ultimately be consumed for beverage purposes, and is not limited to those consumed for beverage purposes in the form in which imported.
On the facts of record here, and the rule* that was laid down by our appeals court in the Hanrahan case, supra, I am constrained to dissent.