Lenroot, Judge,
delivered the opinion of the court:
This is an appeal from the judgment of the United States Customs Court affirming the decision of the collector holding that “soup squares composed of lentil, pea, rice, bailey, potato, oxtail, etc., with a mixture of flour, fat, salt, seasoning, and meat extract, ” are dutiable under paragraph 773 of the Tariff Act of 1922 at 35 per centum ad valorem. Appellant claimed the merchandise to be dutiable as a nonenumerated manufactured article at 20 per centum ad valorem under paragraph 1459 of said act.
The competing paragraphs read as follows:
Par. 773. Vegetables, if cut, sliced, or otherwise reduced in size, or if parched or roasted, or if pickled, or packed in salt, brine, oil, or prepared or preserved in any other way and not specially provided for; sauces of all kinds, not specially provided for; soya beans, prepared or preserved in any manner; bean stick, miso, bean cake, and similar products, not specially provided for; soups, pastes, balls, puddings, hash, and all similar forms, composed of vegetables, or of vegetables and meat or fish, or both, not specially provided for, 35 per centum ad valorem.
Par. 1459. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles not enumerated or provided for, a duty of 10 per centum ad valorem, and on all articles manufactured, in whole or in part, not specially provided for, a duty of 20 per centum ad valorem.
Upon the trial of the case the record in protest 961112, Abstract 47638, under the Tariff Act of 1913, was incorporated, and it was stipulated that the merchandise involved in said protest was the same as the merchandise involved herein. At the trial the protest involved herein was limited to the merchandise described on the invoices as “soup squares” and as “pea soup rolls.”
The only testimony in the case is that contained in the incorporated record of protest 961112, and it gives us very little aid. The proportion of ingredients is not shown, nor the method of manufacture.
The merchandise is designated “mushroom,” “green pea,” “lentils,” “rice,” etc., and “pea soup in rolls.” Exhibits of the merchandise in evidence show that it is put up in packages and labeled “Knorr’s Marrow Pea Soup with Bacon,” “Knorr’s Soup Bean,” “Mushroom,” “Pea Green,” “Pea Yellow.”
It is admitted that the ingredients of the merchandise are, in addition to vegetable matter, fat, salt, seasoning, and meat extract.
Appellant contends that the only vegetable substance used in the merchandise is in the form of vegetable flour, and we think the testimony warrants that conclusion.
In the case which was incorporated in the record in the case at bar the Customs Court, then the Board of General Appraisers, sus[81]*81tained the protest, holding that the merchandise was not prepared vegetables, as contended by the Government, but a nonenumerated article, as contended for by the importer.
In the case at bar, the Customs Court first sustained the protest, following its decision in protest 961112, holding the merchandise to be a nonenumerated article and dutiable under paragraph 1459. Upon motion, a rehearing was granted. Upon such rehearing the Customs Court overruled the protest upon the ground that the provision for “soups, pastes, balls, puddings, hash, and all similar forms, composed of vegetables, or of vegetables and meat or fish, or both, not specially provided for,” did not appear in the Tariff Act of 1913, under which protest 961112 was decided, and that the merchandise was properly classified under paragraph 773. The court in its opinion said:
The term “forms,” in our judgment, would not be applied to what is termed “soups.” If the term “soups” means anything in this paragraph, it means what are known as soup squares, similar in shape or consistency to “pastes, balls, puddings, hash, ” etc.
The Government relies upon the case of Anderson v. United States, 6 Ct. Cust. Appls. 108, T. D. 35344, wherein it was held that a commodity described as “Maggi’s desiccated soup in tablets” was dutiable under paragraph 252 of the Tariff Act of 1909, which paragraph reads as follows:
Vegetables, if cut, sliced, or otherwise reduced in size, or if parched or roasted, or if pickled, or packed in salt, brine, oil, or prepared in any way; any of the foregoing not specially provided for in this section, and bean stick or bean cake, miso, and similar products, forty per centum ad valorem.
The court held that whether or not the term “vegetables prepared in any way” was broad enough to cover the importation, it was clear that the product there involved was so similar to bean stick that it fell within the latter provision of the paragraph. The Government contends that this decision governs the case at bar, and invokes the rule of stare decisis. The difficulty with this contention is that the court found in the Anderson case that the substance of which the tablets there involved were composed was wholly vegetable, while in the case at bar we have a substance composed of vegetables, salt, fat, and meat extract.
We hold that paragraph 773, except where otherwise specified therein, relates only to vegetables, and not to any commodity composed in part of vegetables and in part of other substances such as meat extract.
The case of Lang v. United States, 4 Ct. Cust. Appls. 129, T. D. 33394, involved the classification of so-called bouillon cubes under the Tariff Act of 1909. The cubes were made of extract of vegetables [82]*82with a trace of meat extract sufficient for bases. The merchandise was held dutiable as a nonenumerated manufacture under paragraph 480 of said act.
We see no escape from the conclusion that because of the presence of the meat extract and fat in the merchandise it is not classifiable either as “vegetables prepared in any way,” or, by similitude, as associated with and similar to “bean stick, miso, bean cake, and similar products.”
This leaves for consideration the provision in said paragraph 773 reading: “soups, pastes, balls, puddings, hash, and all similar forms, composed of vegetables, or of vegetables and meat or fish, or both.” It is by virtue of this provision that the Customs Court overruled the protest.
We are of the opinion that this provision is not applicable to the merchandise in question for the reason that it is not composed wholly of vegetables, nor of vegetables and meat or fish, or both. Meat extract is not meat, and therefore the provision does not describe the merchandise here in issue.
Neither can the merchandise be brought within the paragraph by similitude. In Lang v. United States, supra, this court said:
That “vegetables * * * prepared,” as used in the tariff laws, finds no comparable degrees of similitude with a meat extract and by a parity of reasoning with a vegetable extract we think well within the distinguishing differences pointed out by the board in G. A. 5361 (T. D. 24513), cited with approval in Fujiyama v. United States (T. D. 30573) by the United States District Court for the Territory of Hawaii, wherein it is stated:
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Lenroot, Judge,
delivered the opinion of the court:
This is an appeal from the judgment of the United States Customs Court affirming the decision of the collector holding that “soup squares composed of lentil, pea, rice, bailey, potato, oxtail, etc., with a mixture of flour, fat, salt, seasoning, and meat extract, ” are dutiable under paragraph 773 of the Tariff Act of 1922 at 35 per centum ad valorem. Appellant claimed the merchandise to be dutiable as a nonenumerated manufactured article at 20 per centum ad valorem under paragraph 1459 of said act.
The competing paragraphs read as follows:
Par. 773. Vegetables, if cut, sliced, or otherwise reduced in size, or if parched or roasted, or if pickled, or packed in salt, brine, oil, or prepared or preserved in any other way and not specially provided for; sauces of all kinds, not specially provided for; soya beans, prepared or preserved in any manner; bean stick, miso, bean cake, and similar products, not specially provided for; soups, pastes, balls, puddings, hash, and all similar forms, composed of vegetables, or of vegetables and meat or fish, or both, not specially provided for, 35 per centum ad valorem.
Par. 1459. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles not enumerated or provided for, a duty of 10 per centum ad valorem, and on all articles manufactured, in whole or in part, not specially provided for, a duty of 20 per centum ad valorem.
Upon the trial of the case the record in protest 961112, Abstract 47638, under the Tariff Act of 1913, was incorporated, and it was stipulated that the merchandise involved in said protest was the same as the merchandise involved herein. At the trial the protest involved herein was limited to the merchandise described on the invoices as “soup squares” and as “pea soup rolls.”
The only testimony in the case is that contained in the incorporated record of protest 961112, and it gives us very little aid. The proportion of ingredients is not shown, nor the method of manufacture.
The merchandise is designated “mushroom,” “green pea,” “lentils,” “rice,” etc., and “pea soup in rolls.” Exhibits of the merchandise in evidence show that it is put up in packages and labeled “Knorr’s Marrow Pea Soup with Bacon,” “Knorr’s Soup Bean,” “Mushroom,” “Pea Green,” “Pea Yellow.”
It is admitted that the ingredients of the merchandise are, in addition to vegetable matter, fat, salt, seasoning, and meat extract.
Appellant contends that the only vegetable substance used in the merchandise is in the form of vegetable flour, and we think the testimony warrants that conclusion.
In the case which was incorporated in the record in the case at bar the Customs Court, then the Board of General Appraisers, sus[81]*81tained the protest, holding that the merchandise was not prepared vegetables, as contended by the Government, but a nonenumerated article, as contended for by the importer.
In the case at bar, the Customs Court first sustained the protest, following its decision in protest 961112, holding the merchandise to be a nonenumerated article and dutiable under paragraph 1459. Upon motion, a rehearing was granted. Upon such rehearing the Customs Court overruled the protest upon the ground that the provision for “soups, pastes, balls, puddings, hash, and all similar forms, composed of vegetables, or of vegetables and meat or fish, or both, not specially provided for,” did not appear in the Tariff Act of 1913, under which protest 961112 was decided, and that the merchandise was properly classified under paragraph 773. The court in its opinion said:
The term “forms,” in our judgment, would not be applied to what is termed “soups.” If the term “soups” means anything in this paragraph, it means what are known as soup squares, similar in shape or consistency to “pastes, balls, puddings, hash, ” etc.
The Government relies upon the case of Anderson v. United States, 6 Ct. Cust. Appls. 108, T. D. 35344, wherein it was held that a commodity described as “Maggi’s desiccated soup in tablets” was dutiable under paragraph 252 of the Tariff Act of 1909, which paragraph reads as follows:
Vegetables, if cut, sliced, or otherwise reduced in size, or if parched or roasted, or if pickled, or packed in salt, brine, oil, or prepared in any way; any of the foregoing not specially provided for in this section, and bean stick or bean cake, miso, and similar products, forty per centum ad valorem.
The court held that whether or not the term “vegetables prepared in any way” was broad enough to cover the importation, it was clear that the product there involved was so similar to bean stick that it fell within the latter provision of the paragraph. The Government contends that this decision governs the case at bar, and invokes the rule of stare decisis. The difficulty with this contention is that the court found in the Anderson case that the substance of which the tablets there involved were composed was wholly vegetable, while in the case at bar we have a substance composed of vegetables, salt, fat, and meat extract.
We hold that paragraph 773, except where otherwise specified therein, relates only to vegetables, and not to any commodity composed in part of vegetables and in part of other substances such as meat extract.
The case of Lang v. United States, 4 Ct. Cust. Appls. 129, T. D. 33394, involved the classification of so-called bouillon cubes under the Tariff Act of 1909. The cubes were made of extract of vegetables [82]*82with a trace of meat extract sufficient for bases. The merchandise was held dutiable as a nonenumerated manufacture under paragraph 480 of said act.
We see no escape from the conclusion that because of the presence of the meat extract and fat in the merchandise it is not classifiable either as “vegetables prepared in any way,” or, by similitude, as associated with and similar to “bean stick, miso, bean cake, and similar products.”
This leaves for consideration the provision in said paragraph 773 reading: “soups, pastes, balls, puddings, hash, and all similar forms, composed of vegetables, or of vegetables and meat or fish, or both.” It is by virtue of this provision that the Customs Court overruled the protest.
We are of the opinion that this provision is not applicable to the merchandise in question for the reason that it is not composed wholly of vegetables, nor of vegetables and meat or fish, or both. Meat extract is not meat, and therefore the provision does not describe the merchandise here in issue.
Neither can the merchandise be brought within the paragraph by similitude. In Lang v. United States, supra, this court said:
That “vegetables * * * prepared,” as used in the tariff laws, finds no comparable degrees of similitude with a meat extract and by a parity of reasoning with a vegetable extract we think well within the distinguishing differences pointed out by the board in G. A. 5361 (T. D. 24513), cited with approval in Fujiyama v. United States (T. D. 30573) by the United States District Court for the Territory of Hawaii, wherein it is stated:
Without undertaking to precisely define the limits of the phrase “vegetables prepared or preserved” in said paragraph 241, we believe that it is intended to cover vegetables which have been subjected to limited processes in preparing them for consumption, of which we might cite such illustrations as canned corn, tomatoes, peas, etc. We are convinced that the provision does not include articles in which the manufacturing process has advanced so far that the identity of the vegetable is practically lost, as in the goods under consideration. It would be a somewhat violent construction, for example, to classify a cake baked from meal produced by grinding corn as a prepared vegetable on the ground that it was prepared corn. Note In re Cundill, G. A. 5228 (T. D. 24053).
We think the contention and conclusion that there is a similitude to extract of meat may be dismissed by the suggestion that there is no substantial proof in this record of any substantial portion of meat extract in the article. The proof is that vegetable extract predominates to the approximate exclusion of all other ingredients save for flavoring.
Obviously there can be no similitude of quality or texture between such a liquid extract and a vegetable or other solid.
As to use, the record shows this article to be used for the making of soup. It is a material unfit no'doubt as imported for food, but a material for making food. A vegetable food is something “eaten cooked or raw,” as was said in Nix v. Redden, supra. There is a difference in use between materials for food and food.
Upon this point we agree with the views of the board expressed in G. A. 7302 (T. D. 32030), where the same point was at issue, claiming marmite, which is of a vegetable combination, used for making soups, dutiable by similitude as a meat extract. The board very cogently and aptiy stated:
[83]*83The courts, in passing upon the question of similitude as respects similarity in the uses of articles, have stated that such similarity refers to the employment or mode of use or its effect in producing results. Murphy v. Arnson (96 U. S. 132); Pickhardt v. Merritt (132 U. S. 252, 258). In other words, two articles are not similar in use within the meaning of the statute because both may be used for food purposes, any more than all medicinal preparations may be said to be similar to one another because they are used for medicine. While beneficial results are sought to be obtained from the use of extract of beef and of the commodity here in question, it is not shown, neither do we think it can be said, that they are claimed to be similar in their effect upon the system or in the results which they produce. It is reasonable to assume that the result produced by the use of extract of beef is entirely different from that sought by the users of marmite, and apparently the reason for avoiding one would lead to the use of the. other. Hence we do not think any similarity which may exist between the two is such similarity as is provided for in the statute. As above stated, we are satisfied that marmite is a manufactured article and should be assessed as such.
Because the merchandise in question is composed of a vegetable substance and meat extract and fat,- we hold that paragraph 773 is not applicable, and it is dutiable as claimed by appellee as a non-enumerated article under paragraph 1459.
If the record in this case showed that the meat extract, fat, etc., were only a negligible part of the article, used for flavoring, we might reach a different conclusion.
The judgment of the Customs Court is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.