JACKSON, Judge.
The United States has appealed from a judgment of the United States Customs Court, Third Division, one judge dissenting, sustaining two protests by appellee in which it was claimed that certain imported merchandise invoiced as barley bran was properly dutiable pursuant to the provisions of paragraph 731 of the Tariff Act of 1930, 19 U.S.C.A. § 1001, as screenings. The paragraph, as amended by the Second Trade Agreement with Canada, 53 Stat. 2386, T.D. 49752, reduced the duty on screenings of grain to the rate of 5 per centum ad valorem.
Other claims were made in the protests but were not relied upon in the trial court and are not before us.
The Collector of Customs, at the port of San Diego, assessed the imported merchandise as a non-enumerated manufactured article at the rate of 20 per centum ad valorem in accordance with paragraph 1558.
The involved statutes read as follows:
“Par. 1558. 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.”
Par. 731, as amended by T.D. 49752.
“Screenings, scalpings, chaff, or scourings of wheat, flaxseed, or other grains or seeds:
Unground, or ground........5% ad. val.”
The suit was tried in San Diego, California, and two witnesses appeared on behalf of appellee. The government rested at the end of plaintiff’s case.
One of the witnesses for appellee, who was the broker, merely identified the entries and stated the name of the firm which [809]*809produced the imported merchandise. The second witness was the superintendent of the plant where the barley malt was made.
It appears from the testimony that barley was purchased consisting of “light barley, broken barley, perhaps wheat; perhaps oats, and perhaps corn” all depending upon where the barley was grown. It is first cleaned in a machine by separating the whole barley grains from the broken barley, corn, oats, or other material that may be with the grain. In the cleaning machine, the material, except the whole barley grains, drops through holes in a screen. The cleaned grain is then stored in a bin. In the making of malt, as much of the barley as is to be used is weighed and dumped into what is called a “steep tank.” The tank is then filled with water in which the barley is kept for a period of from 38 to 58 hours, depending upon the hardness of the grain. In the steeping, the grain acquires 50% of moisture. After it has been so moistened, the grain is placed in a germinating drum where roots or sprouts grow from the end of the grain. The period of germination was stated to be about 6 days and terminates when the sprouts are from % to % inches long. It appears that by germination the starch of the barley is converted into sugar. After having been germinated, the article is placed in a drying kiln in which there is a temperature of not more than 120° for the first 24 hours. Whether that temperature is centigrade or Fahrenheit the record does not show. After the initial drying, the article is transferred to another kiln in which there is a temperature of 160° for the first 20 hours and 175° for the last 4 hours. At the end of the drying process the grain is said to contain about 3.5% of moisture. After the drying process has been completed the product enters a machine in which the sprouts are removed and the final product, without the sprouts, is commercial malt.
The sprouts are then mixed with the product of the screening in the ratio of about 2 parts of screenings to 1 part of sprouts. The mixture is then put through a “hammer mill” wherein it is beaten through a small perforation and emerges as a fine mixture which is the involved merchandise.
In sustaining the protests, the opinion of the majority, Abstract 54528, seemingly relied strongly on the case of Ralph Boone v. United States, 19 Cust.Ct. 62, C.D. 1068. The plaintiff in that case is the appellee here. The importation was invoiced as barley bran. It was given the same classification by the Collector at San Diego, as was the merchandise involved herein and it was claimed there, as here, to be properly dutiable as screenings.
It appears from the decision in that case that the quantity of sprouts used in making the imported merchandise was between 3 and 5 per centum, and sometimes less than 3 per centum, by weight of the mixture. It appeared without contradiction that in commercial transactions a quantity of 15 to 20 per centum by bulk of sprouts had never been heard of in the making of barley bran.
The Third Division of the United States Customs Court sustained the protest of plaintiff in that case, but in the course of its opinion stated if conclusive evidence showed that the sprouts had been deliberately mixed with barley screenings, the position of the government might have been tenable, but that no such evidence appeared in the record. It was further stated by the court that the contention of counsel for the government that the sprouts constituted 15 per centum of the bulk of the merchandise without any “corroborative evidence” was not sufficient to overcome the uncontradicted evidence of the two witnesses appearing for plaintiff that the sprouts in the imported merchandise ranged from only 2 to 5 per centum by weight.
The conclusion of the trial court that the imported merchandise was merely screenings would seem to be based upon the fact that the imported merchandise was not made by deliberately mixing stated proportions of sprouts with stated proportions of screenings.
Obviously, the commodity before us here is not the same as that which was before the Customs Court in the Boone case, supra. Here, it clearly appears that the [810]*810sprouts were deliberately mixed with the screenings from the harley in the proportion of one part of sprouts to two parts of screenings. Therefore, while the imported merchandise m the Boone case, supra, and the instant case are similar for the reason that in each case the involved merchandise was a mixture of screenings and sprouts, there is no further similarity between the goods.
The judgment of the trial court in the Boone case, supra, was not appealed. The case was decided October 29, 1947.
In the course of its decision in that case, the trial court noted that the involved merchandise was prepared in the same manner as the barley bran in controversy in the case of Ricks v. United States, 33 C.C.P.A., Customs, 1. The Ricks case, supra, was decided by us on May 24, 1945. Why our decision in that case was not discussed in the decision of the Boone case, supra, we are unable to determine from the decision. The appellant there was the same broker who testified for appellee in the instant case. The imported merchandise in that case was classified as was the merchandise herein, and was claimed to be properly dutiable as “by-product feeds obtained in milling wheat or other cereals,” pursuant to paragraph' 730 of the Tariff Act of 1930, as modified by the Trade Agreement with Canada, T. D. 49752. It does not appear from our decision in the Ricks case, supra, what percentages of sprouts and screenings were mixed. In the present case a predetermined quantity of screenings was deliberately mixed with a predetermined quantity of sprouts, unquestionably to produce a predetermined result for a predetermined purpose.
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JACKSON, Judge.
The United States has appealed from a judgment of the United States Customs Court, Third Division, one judge dissenting, sustaining two protests by appellee in which it was claimed that certain imported merchandise invoiced as barley bran was properly dutiable pursuant to the provisions of paragraph 731 of the Tariff Act of 1930, 19 U.S.C.A. § 1001, as screenings. The paragraph, as amended by the Second Trade Agreement with Canada, 53 Stat. 2386, T.D. 49752, reduced the duty on screenings of grain to the rate of 5 per centum ad valorem.
Other claims were made in the protests but were not relied upon in the trial court and are not before us.
The Collector of Customs, at the port of San Diego, assessed the imported merchandise as a non-enumerated manufactured article at the rate of 20 per centum ad valorem in accordance with paragraph 1558.
The involved statutes read as follows:
“Par. 1558. 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.”
Par. 731, as amended by T.D. 49752.
“Screenings, scalpings, chaff, or scourings of wheat, flaxseed, or other grains or seeds:
Unground, or ground........5% ad. val.”
The suit was tried in San Diego, California, and two witnesses appeared on behalf of appellee. The government rested at the end of plaintiff’s case.
One of the witnesses for appellee, who was the broker, merely identified the entries and stated the name of the firm which [809]*809produced the imported merchandise. The second witness was the superintendent of the plant where the barley malt was made.
It appears from the testimony that barley was purchased consisting of “light barley, broken barley, perhaps wheat; perhaps oats, and perhaps corn” all depending upon where the barley was grown. It is first cleaned in a machine by separating the whole barley grains from the broken barley, corn, oats, or other material that may be with the grain. In the cleaning machine, the material, except the whole barley grains, drops through holes in a screen. The cleaned grain is then stored in a bin. In the making of malt, as much of the barley as is to be used is weighed and dumped into what is called a “steep tank.” The tank is then filled with water in which the barley is kept for a period of from 38 to 58 hours, depending upon the hardness of the grain. In the steeping, the grain acquires 50% of moisture. After it has been so moistened, the grain is placed in a germinating drum where roots or sprouts grow from the end of the grain. The period of germination was stated to be about 6 days and terminates when the sprouts are from % to % inches long. It appears that by germination the starch of the barley is converted into sugar. After having been germinated, the article is placed in a drying kiln in which there is a temperature of not more than 120° for the first 24 hours. Whether that temperature is centigrade or Fahrenheit the record does not show. After the initial drying, the article is transferred to another kiln in which there is a temperature of 160° for the first 20 hours and 175° for the last 4 hours. At the end of the drying process the grain is said to contain about 3.5% of moisture. After the drying process has been completed the product enters a machine in which the sprouts are removed and the final product, without the sprouts, is commercial malt.
The sprouts are then mixed with the product of the screening in the ratio of about 2 parts of screenings to 1 part of sprouts. The mixture is then put through a “hammer mill” wherein it is beaten through a small perforation and emerges as a fine mixture which is the involved merchandise.
In sustaining the protests, the opinion of the majority, Abstract 54528, seemingly relied strongly on the case of Ralph Boone v. United States, 19 Cust.Ct. 62, C.D. 1068. The plaintiff in that case is the appellee here. The importation was invoiced as barley bran. It was given the same classification by the Collector at San Diego, as was the merchandise involved herein and it was claimed there, as here, to be properly dutiable as screenings.
It appears from the decision in that case that the quantity of sprouts used in making the imported merchandise was between 3 and 5 per centum, and sometimes less than 3 per centum, by weight of the mixture. It appeared without contradiction that in commercial transactions a quantity of 15 to 20 per centum by bulk of sprouts had never been heard of in the making of barley bran.
The Third Division of the United States Customs Court sustained the protest of plaintiff in that case, but in the course of its opinion stated if conclusive evidence showed that the sprouts had been deliberately mixed with barley screenings, the position of the government might have been tenable, but that no such evidence appeared in the record. It was further stated by the court that the contention of counsel for the government that the sprouts constituted 15 per centum of the bulk of the merchandise without any “corroborative evidence” was not sufficient to overcome the uncontradicted evidence of the two witnesses appearing for plaintiff that the sprouts in the imported merchandise ranged from only 2 to 5 per centum by weight.
The conclusion of the trial court that the imported merchandise was merely screenings would seem to be based upon the fact that the imported merchandise was not made by deliberately mixing stated proportions of sprouts with stated proportions of screenings.
Obviously, the commodity before us here is not the same as that which was before the Customs Court in the Boone case, supra. Here, it clearly appears that the [810]*810sprouts were deliberately mixed with the screenings from the harley in the proportion of one part of sprouts to two parts of screenings. Therefore, while the imported merchandise m the Boone case, supra, and the instant case are similar for the reason that in each case the involved merchandise was a mixture of screenings and sprouts, there is no further similarity between the goods.
The judgment of the trial court in the Boone case, supra, was not appealed. The case was decided October 29, 1947.
In the course of its decision in that case, the trial court noted that the involved merchandise was prepared in the same manner as the barley bran in controversy in the case of Ricks v. United States, 33 C.C.P.A., Customs, 1. The Ricks case, supra, was decided by us on May 24, 1945. Why our decision in that case was not discussed in the decision of the Boone case, supra, we are unable to determine from the decision. The appellant there was the same broker who testified for appellee in the instant case. The imported merchandise in that case was classified as was the merchandise herein, and was claimed to be properly dutiable as “by-product feeds obtained in milling wheat or other cereals,” pursuant to paragraph' 730 of the Tariff Act of 1930, as modified by the Trade Agreement with Canada, T. D. 49752. It does not appear from our decision in the Ricks case, supra, what percentages of sprouts and screenings were mixed. In the present case a predetermined quantity of screenings was deliberately mixed with a predetermined quantity of sprouts, unquestionably to produce a predetermined result for a predetermined purpose. The final ground mixture cannot be properly termed screenings nor sprouts. It is a different material than either of its constituents.
In the Ricks case, supra, the Third Division of the United States Customs Court overruled the protest of appellant and on appeal its judgment was affirmed by us. In the course of our decision in that case, we held the imported merchandise to be a manufactured by-product, as had been held by the trial court. .While the issue there was as between by-product feeds obtained in the milling of wheat or other cereals and a non-enumerated manufactured article not specially provided for, and here, the issue is between, screenings and a non-enumerated manufactured article not specially provided for, nevertheless, as far as the imported merchandise in that case is concerned, we held it to be a manufactured by-product. We can see no reason why there should be a different holding in the present appeal with respect to the character of the involved merchandise.
We do not deem it necessary to set out the dictionary definitions, nor the cases wherein screenings have been defined. The common meaning of the term is generally and well known.
We are in accord with the reasoning appearing in the dissenting opinion of the trial court herein. We agree, as was said in that opinion, that’ the malt sprouts are not screenings in the generally accepted sense. They cannot reasonably be so denominated. They are not part of the grain before it has been germinated and are certainly a product which is obtained in the manufacturing of malt. The dissenting opinion properly pointed out that merely because the sprouts were cleaned from the malt does not make them screenings.
In passing, it may be observed that •malt sprouts are a distinct commodity and appear as such in paragraph 730 of the Tariff Act.
It has been suggested that the doctrine of res judicata applies to the instant case. It was not invoked in the trial court and has not been invoked here.
There is nothing in the record or briefs before the trial court or here to warrant injecting the applicability of that doctrine. It is generally known by all familiar with customs litigation that the doctrine does not apply in cases involving classifications o.f imported merchandise. It has never been applied by this or any other court and we cannot see how it ever will be. That it should not be applied and the cogent reasons why it has no place in such customs litigation is set forth at length in [811]*811the opinion of the late Chief Justice Taft in the case of United States v. Stone & Downer Company, 274 U.S. 225, 47 S.Ct. 616, 71 L.Ed. 1013. What was set out there is still the law.
It is to be observed that even if the doctrine of res judicata were applicable in cases such as this it could not apply here for the reason hereinbefore stated that the involved imported merchandise is not the same as that involved in the preceding Boone case, supra.
For the reasons herein stated, the judgment of the United States Customs Court is reversed.