Kraft Phenix Cheese Corp. v. United States , 1934 CCPA LEXIS 146 ( 1934 )

CONCURRING OPINION

Bland, Judge,:

I concur in the conclusion reached by the majority because, in this instance, the article was marked, and while the ■container was not marked, the majority holds that the additional duty does not apply where the article is marked and the container is not marked. I really have the impression that Congress intended to impose the duty if either the container or the article was not marked, but I feel sure that Congress never intended to permit the importation of an unmarked article, without the imposition of the additional duty, if it could be marked without injury, etc., even though the container was marked. If no duty is imposed for failing to mark an article, it seems certain that Congress has departed from the well-known policy of requiring imported articles to be marked.

Under this decision and the decision handed down concurrently herewith, Givaudan Delawanna, Inc. v. United States, 22 C.C.P.A. (Customs) 115, T.D. 47104, great boxes of metal castings may come into this country unmarked, and if all of them are not examined by the customs officials, they may go to the consumer without being marked. The importer runs no risk of incurring additional duty and, therefore, the purpose of Congress is not furthered. Of course it intended the article and container both to be marked. As to whether' it intended the additional duty to apply for failure to mark the container if the article was marked, there is reasonable grounds for difference of opinion, but, in my judgment, there is no justification for a conclusion that Congress intended that no additional duty should apply if the article was not marked and was capable of being marked. My views are more fully expressed in the case of Givaudan Delawanna, Inc. v. United States, supra.