¶1CONCURRING OPINION
¶2I concur in the result but not in the opinion, as I did in T. H. Gonzalez v. United States, 40 Cust. Ct. 9, C. D. 1949, when this case was before us earlier.
¶3The entry which is the subject of this protest covered three carloads of fluorspar. The customs laboratory analyses showed, as to two of the carloads, a calcium fluoride content of more than 97 percent; and as to the third carload a calcium fluoride content of less than 97 percent. That is the breaking point, 97 percent, that has been established for assessment at different duty rates.
¶4Plaintiff accepts the customs laboratory analyses as to the two carloads where report is favorable to its claim. Objection is made only to the test as it was applied to the third carload which, using the same method that was used as to the other two carloads, shows that the fluor-spar of that one carload did not measure up to the 97 percent content necessary in order to get the benefit of the lower duty rate.
¶5This is an inconsistent position, to say the least.