Dissenting.
I am constrained to disagree with the decision reached by the majority.
*10The majority opinion/in effect, reaches two conclusions: (1) that the meat involved in the instant case is still beef in a tariff sense, notwithstanding the treatment which it has undergone; and (2) that the here involved meat is not “prepared.” On the second point, the majority cites with apparent approval the Department of Agriculture definition of “prepared meat.”
It should be noted, in connection with the second point, that in C. J. Tower & Sons v. United States, 18 CCPA 152, T. D. 44362, cited in the majority opinion, this court concluded that the meat there involved was “prepared meat” notwithstanding the fact that none of the processes or steps set forth in the Department of Agriculture definition had been used on said meat.
Furthermore, there is serious question in my mind that the line of demarcation as to what is “prepared” and “not prepared” was properly drawn by the majority between the meat involved in this appeal and the “diced or cut stew meat” which the importers have tacitly admitted is prepared. The line of decision would appear to be nothing less than arbitrary.
Notwithstanding the foregoing, I am of the opinion that the decision below should be reversed, regardless of whether the instant merchandise is, in fact, “prepared” in the sense in which that term is used in paragraph 706 of the Act of 1930.
In the instant case, the merchandise was classified by the collector under the provisions of paragraph 706 of the Act of 1930 as “meats, prepared or preserved * * *.” Under well settled law, if the importer in this case is to prevail, he has to satisfy a double burden of proof: he not only must show that the collector was wrong but he must prove the correct classification as well. United States v. Danker & Marston, 2 Ct. Cust. Appls, 462, T. D. 32208; Benrus Watch Co. v. United States, 21 CCPA 139, T. D. 46467. Thus, unless the instant merchandise is dutiable under paragraph 701 as “beef * * * fresh, chilled or frozen,” we must uphold the collector’s classification, be it correct or incorrect.
I do not dispute the fact that as between the involved provisions of paragraph 701 and 706, the former is more specific. Numerous cases decided by this court and its predecessor in customs jurisdiction leave no doubt but that this is correct. Nootka Packing Co. et al. v. United States, 22 CCPA 464, T. D. 47464; Mawer Co. v. United States, 7 Ct. Cust. Appls. 493, T. D. 37108; Crosse & Blackwell Co. v. United States, 36 CCPA 33, C. A. D. 393; Brown & Co. v. United States, 6 Ct. Cust. Appls. 415, T. D. 35977.
*11The question which- must be answered, however, is not whether “beef * * * fresh, chilled or frozen” is more specific than “meats * * * prepared,” but whether or not the instant merchandise is beef for tariff purposes. For as aforesaid, if the merchandise is not dutiable under paragraph 701, the collector’s classification must be sustained.
In the Nootka Packing case, supra, this court stated:
* * * an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article. * * * [Emphasis added.]
While it cannot be disputed that “beef” is an eo nomine designation, I am of the opinion that the Government has proved commercial designation of that term, which designation excludes the here involved merchandise.
Four witnesses testified on behalf of the Government in the instant case. Three of these witnesses stated categorically that, based on their experience, the term “beef” had a definite, uniform and general meaning in the United States at, prior to and subsequent to June 17, 1930, the effective date of the Tariff Act of 1930. As designated, the term included only carcass beef and the various cuts thereof with the bone naturally in or with, the bone naturally' out. This testimony stands uncontradicted. It was not weakened, despite persistent cross-examination. In light of these facts, I am of the opinion that it is sufficient to establish commercial designation of the term “beef.”
Since there.is no question but that the instant merchandise has been so processed that it no longer,.satisfies the aforestated designation of “beef,” it follows that the instant merchandise cannot properly be dutiable under paragraph 701. The importer having failed to carry his double burden of proof, the collector’s classification should stand.