dissenting.
The importer urges here, as below, that the provision for aluminum bars and rods is an eo nomine designation which, without terms of limitation or contrary legislative intent, includes all forms of aluminum bars and rods, whether solid or hollow, and relies on Schade & Co. v. United States, 5 Ct. Cust. Appls. 465, T.D. 35002; Smillie & Co. v. United States, 11 Ct. Cust. Appls. 199, T.D. 38966; and Nootka Packing Co. et al. v. United States, 22 CCPA 464, T.D. 47464. In my opinion those precedents are applicable here, and the importer has satisfactorily discharged its dual burden of proof.
First, it would seem that the importations satisfy the requirements of the dictionary definitions if those definitions are given their usual and ordinary meanings. I am unable to agree with the rather strained interpretation of the majority. Indeed, under that interpretation it is puzzling to know just what, if anything, could be considered a “bar” or a “rod.” Surely a curtain rod, for example, is no less a. rod *92merely because it is “long in proportion to its breadth and thickness,” or because it is hollow rather than solid.
Second, the importer’s witnesses appear to be experienced and well qualified to testify in support of the importer’s position.4 I am inclined to give their testimony greater weight than that of the Government witness who, among other things, rather positively stated that a rod would have to be “in excess of %th inch diameter.”5
Certainly I am unable to agree with the majority that “Consequently even if appellant had established that the tubes are called ‘hollow bars’ and ‘hollow rods’ that evidence would not be germane to the issue of whether they are ‘bars’ and ‘rods’ as those terms are used in the statute.” Quite the contrary, such evidence is vital to the issue set out by appellant that
Neither before the trial Court nor in the instant appellate proceeding has the importer contended that the articles here involved are not aluminum tubes. The witnesses who testified for both parties readily acknowledged that they are sometimes known as and referred to as tubes. However, the appellant contends that the record evidence demonstrates that the articles under protest are also known and referred to by those dealing in such wares as bars and rods and are embraced within the common and commercial meaning of the terms “bar” or “rod” as used in paragraph 374 of the 1930 Tariff Act.
The majority begins with the proposition that the instant imports are “tubes” and therefore can be nothing else. It should be noted, however, that Congress made no express provision for aluminum tubes, but did so for aluminum “bars” and “rods.” Surely the latter is more specific than the usual “basket” provision of paragraph 397.
Finally, appellant points out that in paragraph 304 Congress distinguished between steel products, including “billets and bars whether solid or hollow;” and would have done so here had it intended to distinguish between solid and hollow aluminum rods and bars. While that conclusion does not necessarily follow, it is a reasonable assumption and, on the record here, I am disposed to resolve the doubt in favor of the importer. Star-Kist Foods, Inc. v. United States, (Bruno Scheidt, Inc., Party In Interest, 45 CCPA 16, C.A.D. 666.
Importer’s witness Katz testified :
Q. Have you seen used and heard used the terms bar and rod in connection with hollow objects?
A. Yes, sir.
Q. Under what circumstances?
A. I have seen them in advertisements, in brochures, both here in the United States and abroad, as well as we have received invoices under that category.
Importer’s witness Bossert testified :
Q. Have you ever heard the manufacturer refer to these components in any particular phraseology?
A. As tubing.
Q. Anything else? A. As bar; as rods.
Appellant directs our attention to the following passage in its brief: “Moreover, the witness admitted that the dictionary definitions of those terms did not require that they be solid. Also, the limitation of % of an inch as a minimum diameter for an article to qualify as a rod is contrary to a finding of the same division of the trial Court that a round form of aluminum alloy %a of an inch in diameter is a rod within the common meaning of that term as used in paragraph 374. Mohawk Iron & Steel Co. v. United States, 30 Cust. Ct. 274, C.D. 1533.