concurring.
The member^ of the court having observed that Exhibit 1 is translucent, the majority premises its decision on “the one proposition not open to dispute and not contested by anyone,” namely: that if the imported decanters are not opaque they cannot be stoneware.
However, Schedule 5, Part 2, headnote 2(c) states that stoneware is “naturally opaque (except in very thin pieces).”
Thus, the majority is in error in either of two respects: (1) Just because no one contests the stated proposition that if the imported decanters are not opaque they cannot be stoneware is no license for this court to fail to apply the statute in full by considering the provision “except in very thin pieces”; or (2) If the majority is holding that Exhibit 1 is not a very thin piece, it has, sua sponte, decided a new issue, not raised before or decided by the Customs Court and not argued before this court, against appellee. Cf. Anderson Organization v. United States, 46 CCPA 47, C.A.D. 694 (1958); United States v. Hirschberg, 42 CCPA 61, C.A.D. 571 (1954). See also McGrath v. Manufacturers Trust Co., 338 U.S. 241, 249 (1949); Kelley v. Everglades Drainage District, 319 U.S. 415, 421-22 (1943).
The majority states: “There is no evidence that any part of the decanter is ‘very thin.’ ” Perhaps this statement implies that appellee has not carried its burden of proving that Exhibit 1 is a very thin piece. If so, this too would be a new issue.
The dilemma confronting the majority and the frustration revealed in the dissenting opinion could be avoided by merely taking a basic approach to statutory interpretation. The source of the error of the Customs Court and of the majority and dissenting opinions is the assumption that, because the evidence shows the merchandise has clay as an essential ingredient, any clay will do for purposes of Schedule 5, Part 2, headnote 2(c). However, it would be absurd to imagine that the words “contains clay as an essential ingredient” manifests a Congressional intent to permit use of clay, the composition of which would not produce what is commonly and commercially known as “stoneware.”
In Schedule 5 Tariff Classification Study 79 (1960), the following discussion appears:
The definition of “stoneware” (headnote 2(c)) has been modified. Objection was made at the hearing to the provision that stoneware has a body which contains by weight 50 percent or more of “stoneware clay”. Doubt was expressed of the general acceptance of the term “stoneware clay”, as identifying any specific type of clay, and attention was directed to potential administrative and interpretive problems which could result from the definition. The consensus of all who expressed opinions is that stoneware has a body which is usually, though not always, impervious to water, and which is opaque, except in very thin pieces. A subsequent opinion was expressed that the body of stoneware may have a water absorption of as much as 3.0 percent. The proposed definition reflects these opinions.
*93Thus, the legislative history shows that the requirement that stoneware have a body containing “stoneware clay” was abandoned because there was doubt over the general acceptance of that term as identifying any specific type of clay. There can be no doubt, however, that the clay used must produce what is commonly and commercially known as “stoneware.”1
The record before this court shows without contradiction that the clay from which Exhibit 1 was made is not a type which produces stoneware. The unrebutted expert testimony of Mrs. Heath was that stoneware is manufactured “only from fire clay or iron bearing ball clays and not from white clays”; further, that fire clay always contains iron and usually titanium. Thiemecke, another expert witness, when asked whether he had ever done any work with fire clay, answered:
Yes, I have done some work on it. . .1 was investigating the development of stoneware bodies. There we used fire clays and some ball clays for this work.
He further testified that iron is always found in fire clay.
He was asked, “What color does a fire clay fire?” His answer was:
This is á function of the firing. Now, if you fire in an oxidizing condition you get an ivory to a tan color, or it could go red, depending upon much iron was in the clay. If you fire in a reducing condition, then you would throw it over to the gray side.
The Customs Court gave its opinion that the color of the imported decanters is not determinative of whether or not they are susceptible to classification under item 583.31, TSUS, because of the phrase “not commonly white” in headnote 2(c); that the phrase implies the possibility that stoneware bodies may fire white, although the bulk of stoneware articles usually possess non-white bodies. Notwithstanding appellant’s argument that the phrase “not commonly white” is but an understatement of the words “not white,” the phrase appears to represent recognition by Congress of the possibility that a stoneware body might be white (e.g. colored white). As noted in Schedule 5 Tariff Classification Study 100 (1960), the predecessor provision for stoneware was paragraph 211 of the Tariff Act of 1930, ch. 497, Pub. L. No. 361, 46 Stat. 603-04, which read in part as follows:
Par. 211. Earthenware and crockery ware composed of a nonvitrified absorbent body, including white granite and semiporcelain earthenware, and cream-colored ware, terra cotta, and stoneware . . .; plain white, plain yellow, plain brown, plain red, or plain black, not painted, colored, tinted, stained ... 10 cents per dozen pieces and 45 per centum ad valorem; painted, colored, tinted, stained ... 10 cents per dozen pieces and 50 per centum ad valorem. [Emphasis supplied.]
*94Thus, the possibility of a white-colored stoneware was provided for.2 The change in language to “not commonly white” in the TSUS was unaccompanied by any suggestion of intent to foreclose the possibility that stoneware might be white. However, as set forth earlier, the record before this court negates the Customs Court’s suggestion that there could be an absence of iron or titanium in the clay from which a stoneware body is composed so that it would fire white.
The Customs Court concluded that appellee had established that classification of the imported merchandise as chinaware was improper by distinguishing chinaware and stoneware and by showing that the merchandise is stoneware. I do not agree that appellee has distinguished chinaware and stoneware. Although stoneware, for purposes of item 533.31, TSUS, must be fine-grained, so must chinaware. The Customs Court said that the test report of the United States Testing Company was “some evidence” that clay is an essential ingredient of appellee’s merchandise, as required by the TSUS definition, but clay can be an essential ingredient of some chinaware (the TSUS definition does not require “clay as an essential ingredient”).3 Although the TSUS definition of stoneware does not preclude its being white, chinaware has a white body (unless colored). Finally, although stoneware is “naturally opaque (except in very thin pieces),” the unrebutted evidence shows that some chinaware (e.g. dinnerware for hotel and restaurant use) is opaque. This is where the argument of appellee, both before the Customs Court and on appeal, that translucency distinguishes chinaware from stoneware, must fail. As Thiemecke testified, “Translucency is a function of thickness.” Mrs. Heath testified that whether chinaware would normally be translucent “depends upon how thin it is” and that “Hotel china sometimes is a quarter of an inch thick.” The Dictionary of Tariff Information 118 (1924) states, with respect to American china:
Its extensive domestic production is essentially as heavy club or hotel tableware, too thick to appear translucent.
In 1 Summary of Tariff Information 481 (1929) the following statement appears:
Domestic vitreous china is a comparatively heavy, opaque ware made almost wholly for hotel and restaurant use.
*95Nor do I agree that appellee has sustained its burden of proving that the merchandise is stoneware. Appellee has produced no evidence to show that iron or titanium was present in the clay from which the imported decanters were produced. Indeed, the test report approved by appellee’s witness West shows that neither iron nor titanium was present in the sample of the decanters. If appellee considered the expert testimony of Mrs. Heath, that stoneware is manufactured only from fire clay or iron-bearing ball clays and not from white clays, to be erroneous, its burden was to rebut that testimony.
In view of the foregoing, I concur in reversing the judgment of the Customs Court.
In the Tariff Classification Study, supra, at 263, appears the following statement by Mr. J. Bradley Colburn, an attorney representing an association of 13 importers of English earthenware and chinaware:
The types and amount of clay used in making stoneware differ so as to make the proposed test, based on amount of clay of any description used therein, wholly impracticable. The only sound test would seem to be that which has existed heretofore; namely, to classify as “stoneware” products which are commonly and commercially so known.
Cf. United States v. Oakville Co., 56 CCPA 1, 8, C.A.D. 943, 402 F. 2d 1016, 1021 (1968).
Use of the word “colored” in classifying articles of stoneware was not original with paragraph 211, having been initially inserted in paragraphs 93 and 94 of the Tariff Act of 1909, ch. 6, Pub. L. No. 5, 36 Stat. 18, from which paragraph 211 was derived. It was inserted to show the intent of Congress that an article of a solid color was “ornamented or decorated.” Notes on Tariff Revision 105 (1909). Use of the word “colored” in association with the words “painted,” “stained,” etc., also shows an intent to include the colored body of an article, rather than only the external surface, since if “colored” meant only covering the external surface (e.g. by painting) its use would be superfluous. See United States v. Wakem & McLaughlin, 2 Ct. Cust. App. 411, 414-15, T.D. 32170 (1912). Coloring need not necessarily be a super-added process applied after formation of the article. Cf. United States v. Todd & Co., 11 Ct. Cust. App. 50, 57, T.D. 38690 (1921).
Thiemecke testified that his company used ball clays and china clays (kaolin) in the manufacture of hotel china. Stowell testified that ball clays, feldspar, and silica are basically the ingredients of fine china.