dissenting.
I disagree with the reasoning and decision of the majority since I believe that the evidence of record does not support the position that the ceramic articles in question are not opaque.
The majority opinion points out the clear error of the Customs Court in finding that all of the witnesses conceded that Exhibit 1 is opaque. I am compelled to remand this case, however, for the purpose of determining whether there is substantial evidence of record to support the conclusion that the goods in question are in fact opaque. I do not believe that the examination conducted by the majority with their “penlight type of flashlight powered by two ‘AA’ cells and a Christmas tree bulb of white glass of approximately 7 watts” constitutes evidence of record, regardle'ss of whether appellee “challenges” this court to make such an unauthorized test.
Although we stated in Montgomery Ward & Co. v. United States, 61 CCPA 101, C.A.D. 1131, 499 F.2d 1283 (1974) that in a classification case, we are not limited to review of questions of law and can consider whether the lower court’s findings of fact conform to the weight of the evidence, nowhere, to my recollection, have we taken it upon ourselves to generate our own evidence while completely disregarding the record below. To generate evidence ourselves in the absence of the interested parties, is, in my opinion, a violation of due process. I am certain that the majority was motivated by an attempt to reach what they consider to be the correct conclusion in this appeal. However, justice cannot be accomplished by disregarding established rules of procedure or the constitutional limitations on the jurisdiction of a reviewing court. See Babcock v. Berkson, 121 Cal. App. 2d 710, 264 P.2d 155 (1953). Except where otherwise provided by constitutional or statutory provision, an appellate court is without power to make its own independent findings of fact. See Culinary Institute of America v. Board of Zoning App., 143 Conn. 257, 121 A.2d 637 (1956); Paurley v. Harris, 77 Idaho 336, 292 P.2d 765 (1956); Bills v. Boettcher, 116 Ind. App. 631, 65 N.E.2d 495, *96rehearing denied, 116 Ind. App. 631, 66 N.E.2d 131 (1946); Himelforb v. Novadel Agene Corp., 305 Mass. 446, 26 N.E.2d 320 (1940).
The rationale underlying such a prohibition becomes clear in this case. There is no testimony as to whether the bases of the vessels of Exhibit 1 are “very thin” within the meaning of the TSUS; and, more importantly, there is no opportunity for appellee to rebut the presumption that the majority has made that the goods are not, in fact, very thin. Similarly, there is no evidence that the light source used to determine translucency would be accepted by an expert as being proper. I cannot discern the basis for the majority conclusion that a 7, rather than a 5 or 50 or any other watt “Christmas tree bulb,” is the proper instrument to be used in determining opacity or lack thereof. One may argue, I suppose, that a “penlight” flashlight is reasonably weak so that if one could see through the goods while using such a light source, the goods must be translucent. But again, appellee has had no opportunity to rebut this argument with either cross-examination or an expert witness of its own.
In essence, I am in fundamental agreement with the following statement abstracted from 5 C.J.S. Appeal & Error §1460(d) (1958) [citations omitted]:
The reviewing court is confined to the facts specifically found by the trial court, in the absence of a request for a finding based on the evidence relied on. Conversely, the reviewing court cannot accept as true facts, relied on by a party, which the trial court did not find and was not requested to find. The reviewing court may not make findings of fact for or against appellant, and cannot consider evidence to find facts or make a decision upon them or supplement the facts found by the trial court with any additional facts by means of inferences or presumptions from the direct findings reported.
The majority states that appellee failed to carry his burden of proof to show that the importations are “stoneware” by failing to establish the opaqueness of the imports “primarily because the evidence of record shows translucency.” I disagree. West was the only witness to give an opinion as tti whether the imports were opaque. West “found the material * * * to be opaque.” [Emphasis added.] None of the other witnesses stated that the goods were not opaque. Clearly this evidence of record does not “show translucency.”
I also disagree with the reasoning and decision of the concurring opinion, which concludes that the goods are not stoneware solely because they were not proved to have been made with clay containing iron or titanium. This conclusion lacks statutory foundation because the TSUS definition of stoneware does not require it to be made with any particular kind of clay; it states only that stoneware “contains clay as an essential ingredient.”
The legislative history on the point indicates that the term “stoneware clay” was originally proposed as part of the definition of stoneware *97in the TSUS, but was abandoned because no such thing as “stoneware clay” was known to the trade:
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 interpretative problems which could result from the definition. [Tariff Classification Study, Schedule 5, p. 79 (I960).]
The “doubt” referred to was expressed at the September 18, 1958, hearings by Mr. J. Bradley Colburn, an attorney representing an association of 13 importers of English earthenware and chinaware, as follows:
We have made diligent inquiry of manufacturers and other sources available to us thus far and we are unable to determine satisfactorily what stoneware clay is. [Id. at 228.]
Mr. Colburn followed up his oral testimony with a written memorandum dated October 1, 1958, in which he stated:
Diligent inquiry both here and in England has failed to disclose any manufacturer, importer, or distributor who is familiar with or understands the meaning of “stoneware clay.” [Id. at 263.]
It is manifest from the express words of the statute as finally adopted and from its legislative history that the TSUS definition of stoneware does not require any particular kind of clay.
The concurring opinion admits that the TSUS does not specify the kind of clay from which stoneware is made, but finds such a requirement in the testimony of two witnesses, Heath and Thiemecke. It is difficult to see how this testimony can be deemed to limit the plain words of the statute, particularly in light of the legislative history just cited. It does not even purport to convey the understanding of the trade at the time the TSUS was enacted. Indeed, the main testimony relied on, that of Edith Heath, to the eifect that stoneware is manufactured “only from fire clay or iron bearing ball clays and not from white clays,” was not in response to a direct question as to the kinds of clay from which stoneware could be or has been made. The question she was asked, in the course of direct testimony about how her company made its stoneware, was simply, “Is stoneware manufactured from fire clay?” Such a response as she gave cannot be expected to have been given the witness’s full consideration of all possible compositions for making stoneware. Mrs. Heath’s statement that stoneware is not made from white clays may have been her impression, but that impression does not square with the statutory definition which includes the phrase “not commonly white,” which clearly implies the existence of white stoneware. How can white stoneware be made without using white clay?
Mr. Thiemecke was a highly qualified witness in the technology of ceramics, but he did not testify that stoneware must be made from clays containing iron or titanium.