CONCURRING OPINION
Cline, Judge:I concur in the opinion of my associate Judge Oliver that the burden of going forward with the evidence and establishing the applicability of the mixed-materials clause is upon the Government.
In my opinion, at the conclusion of the first hearing, plaintiff had established prima facie that the merchandise was not classifiable under paragraph 5,, but was dutiable under paragraph 1558, following Quong Yuen Shing Co. v. United States, 31 C. C. P. A. 43, C. A. D. 247. The fact that the court restored the case to the calendar for further proof as to the component material of chief value does not alter the fact that the burden of going forward with the evidence rested on the defendant, the party who first interjected that claim.
The rules as to burden of proof and burden of going forward with the evidence are stated in United States v. Edson Keith & Co., 5 Ct. Cust. Appls. 82, T. D. 43128, as follows (p. 83):
The Government contends, and correctly, that the burden of proof was on the-importers all the way through the case to show that the collector was wrong and that he was right. As a corollary to that proposition.it follows that unless the importers produced some evidence substantiating prima facie the correctness of his claim, no duty was imposed on the Government to sustain the correctness of the collector’s classification or to make proof that the importers were wrong.
The burden of proof — that is to say, the obligation imposed by law on a litigant of establishing a fact by evidence — never shifts; but the duty of meeting or overcoming evidence in favor of or against any given contention may shift from one side to the other during the progress of the trial, according as the nature and weight of the proofs tend to support or controvert the fact or facts, the ascertainment of which is necessary for the proper judicial determination of the case. Central Bridge Corporation v. Butler (2 Gray, 68 Mass., 130-132); Scott v. Wood (81 Cal., 398, 400-402).
In that case the collector classified the merchandise as artificial leaves, fruits, flowers, and grasses, and the importers claimed that. *163the goods were manufactures in part of metal. The Government contended at the trial that if the merchandise could not he classified as artificial leaves or flowers, it should be classified as manufactures in chief value of cotton or silk. There was no evidence from which it could be determined whether silk, wire, or cotton was the component of chief value and it was held that the importers had made out a prima facie case and that it was incumbent upon the Government to put in evidence to sustain the collector’s action or to prove that the goods were not dutiable under the paragraph claimed in the protest. The court said further (p. 84):
* * * The goods were not classified as articles composed in chief value of cotton or silk and there was neither presumption nor evidence of any kind that the merchandise was of that character. There was evidence that it was of the character claimed by the importers. Consequently, although the provisions for manufactures in chief value of cotton or silk are more specific than the provision for articles in part of metal, the goods here in controversy must be classified under the metal paragraph in accordance with the weight of the evidence, there being no evidence showing or tending to show that they are in chief value of silk or cotton.
There is no substantial difference between that case and the instant case. Tbe importer here has shown that the collector’s classification was erroneous and has offered evidence that the merchandise is of the character claimed; thereafter the burden of going forward with the evidence shifted to the Government.
In the instant case it is the Government which claims the applicability of the mixed-materials clause. In United States v. Draeger Shipping Co., Inc., 6 Cust. Ct. 783, Reap. Dec. 5118, affirmed in 29 C. C. P. A. 258, C. A. D. 199, the court said (p. 785):
It is well settled that when the Government, as a litigant before the court, contends for a principle different from that adopted by the customs officers who are duly authorized to make the original decision from which the importer appealed, the Government has the burden of establishing its claim. United States v. Freedman & Slater, Inc., 25 C. C. P. A. 112, T. D. 49241; United States v. White Sulphur Springs Co., 21 C. C. P. A. 203, T. D. 46728; United States v. Ohuda & Co., 23 C. C. P. A. 46, T. D. 47713.
It is also a general rule that where it is claimed that a commercial meaning different from the common meaning of a term exists, the burden of proving it devolves upon him who makes the claim. United States v. Briggs Manufacturing Co., 14 Ct. Cust. Appls. 1, T. D. 41526; United States v. Wilfred Schade & Co., 16 Ct. Cust. Appls. 366, T. D. 43092; Sunde & D’Evers Co. v. United States, 17 C. C. P. A. 24, T. D. 43321.
In Julius Wile Sons & Co. v. United States, 73 Treas. Dec. 661, T. D. 49514, the collector classified the merchandise as baked articles and plaintiff claimed that* they were properly dutiable as nonenu-merated manufactured articles. In its brief the Government claimed that the mixed-materials clause was applicable. No proof was offered *164as to the component material of chief value. The court found for the plaintiffs, stating (p. 662):
The Government contends that the provisions of the mixed materials clause in paragraph 1559, supra, are applicable to these cheese balls in suit. It is argued that the cheese balls are manufactured from baked articles and cheese and since the importer has failed to offer proof as to the component material of chief value in the commodity he has not made a prima facie case.
It is true that in the Renken & Yates Smith case, supra, the Court of Customs and Patent Appeals requested at the oral argument that supplemental briefs be filed on the applicability of the mixed materials clause. However, it decided that the record was inadequate for a proper determination of that question. The record before us is in the same condition, that is, it is lacking in proof as to the component material of chief value in the commodity.
In Renken & Yates Smith Corp. v. United States, 22 C. C. P. A. 225, T. D. 47143, cited by tbe court in the Julius Wile case, supra, the court said (p. 229):
At the time of the- oral arguments in this court, it was requested that counsel furnish the court with supplemental briefs on the question of whether the mixed-materials clause, ' contained in paragraph 1559, supra, was applicable to the involved merchandise. Due no doubt to the fact that the question of the-applicability of the mixed-materials clause was not raised in the court below, the record is inadequate for a proper determination of that question by this court. Accordingly, we deem it unnecessary and inadvisable to discuss it.
The circumstances in the present case are similar except for the fact that instead of additional briefs being requested the court restored the case to the calendar for further proof.
In United States v. Vandiver, 6 Ct. Cust. Appls. 149, T. D. 35395, the merchandise was classified as wearing apparel in part of lace. The importer claimed that the merchandise was composed in part of lace but was in chief value of cotton. After a trial, the court below found that the merchandise consisted of cotton wearing apparel made in part, but not in chief value, of lace. The Government applied for a rehearing upon the ground that the entry showed the goods were embroidered but when the case came on to be reheard the Government offered no further evidence. The protest was again sustained and an appeal taken. It was held that the description in the entry was not sufficient evidence to overcome the classification made by the collector. Although there is no statement in the case in regard to burden of proof, the holding indicates that, as the Government injected the claim that the goods were embroidered, the burden was upon it to prove it.
The dissenting opinion of Judge Cole refers to Oviatt Importing Co. v. United States, 8 Cust. Ct. 276, C. D. 620, and Celias (Inc.) v. United States, 18 C. C. P. A. 237, T. D. 44405. It is to be noted that in those cases the component material of chief value was clearly established. In the instant case there is no evidence whatever as to the component material of chief value. Although there is an analysis showing the *165percentage of each, component material in the produqt, there is nothing to show the value of those materials. The absence of such proof is a bar to invoking the statutory construction applied in those cases. Paragraph 1559 is not applicable until it is determined what is the component material of chief value. That leads directly to the issue in the instant case, that is, on whom is the burden cast of proving which is the component material of chief value. As I have already indicated, that burden is upon the Government in the instant case, since it is the Government which is making the contention that the mixed-materials clause is applicable.
To hold for the defendant in the instant case would result in a requirement that in all cases where merchandise composed of more than one material is claimed to be dutiable under paragraph 1558, the importer must prove what is the component material of chief value and that such material is not dutiable by virtue of paragraph 1559, regardless of whether the importer is making any claim under-paragraph 1559 or not. On the other hand, it works no hardship on either party to require that the one claiming the applicability of paragraph 1559 put in proof in support of such contention.
The authorities are in agreement that where the Government sets up a new claim, the burden is upon it to prove it. Here the Government claims that the mixed-materials clause is applicable, but it has not proved the necessary facts, that is, that one or more of the component materials of the merchandise is provided for specifically in the tariff act, nor which of such materials is the component of chief value and the particular paragraph and rate of duty to which the article is subject. Therefore, the protest must be sustained and judgment rendered for the plaintiff.