*218CONCURRING OPINION
Tilson, Judge,specially concurring: In holding in our original decision that the plaintiff had failed to establish a prima facie case, we were carefully following the formula or rule laid down by our appellate court for proving commercial designation. One of the leading cases on this subject by our appellate court is Passaic Worsted Co. v. United States, 17 C. C. P. A. 459, from which we quoted in our original opinion, as follows:
At the risk of unnecessary reiteration, we repeat a suggestion as to this kind of evidence frequently heretofore made by us. If, in the case at bar, it was sought to establish commercial designation of the imported machines as textile machinery, before attempting to do so it must be legally admitted that they have a commercial designation which differs from their common designation and that, under the common designation, they are not textile machinery. Otherwise, and if they are commonly known as textile machinery, no occasion for proof of commercial designation exists. Then, having admitted this necessary legal premise, the next inquiry must be: “By what name are these articles designated uniformly, generally, and definitely in the trade wherever they are bought and sold?” If, to such an inquiry, the witness can respond that they are so designated as textile machinery, the evidence is competent and tends to prove commercial designation. A very good and substantial reason exists for so directing the inquiry. If the witness is uncertain in his statement, such uncertainty will readily appear on cross-examination. If, on the other hand, the witness is asked whether a certain article belongs within a certain class, the answer he gives will simply be his opinion, and the true facts may not be readily available on cross-examination. The rule of commercial designation is a wise one, but the rule is narrow and must be closely adhered to. [Italics ours.] • •
Although our appellate court has for a number of years held, in effect, that before attempting to establish commercial designation it must be “legally admitted” that the commercial designation of the article differs from the common meaning, we have not found ourselves in accord with such a holding. In fact, it has never been entirely clear exactly what was intended to be comprehended by the term “legally admitted.”
While it is true that the witnesses in this case testified, in effect, that there was no difference between the common meaning and commercial designation of the rugs, it is well settled that the common meaning of a descriptive term used in a tariff act is a matter of law to be decided by the court, and that while the testimony of witnesses as to common meaning may be received, it is advisory only and the court is not bound by such testimony. United States v. Florea, 25 C. C. P. A. 292; United States v. North American Mercantile Co., 17 C. C. P. A. 378; Absorbo Beer Pad Co. v. United States, 30 C. C. P. A. 24, and United States v. Macksoud, 27 C. C. P. A. 218.
Following the rule as to proof of commercial designation, laid down by our appellate court, we did not weigh the evidence offered by the Government in our original decision of this case, because under that rule it was unnecessary to do so, but since our appellate court found that “In our opinion appellant established a prima facie case at the trial,” we have now considered and weighed all the evidence offered by the Government and find therefrom that such testimony does not overcome the prima facie case established by the plaintiff at the trial.
Therefore, following the decision of our appellate court, all the merchandise on the invoices covered by these suits which was assessed with duty at 35 percent ad valorem under paragraph 921, Tariff Act of 1930, is properly dutiable at only 20 percent ad valorem under said paragraph 921, as modified by the Belgium-Luxemburg Trade Agreement, T. D. 47600, as alleged by the plaintiff.
For the reasons stated I concur in the conclusion and judgment of my associate.