CONCURRING IN PART AND DISSENTING IN PART
Donlon, Judge:I concur with my colleagues that the evidence of record shows that the articles of this litigation are not articles of utility or for industrial use, and I concur also that there is no evidence that the paintings on glass are works of art. I am of opinion, however, that there is a prima facie case, established to be sure by testimony defendant elicited on cross-examination, that the bowl here in question is a work of art within the scope of the dutiable provision of paragraph 1547. The witness Kissman so testified.
That defendant is bound by the adverse testimony it elicits, is well established. It is evidence to be weighed with other evidence.
As Judge Eichardson pointed out in United States v. Baar & Beards, Inc., 40 Cust. Ct. 874, 881, A.R.D. 85, citing authorities:
Ii there be contained therein [the Government’s evidence] competent evidence beneficial to the importer, we think [the] importer is entitled to have the same considered and weighed along with all the evidence in the case. [Golding Bros. Co., Inc. v. United States, 21 C.C.P.A. (Customs) 395, 400, T.D. 46926. See also Florea & Co., Inc. v. United States, 7 Cust. Ct. 581, Reap. Dec. 5489.]
The court of appeals reversed the decision on the ground, inter alia, that what had been held below to be competent evidence was, in fact, merely a conclusory statement and, therefore, not evidence at all. The established ruling, cited above, was not reversed, namely, that evidence elicited by defendant is entitled to weight.
Here, the evidence identifying the article as a work of art is the only evidence on that subject, and it is not overcome by any other testimony. There is nothing else against which to weigh it. That, in my view, makes a prima facie case.
While certainly it is true that not all decorative articles are included as works of art within the provision of paragraph 1547, as my colleagues correctly state, there are included in paragraph 1547 those inexpensive articles which are shown by the evidence of record to be works of art. We are not here concerned, as was the court in Wm. S. Pitcairn Corp. v. United States, 39 C.C.P.A. (Customs) 15, C.A.D. *84458, with copies, replicas, or reproductions of figurines from molds. This bowl is an original. That original works of art, relatively inexpensive, are subject to the paragraph 1547 duty was stated by our court of appeals in the Pitcairn, case, supra: “It seems not inappropriate to suggest at this point that the Congress which passed the .1930 Act evidently felt that there are, at least for tariff purposes, works of art, including statuary and sculptures, which are of low value so far as dollars and cents are concerned.” (P. 26.)
As to the qualifications of Mr. Eissman, the witness who testified, I find his qualifications, as a student and day-by-day practitioner of the decorative arts, sufficient to give evidentiary value to his testimony as to articles dutiable under paragraph 1547.