DISSENTING OPINION
Ford, Judge:This decision is one of the first promulgated by the court under the new Tariff Schedules of the United States and, consequently, there is no case law controlling the statutory language involved herein. I would, based upon the record, samples, and basic principles of law formulated over the years in the field of customs jurisprudence, sustain the protest.
The new language involved, as claimed by plaintiff, provides for “ornamented fabric.” A definition of the term “ornamented” is contained in the headnotes and provides as follows:
3. For the purposes of the tariff schedules—
(a) the term “ornamented,”, as used with reference to textile fabrics and other articles of textile materials, means fabrics and other articles of textile materials which are ornamented with—
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(iii) lace, netting, braid, fringe, edging, tucking, or trimming, or textile fabric;
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Based upon this provision, the definition, the testimony, and the information contained in the Seventh Supplemental Report, which is quoted in the majority opinion, my colleagues have concluded that the imported fabric is not within the purview of item 353.50 because it is not ornamented “in an acceptable trade sense.” This, in the view of the majority, is particularly so because the record establishes that the selvage is not considered part of the fabric. Hence, the majority concludes the application of braid only to the selvage does not ornament the fabric itself.
Braided articles under the provisions of the Tariff Act of 1930 fell within the purview of paragraph 1529 (a) of said act. A review of the language employed in item 353.50 clearly indicates a complete change from the language of paragraph 1529(a), supra, since all that was required, under said paragraph, was that said article be ornamental and be in part of any of the named articles. There does not appear to be any intent on the part of Congress in enacting the Tariff Schedules of the United States to require a commercial designation of the term “ornamented fabric.” Accordingly, under the basic principles of law *353in this field, the common meaning is controlling, unless a party attempts to prove a commercial designation. The record does not indicate an intent on the part of either party to establish a commercial designation.
We, therefore, have before us only the question of the common meaning of the term “ornamented fabric.” It is an elementary principle of law that this meaning is a question of law to be determined by the court, and testimony when offered is merely advisory. Marshall Field & Co. v. United States, 45 CCPA 72, C.A.D. 676. In order to ascertain the common meaning, the court may refer to dictionary definitions, not as evidence of the common meaning, but merely as an aid to the court in making its determination. On the other hand, commercial designation of a tariff term is a question of fact and is not subject to judicial notice.
The definition contained in the headnote and quoted, supra, is of little aid, at least to the writer of this opinion, since said definition utilizes the word to be defined. Some of the other definitions of the terms “ornament,” “ornamental,” and “ornamentation” contained in the majority opinion are more illuminating. Most of these definitions utilize the terms “adorn,” “deck,” “bedeck,” “embellish,” or “beautify.”
While this case is being brought under a new tariff law (TSUS), the basic principles of law have not been changed. A sample is still considered a potent witness. United States v. The Halle Bros. Co., 20 CCPA 219, T.D. 45995; United States v. Fred. Gretsch Mfg. Co., Inc., 28 CCPA 26, C.A.D. 120.
An examination of the cloth involved herein establishes that the braid has been affixed on both selvages. What embellishes, adorns, bedecks, or beautifies an article varies with each individual. Consequently, what is pleasing to the eye of one person may be garish to the eye of another. Bearing in mind that the cloth involved herein is inexpensive and made of reprocessed wool, the application of a cheap braid in and of itself does not take it out of the term “ornamented.” One would not ordinarily expect the same quality of braid to be utilized on expensive cloth as is used on inexpensive cloth. To me, based upon the record and the foregoing, plus the fact that a sample is a potent witness, the affixing of braid on the cloth, whether it is on the selvage or otherwise, is not for a utilitarian purpose. Therefore, it has been placed on the cloth for either the purpose of ornamentation or to obtain the lowest rate of duty. With respect to the latter purpose, an importer may fashion his merchandise in 'any manner which might subject the merchandise to the lowest rate of duty. The enactment of the Tariff Schedules of the United States does not in any way change this basic principle which has been approved by various courts over the years. Merritt v. Welsh, 104 U.S. 694; Seeberger v. Farwell, 139 U.S. *354608; Lang et al. v. United States, 10 Ct. Cust. Appls. 228, T.D. 88563; Michaelian & Kohlberg, Inc. v. United States, 22 CCPA 551, T.D. 47554.
Therefore, if the involved cloth is ornamented, even though the braid is affixed for obtaining the lower rate of duty, it is still within the provision of item 353.50. It is interesting to note that all of the witnesses, with the exception of Mr. Selden, called on behalf of defendant, considered one or both of the exhibits (4 and 5) ornamented by braid but steadfastly refused to state that the fabric from which they were made was ornamented by the braid. Mr. Selden had no opinion as to whether the exhibits were ornamented since he was not a dress manufacturer. These statements are to say the least paradoxical. How could cloth having braid affixed to its selvages not be ornamented, while a garment made from this cloth and utilizing the braid from these selvages be ornamented with braid?
If the court is bound by the theory of trade acceptance set forth in the Seventh Supplemental Report, supra, what function does the court have? Common meaning is a question of law and not fact, and, under this theory, the testimony or fact would be controlling in a question of common meaning. This is contrary to the principles of law controlling common meaning. If Congress intended to make commercial designation controlling with respect to item 353.50, it could have easily done so by using the proper phraseology, such as “commercially known as ornamented fabric,” or some other similar language. Since the Congress did not so provide such language, this court may only interpret the language enacted.
Based upon the foregoing, I am of the opinion that the imported fabric is ornamented within the purview of item 353.50 of the Tariff Schedules of the United States, and I would sustain the protest.