DISSENTING OPINION
Richardson, Judge:Most of the cases in which the third division of the Customs Court has been called upon to decide whether or not a container is a cup have not involved perfect specimens of after-dinner tea or coffee cups, and the division has made its determination according to whether the characteristics of the container in issue predominate in favor of or against classifying it as a cup. When the characteristics of the container have more resembled in physical appearance and use a cup than another article, like for example a mug, the division has classified the container as a cup. Using this same method of comparison in considering the evidence adduced in this case, I reach the conclusion that the container in issue should be classified as a cup.
The only witness called to testify was Herman Gartzman, president of Imports, Inc., the plaintiff in this ease. His testimony may be summarized as follows: His firm brings in ceramic items and miscellaneous sundry merchandise, mostly from the Orient, to sell in this country. He is familiar with the items referred to as Yum-ee cups and saucers, which items are listed separately on the invoice; item 800 is listed as a mug and items 802 and 803 are listed as saucers. Counsel for the plaintiff stated that the classification of the saucer was not in issue but that the two items were a unit; therefore, samples of both were offered in evidence. The cup or mug (which for the time being will be referred to as a container) was received in evidence as plaintiff’s exhibit 1 and the saucer as plaintiff’s exhibit 2. The container is a decorated earthenware article more or less in the shape of a child’s head with a footed part representing the neck. It has a handle on one side. The child’s face is depicted on the front portion and, on the back, are the words “For my milk break.” The overall height of the article is 4% inches. The portion representing the head, which is used to contain liquid, is a little over 3 inches high, is wider at the top (2% inches), and tapers to about 2% inches, where it joins the foot, which flares out to a diameter of 2% inches at the bottom. The saucer has a diameter of 6 inches and a well measuring 3% inches. The container, therefore, does not fit snugly into the well. The saucer is decorated on both sides. The side with the well has a pink stripe around the rim, and the other side is decorated to represent the hair of the child. It may be placed on top of the container to simulate a hat or the top of the head of the child. It fits more snugly that way than as a base for the container. The container is light and the saucer is noticeably heavier.
Mr. Gartzman has been in an occupation that dealt with ceramic ware since 1929 and has dealt in such ware, cups and saucers, tableware, mugs, and dinnerware sets all over the United States. He imports other tableware items matching the container and saucer in this importation. After importation, such items are assembled in the United States for sale as open stock dinnerware. Illustrations of some of the articles were received in evidence as plaintiff’s exhibits 3 through 6. They show plates or dishes of different sizes, each depicting a boy and girl thereon.
*511Mr. Gartzman was familiar with items which are cups and items which are mugs and described a mug as an object that is basically cylindrical, is normally very heavy, and is generally of a square type shape. He agreed with the following definitions from Webster’s New International Dictionary, second edition, unabridged:
cup. A small open bowl-shaped vessel used chiefly to drink from, with or without a handle or handles, ... a handled vessel of china, earthenware, or the like, commonly set on a saucer and used for hot liquid food such as tea, coffee, or soup.
mug. A kind of earthen or metal drinking cup, with a handle, — usually cylindrical, with no lip.
The witness testified that there had been a mug in the Tum-ee line and produced an illustration thereof, which was received in evidence as plaintiff’s exhibit 7. The exhibit depicts a cylindrical article, narrowed at the center and wider at the top and bottom, with a flat bottom. A child is portrayed thereon. The witness said it was taller than the container involved herein and was not used with a saucer.
Mr. Gartzman stated further:
No, that is the main point. A mug is not used with a saucer. A cup is used with a saucer. We made a cup and saucer combination. There it is standing that way, and we also made it as a little novelty type, to put a hairline on the top; in other words, when not in use for a child, it is a novelty thing, and looks cute, but it is used as a cup and saucer, and we did make the other dinnerware together along with it as a unit of sale. It could be sold individually, because cups break more often than saucers. We brought them in as open stock. Mugs do not come in as any classification of open stock mugs. . . .
The witness said he had designed a mug, but then decided it would not sell in volume, so the cup was created. The depth was cut down so that children could handle it easily, and a footed base was added with novelty decorations, such as lacework or a bow tie.
There were then produced and received into evidence articles which the witness stated were mugs. Plaintiff’s exhibit 8 is a slightly barrel-shaped container, 3% inches high, with a top diameter of 3 inches, and a bottom one of 2% inches. The bottom is flat and the article is not footed. It has a handle. The witness called this a standard mug.
Plaintiff’s exhibit 9 is a taller article with concave sides, narrowed at the center and wider at the top and bottom. It is 414 inches high, with a top diameter of SVs inches and a bottom diameter of 2% inches. The bottom is flat and the article is not footed. It has a handle. The witness said that this shaped mug was made in the Yum-ee line.
Plaintiff’s exhibit 10 is a cylindrical straight-sided article, 3% inches high, with a top diameter of 3 inches and a bottom one of 2% inches. It is flat bottomed and has a handle. It is not footed.
The witness stated that none of these mugs was ever used with a saucer and was not part of a set.
According to Mr. Gartzman, cups and saucers are not normally imported or purchased by dealers in the same quantity because cups break faster. As a general rule, three or four cups are imported .for one saucer. While dinnerware is generally brought in in sets with an equal number of cups and saucers, open stock items are sold separately and are invoiced by the individual item. Based upon his experience in dealing with this type of merchandise and selling it at retail and at wholesale, the witness testified that articles, such as plaintiff’s exhibits 1 and 2, are sold in the trade as cups and saucers. Plaintiff’s exhibit 1 is also sold separately, as an open stock item.
*512Mr. Gartzman was shown the invoices covered by protest No. 62/1235, and stated that they listed mugs but no saucers. He explained that the imported merchandise was a novelty item that could be made only in one place in Japan and they could not make more than one item at a time.
The witness was then shdjyn two sheets which he said were part of a catalog which was issued when the line was originally made up. He stated that most of the copies were not used because they were wrong, although a few got out of his hands. These sheets were received in evidence as defendant’s collective exhibit A. They depict the articles involved herein. One is described:
Boy Mug High-Gloss Underglazed Ceramic 4%" High
# 800 6 dz carton 42 lbs Retail .59 ea
The “Girl Mug” is similarly described. The witness was asked whether the sheets showed how he sold the item, to which he replied:
I would say, yes, not fully.
The witness stated that plaintiff’s exhibit 1 is not advertised as a mug; it is a cup. He was then shown another sheet which he said was part of the same catalog and illustrated plaintiff’s exhibits 1 and 2. This was received in evidence as defendant’s exhibit B. It depicts the boy and girl containers, each with a saucer placed over it. It states:
Boy Saucer 6” With Blue Stripe Underglazed Ceramic
#802 12 dz ctn Retail .25 ea
Boy Mug Full Color 4 %" High
#800 6 dz ctn Retail .59 ea
The description as to the girl saucer and mug is the same except that the girl saucer has a pink stripe.
According to the witness, in earthenware, the cup does not always fit the well of the saucer because earthenware has a tendency to shrink more than porcelain-ware, making it impossible to have a perfect fit. However, in better quality ware, there is a lesser amount of shrinkage, and the fit is almost perfect. An American-made earthenware cup and saucer were received in evidence as plaintiff’s collective exhibit 11. It consists of an ordinary shaped teacup and saucer and the cup fits into the well fairly well. The witness said it was not typical of the variance in the fit of an imported earthenware type cup and saucer, since it is a heavier piece of material and there is greater variance in the light piece.
The issue in this case is whether the imported container is a cup or an article of tableware other than a plate, cup, or saucer, to wit, a mug, as classified by the collector.
The question of what was meant by the term “cups” in the trade agreement with the United Kingdom, T.D. 49753, was before the court in Johnson Bros. v. United States, 15 Cust. Ct. 113, C.D. 955. Exhibits illustrative of well-known cups were received in evidence, such as teacups, coffee cups, after-dinner coffee cups, jumbo coffee cups, bouillon cups, cream soup cups, handled custard cups, custard cups without handles, and eggeups. The court quoted the following from *513the “Digests of Trade Data with Respect to Products On Which Concessions Were Granted by the United States” :
Except for the value bracket limitations, no restrictions on the types of decorated and colored earthenware plates, cups, and saucers entitled to the reduction in duty was written into the agreement, since it was intended to cover all types of plates, cups, and saucers coming within the descriptive language. A complete list of the different articles would not be practicable, but the more important articles include flat plates, coupe and deep soup plates, cake and compartment plates, tea, coffee, cream soup, bouillon and other cups and saucers, as well as saucers not used in conjunction with cups, such as fruit and oatmeal saucers.
It was held that, in view of the samples and in the light of the common meaning of the terms, puree cups and chowder cups were properly dutiable under the trade agreement provision for cups.
On the other hand, in Ross Products, Inc. v. United States, 46 Cust. Ct. 8, C.D. 2226, it was held that an eggcup was not classifiable as a cup. The court quoted several definitions of the term “cup” and then stated:
It follows from these definitions and from common knowledge that, when used in connection with china and earthenware, the term “cup” standing alone designates a bowl-shaped drinking vessel commonly set on a saucer and used for the service of hot liquids, such as tea, coffee, or soup. In combination with other words, it describes articles, more or less cup-shaped, used for other purposes, such as eggcups, custard cups, measuring cups, sherbet cups, and fruit cups.
The court, after referring to the Jolmson case, supra, and the excerpt from the Digest of Trade Data quoted above, stated:
In the instant case, the only witness testified that an eggcup is not a cup and is not bought and sold as such. In fact, an eggcup is not one of the articles which come to mind when the word “cup” is used in connection with ceramic tableware or kitchenware. It is not used to drink from nor is it bowl-shaped nor does it have a saucer as a companion piece, but is ordinarily set upon a plate. It is designed to hold an egg which is generally eaten from the shell. The containing portion is in an elliptical shape to fit the egg rather than in a bowl shape convenient for drinking. It can be identified only by the use of the word or prefix “egg” preceding “cup.” It is not known, bought, or sold under any designation other than as an eggcup.
Ross Products, Inc. v. United States, 40 Cust. Ct. 158, C.D. 1976, involved the question of whether the imported article was a cup or a mug. It consisted of a decorated earthenware, barrel-shaped drinking vessel, about 3% inches high and 2% inches in diameter, with a curved handle, on top of which was a figure of a bird through which one could blow to make a whistle sound. According to the record, it was used by children for the purpose of drinking milk and was used without a saucer. The diameter of the top was only slightly larger than that of the bottom. It had no foot. It was sold as a milk cup and as a milk mug. The court held the article to be a mug, stating:
Paragraph 211, as originally enacted by Congress, enumerates, among other articles, both mugs and cups, indicating that Congress considered a mug to be different from a cup for tariff purposes, even though a mug has been defined by lexicographers as a kind of cup. The General Agreement on Tariffs and Trade, T.D. 51802, provides reduced rates of duty for certain articles covered by paragraph 211, including cups, valued at $1 or more per dozen, but mugs are not mentioned. The Torquay protocol, on the other hand, enumerates both mugs and cups, provides specially for some cups, and also covers other tableware in general. It is clear, therefore, that both Congress and the negotiators of the trade agreements classified cups and mugs separately. Consequently, if the imported merchandise is a mug, it cannot be classified as a cup, as the former is a more specific designation.
*514Plaintiff claims that the instant merchandise is not a mng, principally because it is not cylindrical (straight-sided) in shape. Reliance is placed upon definitions describing a mug as a kind of earthen or metal drinking cup, with a handle, usually cylindrical in form. Webster’s New International Dictionary, 1952 edition; Punk & Wagnalls New Standard Dictionary, 1949 edition; The New Century Dictionary, 1927 edition. Plaintiff’s witnesses also testified that a mug is more or less straight-sided in shape.
Both of the defendant’s witnesses, who had had many years’ experience in the earthenware industry, gave a more detailed definition of a mug, to the effect that it is either straight-sided or barrel-shaped, measuring about the same across the top as across the bottom, having a flat bottom, heavier than a cup, and not used with a saucer. Following this definition, they stated that the instant merchandise is a mug. Furthermore, plaintiff’s witness Mintz testified that while his firm calls the article a milk cup, it is also sometimes featured as a milk mug.
The sample itself is a potent witness. While it is barrel-shaped, rather than strictly cylindrical, its height exceeds its diameter, and it measures about the same across the top as across the bottom. It is thus more or less cylindrical in form, as are the mugs introduced into evidence as collective illustrative exhibits A-l, A-2, A-3, and A-4. It is heavier than a cup, is shaped differently, and is not used with a saucer, as cups ordinarily are. In our view, it is a mug within the common understanding of that term.
In the instant case, plaintiff claims that the article is a cup on the ground that it is howl-shaped or vessel-shaped; that it is footed; and that it is designed to be used with a saucer. ¿Defendant contends that the article is unlike the cup in plaintiff’s collective exhibit 11 and does not resemble a puree, chowder, or any other kind of cup referred to in the decisions, supra,; that it is used for the service of milk and not hot liquids; that it does not fit snugly into the well of the saucer; that the saucer is used as a hat or lid; that more containers than saucers were imported; that the witness’ statements that the merchandise was designed and sold as a cup were controverted by the descriptions in defendant’s exhibits A and B.
It is evident from an examination of the sample that this merchandise is a novelty item, designed for children, and that it does not conform to the ordinary concept of a teacup, such as plaintiff’s collective exhibit 11, nor to that of mug, such as plaintiff’s exhibits 8, 9, and 10. The evidence is contradictory as to how 'this article is sold in the trade. Mr. Gartzman testified that it was designed as a cup and was created with the saucer as a two-piece unit, and that the two were sold in the trade as cups and saucers. On the other hand, the merchandise involved as “mugs” and the pages from the plaintiff’s catalog (defendant’s, exhibits A and B) described 'the articles as “mugs.” According to the witness, the catalog was not generally distributed to the trade because of some error therein, which was not specified. Whether or not the containers were always or even usually sold with saucers is not clear, nor is there any evidence as to how the article was purchased or used by the consumer.
Even though there is conflicting evidence as to whether the container is advertised, described, and sold as a cup or a mug, the sample of the merchandise much more resembles a cup than a mug. It clearly does not conform to the definition of a mug. It is neither cylindrical nor barrel-shaped, nor does it measure the same across the top as across the bottom. Rather than being heavier than a cup, it is very light. It has a bowl-shaped container portion which tapers at the base and it is footed. Whether or not it is always bought, sold, or used with a saucer, a saucer was designed to go with it, and, according to the witness, the two were sold as a cup and saucer. That the container does not fit into the well of the saucer very snugly is accounted for by the fact that this is a novelty item, and the saucer is designed also to rest over" the top to *515resemble tbe top of tbe child’s bead or a bat. While tbe article is apparently designed for tbe service of milk, which is usually cold, milk is sometimes served hot. Tbe article could also be used for cocoa or any other warm drink given to children. Tbe fact that it may ordinarily be used to contain cold milk does not establish that it is not a cup. For instance, some soups are served cold, but soup and bouillon cups are specifically mentioned in tbe Digest of Trade Data, supra.
I would hold, therefore, that the article involved herein is a cup and is properly subject to duty under paragraph 211 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, at 10 cents per dozen pieces and 20 per centum ad valorem, as cups valued at $1 or more per dozen. I would sustain the protests.