DISSENTING OPINION
Nichols, Judge:I agree with the court, that dehors section 508, Tariff Act of 1930, the merchandise is not wool rags and the Government has not sustained the burden the court says it assumed. But because of section 508, I would overrule the protest. This would appear to be a classic case of commingled merchandise under section 508, and the result reached, if it stands, effectively frustrates the intent of the Congress in enacting that provision.
Plaintiff entered the merchandise as “61 bales cotton cutting. For paper making.” Only the number of bales was accurate. Our knowledge of what the merchandise is derives just about wholly from the testimony of the Government chemist, Amelia Eaton, her reports exhibits A-l through G-l, and exhibit H-l. The samples she analyzed *233bad been duly identified as coming, one from eacb of seven of tbe bales in litigation, plus one “composite sample.” Plaintiff stipulated that tbe analysis was “accurate and correct, and done in a proper manner.” (E. 65.) Miss Eaton was properly qualified as an expert. (E. 63-65.) It follows that her testimony stands on its own foundation and in no way depends on her status as a Government official. It further follows that whatever damage was done to tbe presumption of correctness of tbe collector’s decisions by tbe Government’s shift of ground, in no way undermines her testimony and reports, which sustain tbe burden of proof, if the court rightly says the Government carries the burden.
She found that three of the samples contained wool cuttings wholly of wool. These and other samples contained cuttings of fabric made from wool mixed with cotton, viscose rayon, or nylon. Two samples contained no wool. Four out of the eight samples were 72 percent and up of wool, by weight, mixed and unmixed.
The merchandise consisted of cuttings left over from the manufacture of clothing. Such cuttings, if of wool, were wool rags in the tariff sense. J. Eisenberg, Inc. v. United States, 46 CCPA 11, C.A.D. 687; United States v. J. Eisenberg, Inc., 43 CCPA 105, C.A.D. 616. Three samples contained unmixed wool clippings, and these clippings were “wool rags” beyond peradventure. Several samples contained mixtures of wool and other fibers and it is probable, even if not completely established, that among many of these mixtures, wool was the component material of chief value, in view of the large amount of wool found in the samples, over all, and the admission of plaintiff’s president (E. 12) that wool had “a much higher value.” Thus they would be “wool rags,” too. Louisville Bedding Co. v. United States, 14 Ct. Cust. Appls. 328, T.D. 41958. However, the three samples containing unmixed wool clippings establish of themselves that section 508 applies, in light of plaintiff’s failure to segregate physically or show the proper segregation by documents.
Section 508 itself provides in case of commingling that if the higher duty part is commercially negligible and cannot be segregated without excessive cost, and certain other conditions are also met, the importer can apply to the Secretary to be relieved from performing segregation. Otherwise, he must either segregate or have duty assessed on the whole at the rate applicable to the portion dutiable at the highest rate. The importer here tried to show by testimony that the wool was “commercially negligible,” but he never invoked the statutory procedure. If the pure wool clippings were “commercially negligible,” plaintiff could have availed himself of the fact only by following the statutory procedure. But there is no reason to suppose they were. The reports *234do not say so and no such construction is fairly to be implied. Plaintiff had an opportunity to cross-examine Miss Eaton about this and did not do so. I do not think plaintiff’s claim that the wool is negligible is worthy of belief.
Therefore, the presence of the wool rags now is conclusive. It is irrelevant whether the merchandise as a whole is in chief value of wool or wool rags, or which bales are so; if section 508 were so limited there would have been no purpose in enacting it at all. Except in connection with the escape hatches plaintiff failed to employ, comparison of relative value is not needed. The court is not required to speculate and guess what the proportion of higher duty merchandise really was, nor are customs officers required to segregate if the importer fails to do so. United States v. E. E. Holler, 28 CCPA 124, C.A.D. 133. Whatever the proceedings of the collector, the court should sua sponte apply section 508 to the classification of the merchandise if the facts show commingling in the statutory sense; therefore, it is of no importance that the Government abandoned the collector’s classification. In Holler, supra, one side had contended the merchandise was wholly free, the other that it was wholly dutiable, so neither side invoked section 508, but our appellate court, having held it was partly free and partly dutiable, and commingled, applied section 508 nevertheless to determine that duty must be assessed on the whole. It may seem hard that section 508 should apply to things such as rags, of their nature, almost, commingled, but one of the classic oases, S. Schapiro & Sons v. United States, 29 CCPA 235, C.A.D. 196, involves commingled rags held dutiable at the highest rate applicable to any part, just as I hold should be done here. The Congress has enacted several different rates applicable to rags, and in cases of commingling, there can be no reasonable doubt it intends us to apply the highest rate applicable to any part, here the wool rags.
The variety of results from different samples establishes that customs officers could not have determined the relative proportion of wool rags without the 100 percent examination from which section 508(a) expressly excuses them. Plaintiff did nothing to help them. He entered the 61 bales under a false description as cotton, though he admitted he knew that 30 of them contained some wool. Even now there is nothing in the record from plaintiff to show which 30 these were. There is nothing in Miss Eaton’s reports to suggest that any system of sampling, short of 100 percent would establish with any certainty how many wool rags were in the 61 bales and what percentage they were of the whole.
The court’s decision leans heavily on the refusal of defendant’s witness Leibowitz to testify that the merchandise was wool rags. I do *235not, for these reasons, (a) his testimony as to this is purely advisory since common meaning is a question of law for the court, and (b) his testimony is fairly to be construed as that the samples as a whole were not wool rags. This may be fully credited, yet not be inconsistent with the fact that wool rags were commingled within the intent of the law. He was not asked whether any rags found that were 100 percent wool were wool rags. I would readily concede that no one of the 61 bales, taken as a whole bale, would be a good delivery on an order for wool rags, but that is not the test where section 508 is involved.