DISSENTING OPINION
Oliver, Judge:I respectfully dissent from the view of my colleagues in this case because I feel that the record fails to support either claim advanced by the plaintiff herein.
Accepting as inappropriate the official classification, it of course remained plaintiff’s burden to establish by competent and sufficient evidence the propriety of its own claims.
The testimony of plaintiff’s witness Mann, president of the importer, indicates that he was in the chemical business, manufacturing and importing, and that he imported this merchandise and sold it to a *29shampoo company. He was totally unfamiliar with what they did to it or how, eventually, they sold it. Therefore, the remaining testimony of the witnesses Kalish and Lada, men of high qualification in the cosmetic field, is vitally important on the issue of identification and use. The record on this point is quite in conflict. Kalish, testifying for the plaintiff, said it is a shampoo and that he has made like formulae “which have been given to my clients by me for use as a shampoo” (K. 37). Since Kalish is and has been in the publishing and editing business for some time, it is not at all clear what clients or what similar shampoos he is referring to. He did admit he had never dealt in or even seen Empicol TSL as such. On the other hand, Lada, an active expert in the production of shampoos for the market, unequivocally stated that this formula, which he had seen before, is simply a raw material for shampoo and by no means a commercial product for application to the hair. It requires not only the additives of color and perfume, but the presence of 36 percent triethanolamine lauryl sulfate is too strong to be used and requires significant modification.
However,- it seems to me that whether this product is a shampoo or an unfinished shampoo is not in issue here. The statute, paragraph 61, contains no eo nomine provision for shampoo and the only requirement made necessary is use as a hair applicant. Use implies “chief use.” Bob Stone Cordage Co. et al. v. United States, 51 CCPA 60, 67, C.A.D. 838. It is the use, not of the particular shipment but of the class or type of goods involved. Thus, plaintiff must show that Empicol TSL is itself a product chiefly used as a hair applicant or belongs to a class so used. The evidence is completely silent on how this product is actually chiefly used or whether it is ever used, as is, on the hair. There is some evidence that there are some products used which may be colorless or odorless, and Kalish said he made some shampoos with substantially the same formula as Empicol TSL. However, it is the chief use of a formula such as Empicol TSL which must be shown and not mere capability or susceptibility of use. On this record, I cannot see that that burden has been met.
On the other hand, with respect to plaintiff’s claim under paragraph 13 of the tariff act as a liquid for cleaning, both Lada and Kalish agreed that any cleaning use outside of the hair would be economically unsound for this formula in its present state. The cleaning uses to which these witnesses testified were in the realm of possible, not actual or substantial. The witness Lada further stated, as he had with the shampoo question, that the product required further modification even for such possible uses.
In C. J. Tower & Sons of Buffalo, Inc. v. United States, 46 Cust. Ct. 422, Abstract 65455, relied upon by the majority, the merchandise there in issue had been produced and marketed as a cleaning powder, and had received substantial use as a cleaning agent in industry. I do *30not think the record in the present case supports any similar findings on the questions of marketability or use.
Classification of merchandise as imported is a well settled doctrine. It has particular pertinence here where we are dealing with provisions governed by use, use being the only significant requirement of the statute. The Border Brokerage Company v. United States, 56 Cust. Ct. 16, C.D. 2606, case, also referred to in the majority opinion, dealt with a provision naming paints specifically and we found there .that the product was a paint by all the evidence presented. It was bought and sold as a paint on the market, it fit the definition of an emulsion paint appearing in the Encyclopedia of Chemical Technology, and it was normal for the user to add solvents or thinners in applying it.
However, there is no evidence in this case that Empicol TSL is ever sold on the market (except to a shampoo company which may purchase it as a raw material for its own marketed product) or that the various alterations required as stated by the witness Lada, and to a lesser extent by Kalish, are normally accomplished by users.
On the basis of the record before us here, I am of the opinion that there has been an insufficient showing that the imported merchandise is either chiefly used as an application to the hair as provided for under paragraph 61 or substantially used as a liquid cleaner as provided for under paragraph 13.1 find it unnecessary, therefore, to reach the question of relative specificity and I would overrule the protest.