Maktin, Judge,
delivered the opinion of the court:
This appeal is from the judgment of the United States Customs Court, First Division, C.D. 2128, one judge dissenting, which sustained the importer’s protest and held certain merchandise consisting of footwear to be “huaraches” within the meaning of the Trade Agreement with Mexico, T.D. 50797,78 Treas. Dec. 190, which provides, eo nomine, for a 10 percent ad valorem duty on huaraches under paragraph 1530 (e) of the Tariff Act of 1930, and reads:
Boots, shoes, or other footwear (including athletic or sporting boots and shoes), made wholly or in chief value of leather, not specially provided for:
Huaraches_10% ad valorem
The meaning of the word “huarache” has been previously considered by this court in United States v. Weigert-Dagen, Weigert-Dagen Shoe Co., J. F. Goldkamp & Co., 39 CCPA 58, C.A.D. 464, and United States v. Fuchs Shoe Corporation, 41 CCPA 179, C.A.D. 547. The records in those cases have been incorporated herein together with additional evidence.
In Weigert-D agen, this court on that record found that the word “huarache” was ambiguous and of doubtful meaning, and adopted the definition provided the negotiators of the Mexican Trade Agreement by the Tariff Commission. That definition reads:
[98]*98Huaraches are leather-soled sandals having woven-leather uppers laced to the insole. The insole is machine-stitched to the outsole, and the heel is nailed on. They are used principally by women and girls for beach and casual summer wear.
It then, decided that none of the merchandise involved in Weigert-Dagen satisfied the quoted definition.
The Fuchs case involved merchandise stipulated to be “the same in all material respects” as that in Weigert-D agen, and the evidence in the latter case was incorporated in the Fuchs record. After reviewing the new evidence the court interpreted “woven-leather” to mean “wholly woven,” adhered to the definition in W eigert-D agen, and held that the merchandise in Fuchs did not satisfy that definition.
Here the Customs Court correctly found that the merchandise does not differ in any material respect from one type involved in the Fuchs case, which was there held on that record not to be huaraches. That holding is not disputed here.
We agree with the following excerpt from the majority opinion below:
In view of the fact that tbe exhibits in the case at bar are basically the same in construction as exhibit 3 in the Fuchs case, and that the record in that ease (which included the record in the Weigert-D agen case) was incorporated as part of the record herein, it will be seen that the outcome of this ease depends upon whether anything contained in the additional evidence offered in the case at bar does effect, or could effect, a conclusion as to the meaning of the term “huarache” different from that adopted in the Weigert-D agen and Fuchs cases in the sense of including footwear such as that at bar.
Exhibits 1 and 2 are representative of the imported merchandise. They are identical in construction but differ in size and color combinations. They are both without heels. The toe portion or vamp consists of a piece of slitted leather interwoven with fourteen flat leather thongs which are laced to the insole. The back quarter or counter consists of a slitted piece of leather machine stitched to the insole. Four flat thongs are interlaced into and extend completely around the counter, are interwoven on each' side of the shoe with some of the thongs of the vamp, and are laced to the insole. The insole is machine stitched to the outsole. Each exhibit has an instep leather strap and buckle.
It is incumbent upon us to evaluate the testimony in this case to endeavor to determine whether the imported footwear are “huaraches” within the meaning of the Trade Agreement irrespective of the conclusions reached in the two previous cases on their records.
The only witnesses called to testify were not contradicted in their statements that the merchandise at bar constituted huaraches. Of the three witnesses, one was an interested party, the plaintiff. The other two were not. All were well qualified to give expert testimony on the subject matter. For example, David L. Neumann, an importer of Mexican goods including huaraches, who qualified as an expert [99]*99on this subject, having written several articles about Mexican arts and crafts including one referring to the manufacture and importation of huaraches, unequivocally testified that the merchandise at bar constituted huaraches. He testified as follows:
X Q. Now, have you bought and sold huaraches in the United States?
A. Yes.
X Q. What type of merchandise have you bought and sold as huaraches in the United States?
A. In 1934 I made my first purchases of huaraches for importation to the United States, and sold them here in a retail store in Miami Beach, in Florida.
X Q. All right. Now describe the type, the appearance of that one.
A. We were at that time dealing primarily in two kinds of huaraches; one was the huarache which was made in Oaxaca and the other was purchased in Mazatlan and was identical with this little one on the table.
XQ. Identical with Exhibits land 2?
A. That is right.
Most persuasive also is tbe testimony given by Joseph L. Kleinman, appraiser of merchandise, who has been in the Customs Service since 1923 as an inspector, entry clerk, liquidator and deputy collector. During this period he was located in the area of the southern border of the United States. Part of this testimony reads as follows:
Q. And, during all that period of time, have you become familiar with the merchandise that is imported at this area or through this area; through the port of El Paso or Nogales from Mexico?
A. I think so.
Q. Have you had occasion to pass upon, examine and appraise articles like Exhibits 1 and 2 in this case?
A. Yes.
Q. And, also like illustrative Exhibit D?3
A. Yes, sir.
Q. And, are you familiar with the area from which they come in Mexico?
A. To some extent, yes.
Q. How did you become familiar with that knowledge?
A. Handling the importations as examiner and appraiser, seeing the invoices, knowing where the shipments originated.
Q. Have you talked to importers and shippers as well?
A. Yes.
Q. Or just importers?
A. Importers and shippers.
Q. Now, looking at Illustrative Exhibit D, you are familiar with that item?
A. Yes, sir.
Q.
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Maktin, Judge,
delivered the opinion of the court:
This appeal is from the judgment of the United States Customs Court, First Division, C.D. 2128, one judge dissenting, which sustained the importer’s protest and held certain merchandise consisting of footwear to be “huaraches” within the meaning of the Trade Agreement with Mexico, T.D. 50797,78 Treas. Dec. 190, which provides, eo nomine, for a 10 percent ad valorem duty on huaraches under paragraph 1530 (e) of the Tariff Act of 1930, and reads:
Boots, shoes, or other footwear (including athletic or sporting boots and shoes), made wholly or in chief value of leather, not specially provided for:
Huaraches_10% ad valorem
The meaning of the word “huarache” has been previously considered by this court in United States v. Weigert-Dagen, Weigert-Dagen Shoe Co., J. F. Goldkamp & Co., 39 CCPA 58, C.A.D. 464, and United States v. Fuchs Shoe Corporation, 41 CCPA 179, C.A.D. 547. The records in those cases have been incorporated herein together with additional evidence.
In Weigert-D agen, this court on that record found that the word “huarache” was ambiguous and of doubtful meaning, and adopted the definition provided the negotiators of the Mexican Trade Agreement by the Tariff Commission. That definition reads:
[98]*98Huaraches are leather-soled sandals having woven-leather uppers laced to the insole. The insole is machine-stitched to the outsole, and the heel is nailed on. They are used principally by women and girls for beach and casual summer wear.
It then, decided that none of the merchandise involved in Weigert-Dagen satisfied the quoted definition.
The Fuchs case involved merchandise stipulated to be “the same in all material respects” as that in Weigert-D agen, and the evidence in the latter case was incorporated in the Fuchs record. After reviewing the new evidence the court interpreted “woven-leather” to mean “wholly woven,” adhered to the definition in W eigert-D agen, and held that the merchandise in Fuchs did not satisfy that definition.
Here the Customs Court correctly found that the merchandise does not differ in any material respect from one type involved in the Fuchs case, which was there held on that record not to be huaraches. That holding is not disputed here.
We agree with the following excerpt from the majority opinion below:
In view of the fact that tbe exhibits in the case at bar are basically the same in construction as exhibit 3 in the Fuchs case, and that the record in that ease (which included the record in the Weigert-D agen case) was incorporated as part of the record herein, it will be seen that the outcome of this ease depends upon whether anything contained in the additional evidence offered in the case at bar does effect, or could effect, a conclusion as to the meaning of the term “huarache” different from that adopted in the Weigert-D agen and Fuchs cases in the sense of including footwear such as that at bar.
Exhibits 1 and 2 are representative of the imported merchandise. They are identical in construction but differ in size and color combinations. They are both without heels. The toe portion or vamp consists of a piece of slitted leather interwoven with fourteen flat leather thongs which are laced to the insole. The back quarter or counter consists of a slitted piece of leather machine stitched to the insole. Four flat thongs are interlaced into and extend completely around the counter, are interwoven on each' side of the shoe with some of the thongs of the vamp, and are laced to the insole. The insole is machine stitched to the outsole. Each exhibit has an instep leather strap and buckle.
It is incumbent upon us to evaluate the testimony in this case to endeavor to determine whether the imported footwear are “huaraches” within the meaning of the Trade Agreement irrespective of the conclusions reached in the two previous cases on their records.
The only witnesses called to testify were not contradicted in their statements that the merchandise at bar constituted huaraches. Of the three witnesses, one was an interested party, the plaintiff. The other two were not. All were well qualified to give expert testimony on the subject matter. For example, David L. Neumann, an importer of Mexican goods including huaraches, who qualified as an expert [99]*99on this subject, having written several articles about Mexican arts and crafts including one referring to the manufacture and importation of huaraches, unequivocally testified that the merchandise at bar constituted huaraches. He testified as follows:
X Q. Now, have you bought and sold huaraches in the United States?
A. Yes.
X Q. What type of merchandise have you bought and sold as huaraches in the United States?
A. In 1934 I made my first purchases of huaraches for importation to the United States, and sold them here in a retail store in Miami Beach, in Florida.
X Q. All right. Now describe the type, the appearance of that one.
A. We were at that time dealing primarily in two kinds of huaraches; one was the huarache which was made in Oaxaca and the other was purchased in Mazatlan and was identical with this little one on the table.
XQ. Identical with Exhibits land 2?
A. That is right.
Most persuasive also is tbe testimony given by Joseph L. Kleinman, appraiser of merchandise, who has been in the Customs Service since 1923 as an inspector, entry clerk, liquidator and deputy collector. During this period he was located in the area of the southern border of the United States. Part of this testimony reads as follows:
Q. And, during all that period of time, have you become familiar with the merchandise that is imported at this area or through this area; through the port of El Paso or Nogales from Mexico?
A. I think so.
Q. Have you had occasion to pass upon, examine and appraise articles like Exhibits 1 and 2 in this case?
A. Yes.
Q. And, also like illustrative Exhibit D?3
A. Yes, sir.
Q. And, are you familiar with the area from which they come in Mexico?
A. To some extent, yes.
Q. How did you become familiar with that knowledge?
A. Handling the importations as examiner and appraiser, seeing the invoices, knowing where the shipments originated.
Q. Have you talked to importers and shippers as well?
A. Yes.
Q. Or just importers?
A. Importers and shippers.
Q. Now, looking at Illustrative Exhibit D, you are familiar with that item?
A. Yes, sir.
Q. Do you know what it is called?
A. What do you mean ?
Q. Whatisthename given to you ?
A. Huarache.
Q. Do you know what area it comes from?
A. Well, that is ordinarily known as Oaxaca huarache and Guadalajara.
Q. Guadalajara is one of the principal markets in Mexico for all kinds of huaraches?
[100]*100A. Yes, sir.
Q. And, you can get Oaxaca and all other types there?
A. Yes, sir.
Q. X show you Exhibits 1 and 2 and ask you if you know where those came from?
* * * * * * *
The Witness: They came from Mazatlan, Sinaloa, Mexico.
By Mr. Stein:
Q. Mr. Kleinman, have you received many or did you receive few such articles or huaraches from the same part of Mexico?
A. Many.
Q. Do you recognize these articles as a particular type which comes from Mazatlan?
A. Let me say this: that type is made in other parts of Mexico; for instance, Guadalajara, but is generally known as the Mazatlan sandals.4
Q. Just as this is known as a Oaxaca, pointing to Exhibit D ?
A. Yes.
Q. What is there about Exhibits 1 and 2 which identifies it to you as a Mazatlan huarache?
Miss Strum: I object. I don’t think it is material to this case.
Judge Ford: Objection overruled.
The Witness: Construction and appearance.
Q. And, what is the construction — about the construction which distinguishes it to you as being from Mazatlan?
A. Instead of having a woven upper entirely, that it has a solid piece of leather as an upper through which narrow strips of leather are laced and laced to the insole also and the fact that it has a counter or heel piece through which leather strips are laced and that the leather heel piece or counter are stitched to the sole.
Q. You returned these, did you not, at 20 per cent under Paragraph 1530(e), did you not?
A. Yes.
Q. Did you do that on your own judgment or were you ordered to do that by the Bureau of Customs?
*******
The Witness: I’d have to add that it was a little of both. The Bureau of Customs instructed us, of course, but they also gave us a definition that would govern us in our decision as to what was a huarache and what was not a huarache and in interpreting that decision, I would have to say also that I would not consider it a huarache and would advisorily classify it at 20 per cent following that definition they gave us.
Q. According to your personal opinion, not regarding the instructions from the Bureau, do you regard Exhibits 1 and 2 as huaraches or not?
* $ $ $ $ * ‡
[101]*101The Witness: According to my opinion, these were what I would have called huaraches before we got any definition as to what constituted a huarache under the Mexican Trade Agreement.
*******
Air. Stein:
Q. Let me put it this way, Mr. Kleinman, how long have you known articles like Exhibits 1 and 2 as huaraches?
Miss Strum: I object. I don’t think he is qualified to give trade testimony.
Judge Ford: Objection overruled.
Miss Strum: Exception.
The Witness: Since somewhere around 1935; near that date.
* * * # * # *
Q. Did you, Mr. Kleinman, advisorily classify articles like Exhibits 1 and 2 the same way as you did Illustrative Exhibit D prior to receipt of that definition?
Miss Strum: I object, your Honor. It is immaterial to this case.
Judge Eord: Objection overruled.
Miss Strum: Exception.
The Witness: Yes, because there was no difference prior to that; there was no difference. The term huaraches had never entered into the Tariff Act before that.
In appraising this witness’ testimony, Judge Ford stated:
Undoubtedly the witness is one of the foremost witnesses on this subject throughout the United States. * * *
It is interesting to note that the Government offered no testimony to refute the uncontradicted statements made by this and the other witnesses. So it goes unchallenged.
It should be remembered we have been called upon to determine whether Exhibits 1 and 2 are huaraches within the purview of the Mexican Trade Agreement and not whether some other types of sandals come within this category. If other types of sandals are presented to us in the future, the determination of whether they come under the' Trade Agreement should be made upon the basis of the facts of the case and whatever evidence may be offered at that time.
We believe the lower court summed up the situation correctly when it stated:
We think the evidence offered to us is clear, and moreover, uncontradicted, that the type of huarache described in the definition contained in the Digests of Trade Data is one associated with the place in Mexico called Guadalajara and that such huaraches are known as Oaxaca huaraches. Such a huarache was offered and received in evidence herein as defendant’s illustrative exhibit D and is conceded by the parties to be a huarache. (It is interesting to note that, although the toe, or vamp, portion of illustrative exhibit D is wholly woven, it possesses a piece of slitted solid leather acting as a back or counter, through which some of the leather strips from the vamp are laced. The back or counter is not stitched to the sole, but if the back be considered part of the upper, as we assume it must, the upper of illustrative exhibit D is certainly not wholly woven.)
[102]*102The evidence is just as clear and just as uncontradieted that footwear, such as plaintiff’s collective exhibits 1 and 2, was, at and prior to the effective date of the Mexican Trade Agreement, commonly known in Mexico and in the United States as huaraches, and more particularly as Mazatlan huaraches, taking their name after the area in Mexico in which they were generally made. We accept such evidence as an aid to our understanding of the common meaning of the tariff term “huaraches.”
We think we are justified in saying that had the evidence offered to us in this case been offered in the previous cases, a different conclusion would have been reached as to that portion of the subject merchandise which was of the same kind or type of footwear as is involved in this case, i.e., Mazatlan huaraches.
On the record before us, we hold that the common meaning of the term “huaraches” includes footwear of the kind or type described in the Digests of Trade Data, as set forth in the Weigert-Dagen and Fuehs cases, supra, and also includes footwear of the kind or type of plaintiff’s collective exhibits 1 and 2 in this case, which have been hereinbefore described.
In view of tbe foregoing, we affirm tbe decision of tbe Customs Court.