Brown, Judge:
This case was brought at Seattle, Wash., and tried partly there and completed in San Francisco and Los Angeles before a single judge of this court on circuit duty on the Pacific coast.
The local appraiser had appraised the rubber-soled shoes involved at the American selling price of an American shoe which he claimed to be comparable, President Hoover having advanced the statutory amount of duty by changing the method of valuation to the American selling price of a comparable American article defined in section 402 (g) of the Tariff Act of 1930, from the previously existing foreign value, 63 Treas. Dec. 234.
The importer appealed to reappraisement and the contest, which was vigorously fought on a long record, turned principally upon whether or not a comparable American article existed. The single judge hearing the appeal decided it did not exist and sustained the importer's con- - tention in that regard, holding the appraisement of the local appraisér illegal because of that fact. He nevertheless dismissed the appeal to reappraisement for what he considered a failure to prove foreign and export value, thus in legal effect applying the illegal American selling price as the dutiable value.
From his decision an appeal was taken by the importer to this division.
After a careful analytical study of the record we agree with the part of the decision of the judge below which holds that there is no comparable American article and that, therefore, appraisement cannot be had on the American selling price for that reason. However, with his judgment dismissing the appeal to reappraisement we are unable to agree.
The effect of affirming the decision below would be that, although two courts have held the appraised value on the American selling price of a comparable American article is illegal because there is no such comparable article, the importer must, nevertheless, pay duty upon such illegal value.
The court below held (and this court on appeal agrees) that it was illegal to value these shoes upon the value of a comparable American shoe (as proclaimed by the President) because there existed no comparable American shoe upon which to appraise it. That is not a holding that the amount of the local appraiser's finding was erroneous, but that the appraisal was illegal and void. No statutory presumption then attaches to it. It is the same as if it were not there. Presumptions from nothing do not presume very far. We do not live with Alice in Wonderland.
Yet if the court below was right in dismissing the appeal before him the legal effect is that the importer must pay upon such illegal value nevertheless. That is a rough and unjust result which could easily be avoided by this court by remanding this case for the taking of new evidence of foreign or export value on retrial below. There is no difficulty in doing that in the interest of justice. After the decision below the importer moved for retrial to take further proof of foreign and export value. This was denied by the trial judge.
Now, what is the evidence which the court below holds did not justify his finding a value, so that he dismissed the appeal and by so doing applied the appraiser's value which he had just held illegal?
Witness Hoshide [R. p. 16]:
Q. Mr. Hoshide, do you know the landed cost of merchandise such as Exhibit 1 to your company? — A. Yes.
Q. And are you able to estimate from that landed cost what the wholesale selling price would be in the United States in February of 1936 if the merchandise were dutiable at the foreign or export value? — A. Yes.
Q. And would you state what that value is? (Objection to qualifications sustained.)
Q. What are the nature of your duties in reference to the selling of your merchandise? — A. I must arrive at the selling price through a process of calculation from the price obtained from the manufacturer.
Q. And just tell us how you do that. — A. Well, your price from the manufacturer in the yen must be exchanged into United States currency at approximately the current rate of exchange, and using the foreign value, if in case the foreign value is the dutiable value, as a basis for estimating the duty, then adding the charges for customs brokerage bond, wharfage and handling, and other miscellaneous items which may come in, the sum total of which divided by the number of pairs of shoes will give you the average selling price per pair.
Q. And do you do that regularly with the merchandise which you import?— A. Yes.
Q. Is that a part of your regular duties with the company? — A. Yes, sir.
Q. Now would you state what your selling price would be on these particular shoes in February of 1936 if you were paying duty at the foreign or export value? (Objection and argument without a ruling. Question apparently withdrawn.)
Q. Mr. Hoshide, have your entries of shoes such as Exhibit 1 been appraised at Seattle with a finding of the existence or nonexistence of dumping duties; do you know? — A. Yes.
Q. And do you know whether in making such an appraisal the appraiser determined the foreign value of the commodities? — A. Yes, he did.
Q. And in this particular instance do you know whether there was or was not any finding of dumping? — A. There was no finding of dumping.
Q. Do you, therefore, know whether or not your invoice value represents the foreign-market value? — A. I do.
Q. Now, basing your calculation upon your invoice value, would you state what the selling price per pair of the shoes covered by this invoice would bo if they were dutiable at the foreign value?
After objection and argument Judge Cline ruled as follows:
Judge Cline. They are bound by the Presidential Proclamation, but counsel here is contending that the appraisement at the American selling price was illegal, these should have been appraised at the foreign or export value. Now he is trying to show just exactly what the wholesale price would have been at the foreign value on the date of shipment. I think that is admissible in an action of this kind.
Q. Would you state what those values are? — A. Between 30 and 40 cents United States money, ex dock, Seattle.
Q. 30 or 40 cents per pair? — A. Per pair.
Q. And that would be your wholesale.market value in the United States during February of 1936? — A. Yes.
Judge Cline. That is the price at which you would have offered them for sale?- — A. Yes.
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By Mr. McDermott [R. p. 22]:
X Q. You are affiliated with the importer? — A. Yes, I work for the importer.
X Q. The importing concern here is an affiliate of the exporting concern, isn't it? — -A. No.
X Q. Is the importing concern a corporation? — A.' It is.
X Q. Is the exporting concern a corporation? — A. It is.
X Q. Do they have the same Board of Directors, do you know?- — A. I know. They do not.
X Q. Are there any officers of the importing concern who are also officers of the exporting concern? — A. There are not.
X Q. Could you please describe the relationship between the importer and the exporter? (After objection overruled and restated.) — A. We as the importer have the sole export sales rights for the manufacturer.
# * ⅜ ⅜ # ⅜ ⅜:
Mr. McDermott [R. p. 29]:
R. X Q. On or about February 18, 1936, did you know the prices at which merchandise like Exhibit 1 was offered in the usual wholesale quantities in the country of exportation in the ordinary course of trade? — A. Yes.
R.XQ. You did? — A. Yes.
R. X Q. How did you ascertain that knowledge? — A. From a communication with the manufacturer.
R. X Q. So your basis of your knowledge is by written documents from the manufacturers? — A. And also from our own office in Japan.
♦ *
By Mr. Tuttle:
R. Q. Mr. Hoshide, you were just asked if you knew the foreign-market value on the date of exportation. Please state what that value was. — A. The value was in yen 80 cents or 85 sen per pair c. i. f. Seattle. •
R. Q. Did that include the cost of all cases and packing and local freight as well as the ocean freight? — A. Yes, it did.
R. Q. Would you state what the value was in Japan packed ready for shipment to the United States? (After objection overruled.) — A. 70 sen per pair.
By Mr. McDermott:
R. X Q. Was the price you paid for the merchandise described on the invoice-covered by this appeal to reappraisement equal to the foreign-market value at the date of exportation? — A. Yes.
Here it should be noted that the price stated in the invoice is 70 sen.
Mr. Birks, the examiner who made this contested appraisement, also approved an antidumping report attached to the invoice which shows no dumping and reads as follows:
Appraisement report under Anti-Dumping Act: Foreign market value on date of export less than exporter's sales price.
That certainly indicates that the customs office in Seattle, including this experienced examiner, knew something about the foreign value and the export value of this merchandise at the time of shipment. His ordinary duties as an experienced and skillful examiner would imply that anyway, particularly as the statute enjoins the appraiser in section 500:
(3) To ascertain whether the merchandise has been truly and correctly invoiced.
This applies to all merchandise including that assessed on the value of a comparable American article.
His making of the check mark in red ink together with his approval, also noted in red ink under "Remarks" in the summary, also show he found nothing at fault with the invoice value of 70 sen per pair.
All this, which would be presumptively so anyway, indicates that Mr. Birks was qualified to testify as to the foreign-market value.
He testified as follows:
Mr. Tuttle [R. p. 34]:
Q. Mr. Birks, do you know what the foreign or export value was in February of 1936 in Japan for merchandise similar to this? — A. I know approximately what it was.
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Q. Mr. Birks, would you state what the foreign or export value was on the date of exportation of this merchandise?
Judge Cline. If you know.
—A. As near as I could determine the value was 68 sen per pair packed.
Judge Cline. The foreign value?
The Witness. Foreign value.
Q. That is higher than the export value, or there was no export value? — A. That was less than the invoiced value.
Q. No; I am asking you now-you know there are two provisions, one for export and one for foreign, whichever is the higher. 68 sen you stated the foreign value. Now, was that higher than the export value, Mr. Birks?
*
Q. Mr. Birks, if this merchandise were not dutiable under Presidential Proclamation at American selling price would you have appraised it at 68 sen per pair?— A. From what information I had at the time I would have appraised them at 68 sen per pair packed.
This last answer shows that he did not think the invoice price of 70 sen denoted a higher export value. On the contrary it asserts that the examiner considered there was no higher export value than 68 sen.
[R. p. 46.]
Q. What is the usual wholesale quantity of the merchandise like Exhibit 2?— A. 144 pairs.
The above evidence ought to be plainly sufficient to justify a finding by this court of a dutiable value of 70 sen per pair. It is the opinion of the signer of this opinion that it does. But unfortunately many consider the court of appeals decisions are to the contrary and the Government insists that it is not sufficient and demands, in brief and oral argument, that the ruling of the judge below dismissing the appeal for lack of evidence be affirmed, and opposes a remand for further evidence of foreign and export value, which would be the only reasonable, just, and fair procedure for this court now to take under the circumstances as they have developed.
When the case was decided by the judge below dismissing the appeal for lack of evidence the importer moved for a rehearing for the purpose of making further proof of foreign and export value. This motion the Government vigorously and successfully opposed. The judge below overruled said motion. Why is such an attitude taken? Why such refusal to take the obviously fair and reasonable course? It is true that the cases cited by the Government, where the Court of Customs and Patent Appeals have ordered dismissal of appeals in reappraisement in somewhat similar situations, would justify us if we followed them literally in the legal act of ordering this appeal dismissed, no matter what plain miscarriage of justice would result. Fortunately, however, they have also left us open to use the fair and just alternative of remanding the case for the taking of further evidence. In the Woolworth case, 22 C. C. P. A. 184, 191, T. D. 47126, Judge Garrett said with the approval of the whole court except Judge Hatfield, who did not participate:
The statute provides that the division of three judges "shall affirm, reverse, or modify the decision of the single judge or remand the case to the single judge for further proceedings." The authority thus given is very broad. Certainlv the appellate division passes upon questions of both law and fact. We think it may appraise, that is, find the dutiable value, and that it is its duty so to do in all cases where the appraiser had the power to appraise the merchandise at the time the appraisement was made. If it reg%rds the value found by the single judge as both legally and factually correct, it should affirm such value. If not regarded as correct, it should find what is the value, or, if the record be insufficient, in its opinion, to enable such finding, the case should be remanded to the single judge with directions to dismiss the appeal to reappraisement or for a new trial, as the division may determine. [Emphasis mine.]
That enables us to remand this case for retrial to promote the ends of justice. «
Dismissing appeals to reappraisement for lack of evidence is a purely modern judicial invention. From the time this court was first created under the name of the Board of General Appraisers, in 1890, no appeals to reappraisement were dismissed for lack of evidence until the first ruling to that effect by the Court of Customs and Patent Appeals in J. H. Cottman & Co. v. United States, 20 C. C. P. A. 344, T. D. 46114, decided December 19, 1932.
That, of course, was after appeals to the Court of Customs Appeals upon questions of law only were permitted by section 501 of the Tariff Act of 1922.
Previous to that case this court always found a value on reappraisement appeal from whatever evidence there was before it, however meager, as the statute explicitly and expressly commands.
It was almost entirely a purely fact finding process, final and summary in character. The importer's protest against the legality of an appraisement or reappraisement was very limited in scope. It only covered matters which amounted to a jurisdictional defect. When successful it properly and rightly resulted in liquidation upon the entered value. '
The present procedure is much more cumbersome and troublesome to apply, with long drawn-out value contests. It is much more difficult for business in foreign trade to adjust itself to it. As a rule the business man must be relatively certain of the customs value to be applied before he can safely make extensive importations. Pitfalls such as that developed here are a brake on such trade. There is nothing expressly stated in the statute which expressly authorizes the dismissal asked for by the Government. On the contrary, the statute expressly commands the finding of value. Dismissal, therefore, is an unreasonable implication.
Dismissal here legally results in an affirmance of the appraised value when it would be impossible for the court to find such appraised value was the correct dutiable value.
Business was better off under the expedition and certainty of the former system provided by the Tariff Act of 1913, than under the present system as now construed by the courts. Such construction should be abandoned. While it continues to prevail new trials should be granted as of course in situations such as that before us.
Previous to the act of 1922 nearly all appraisements were made on foreign-market value of which both export and home sales were direct evidence.
The act of 1922 instituted the protectionist device (never since repealed) to procure more duty (in addition to raising the rates of duty) by providing that the importer should pay duty upon the so-called "export value" evidenced by sales in the foreign market (or offers for sale) for export to the United States or upon so-called "foreign value" evidenced by sales, or offers to sell, in the foreign market place for home consumption, whichever was higher.
This separation to obtain more duty, however, was never intended to affect injuriously the judicial remedy by reappraisement or to increase the burden or difficulty of proving value on reappraisement appeal with the consequent diminution of the number of such appeals. Nor was it intended to cause an export sale to cease to be evidence of foreign-market value, which controlled in the absence of higher sales in the home market place for home consumption. An export sale is made in the home market place just as is a sale for home consumption. A seller in the wholesale foreign market place would not ordinarily care whether the purchaser from him shipped the goods to the United States or sold them to retail dealers in the home country. He would not ordinarily inquire their ultimate place of consumption provided he received his price. The separation into two definitions was only for the purposes of obtaining duty upon the highest possible value. It should be given no other effect. If it is now to be given the effect of destroying an export sale as evidence of foreign value, which evidence is controlling in the absence of sales for home consumption, it enormously increases the difficulty of reappraisement and hurts the effectiveness of the judicial review on questions of valuation.
This division of sales in the home market place into two definitions was certainly not intended to bring about, by indirection and circumlocution (through dismissal of the appeal), the use of the value of an American article for calculating duty, which we are simultaneously holding did not exist and, therefore, cannot be applied here. In finding dutiable value we could not find the value of a nonexistent article. Yet that would be the result of sustaining the order of dismissal of the court below.
When the expert Government examiner here testified that if the American selling price of a comparable American article was not to be applied he would have appraised this merchandise at 68 sen he thereby asserted that in his expert opinion that was the foreign-market value with no higher export value. He likewise asserted that there was nothing unusual about the quantity here shipped. If he had not so considered he could not have made that statement. If the importer is not entitled to rely upon that statement (as I would suppose) he surely is entitled to make supplemental proof supporting it, rather than to lose his case by default the really contested issue of which, concerning the application of an American selling price of a comparable article, he has already won.
Along with that change the doctrine was evolved by the court of appeals that an importer in a contest over the legal application of one value (here the American selling price of a comparable article) must also prove other values impliedly not under contest, at the risk of having his appraisement appeal dismissed for lack of evidence after having won his main contest before the courts. This untoward result actually happened in United States v. Gane & Ingram, 24 C. C. P. A. 1, T. D. 42264; United States v. Manahan Chemical Co., Inc., 24 C. C. P. A. 53, T. D. 48333; United States v. Philipp Wirth, 24 C. C. P. A. 188, T. D. 48654.
In these and similar cases the importer had to. pay duty upon a value, which the court he had appealed to held to be illegal, as a result of the dismissal of his appeal, an anomalous legal result. The same miscarriage of justice would happen here if we affirmed the dismissal of this reappraisement appeal by the judge below. Fortunately, such an untoward and unfair result may be easily avoided by remanding the case for retrial below. This will permit the importer to introduce further proof of foreign and export value and of the usual wholesale quantity. We therefore unhesitatingly adopt that course.
When two courses are open, one just and the other unjust, it does not add to the dignity of this court nor does it advance the course of justice or benefit the public, for whom this judicial review of administrative action was provided by Congress^ to adopt the latter.
It is ordered that this case be and it is hereby remanded to the next Seattle docket for the taking of further evidence by either party, to be considered by the judge of this court assigned to duty in that circuit along with the evidence already taken herein, according to the usual practice of this court.
Judgment will issue accordingly.