Cottman v. United States , 1932 CCPA LEXIS 246 ( 1932 )

DISSENTING OPINION

GaReett, Judge:

In dissenting from the former decision of this court, United States v. J. H. Cottman & Co., 18 C. C. P. A. (Customs) 132, 136, T. D. 44095, which resulted in remanding the suit for a new trial, such comment as I then made was directed principally to the express adjudication by the majority that the price at which the phosphate rock was shown to have been sold and offered for sale to farmers in Morocco for their own use did not constitute foreign value in the sense of the antidumping law.

Since the case was being remanded I could discern no sound reason for then adjudicating that single question, but I went no further than to state:

I am not now prepared to concur in the view which they [the majority] express upon that subject * * *.

I felt that in view of the course it had been determined by the majority to take with the case, it was not necessary — possibly not proper — that I then say more.

Since the present judgment constitutes a final disposition of all the issues involved in the suit, so far as this court is concerned, I deem it now proper to say that, in my opinion, for the purposes of this case, either the sales and offers of sales to the farmers, or farmers’ cooperatives, or the sales and offers of sales to the factory, could and should, under the particular phraseology used in the law, be held to constitute transactions “in the ordinary course of trade” in raw phosphate rock in Morocco. It is my opinion that in defining foreign value in section 205 of the antidumping act, Congress, by using the phrase “in the ordinary course of trade for home consumption” (italics mine), must have intended it to be understood that what is there meant by “the ordinary course of trade” is the ordinary and usual course of trade in the particular merchandise involved in the country from which exported for a particular and specific purpose — “home consumption.”

The statutes construed in the case of Goodyear Tire & Rubber Co. v. United States, 11 Ct. Cust. Appls. 351, T. D. 39158, and in the other cases cited in the majority opinion, did not contain the phrase “for home consumption.”

The majority opinion says:

* * * The phosphate rock received by farmers and farm cooperatives in Morocco could not be sold and must be used in Morocco by the individual receiving it. * * * The game may be said of the sales to the superphosphate works.

From this it is concluded that a restricted market results, defeating free sales or free offers to sell.

This apparently reads out of section 205 the words “for home consumption,” or, at least, disregards this important element in the yardstick which Congress expressly adopted for measuring or determining foreign value in the administration of the antidumping act.

Even if it be granted that, in a sense, a restricted market results, the fact remains that Congress has made the element which brings about the restriction an essential one for taking the measure of the particular foreign value which is applicable in this particular law.

The very phraseolgy, naming the different elements entering into foreign value, itself restricts the sales made or offered that are to be considered in determining foreign value to those “for home consumption.” It is not questioned that any one in Morocco who had any personal use for raw phosphate rock “for home consumption” could buy it freely in the usual wholesale quantities for that purpose, which is the only purpose the statute prescribes.

While that portion of the antidumping law defining “dumping” leaves much to be desired for clarity as to congressional meaning, section 205 defining foreign value jor the purposes of the particular act seems to me to be quite clear.

I can not but feel that the majority is here applying a principle derived from the construction of other “foreign value” sections to a section whose wording embraces language not contained in the formerly construed sections, and that in so doing they, in effect, take out of the section an important and, presumably, a deliberately used phrase expressive of the legislative purpose and will.

I have used above the expression “for the purposes of this case. ” That is used for the obvious reason that, under a different state of facts, it might be necessary under my view of the case to determine and adjudicate the question of which sales (those to the farmers or those to the factory) constitute foreign value. Here it would not be necessary, even were mine the prevailing opinion, because if either were taken the result would sustain the importer’s contentions.

There are other phases of the majority opinion with which I am in disagreement, such as the effect to be given the sales to Japan and certain other foreign countries; but realizing the fact that dissenting opinions are seldom of any real value, I am content to forego further discussion.

I think judgment should be for the importer.