United States v. Bache , 1 Cust. Ct. 781 ( 1938 )

Kincheloe, Judge:

These appeals to reappraisement were decided by Judge Sullivan as sitting judge on October 5, 1936 (Reap. Dec. 3951). Judge Sullivan rendered a judgment holding that the entered values were the correct foreign values and the proper dutiable values. An appeal was then taken from this decision to this division by the attorney for the Government and later this division rendered a decision and judgment sustaining the judgment of Judge Sullivan (Reap. Dec. 4039). Thereafter the Government took an appeal to the Court of Customs and Patent Appeals and later the said court reversed the judgment of this division and remanded same for reconsideration of the issues on the record as made and in accordance with the views therein expressed (25 C. C. P. A. 387, T. D. 49466).

These reappraisements involve the dutiable value of certain gauge .glasses known as the Eureka and Hercules qualities, purchased by the ■importers from Joseph Tomey & Sons, Ltd., of Birmingham, England, ■and imported into this country in April and October 1935, in two rshipments. In red ink on the invoice in reappraisement 111688-A appears the following notation by the appraiser:

App. at Foreign Market unit value per doz. pieces less 50% discount less 2%% •cash discount (less 1 pence per dozen cost of fusing ends on Eureka only) F. O. B. ■Liverpool Incl. case and packing.

In reappraisement 112228-A, on the invoice in red ink, is the following notation:

Appraised at Home Market list prices less 50% discount less cash discount of :2yi% f°r cash less 1 pence per doz. for fuseing ends of Eureka glasses only F. O. B. 2?Kd. -

The attorneys for both parties conceded that the foreign-market values were the correct dutiable values and the per se prices were not in question. So the sole issue we had to decide was the amount of discounts applicable, and what constituted a wholesale quantity of each quality. Judge Sullivan held in his opinion the weight of evidence established that the usual wholesale quantity of the Eureka quality of gauge glasses is 1,000 feet or more, and of the Hercules quality, 500 feet or more; that the discount applicable to the sales of wholesale quantities of the' Eureka quality gauge glass were 80 per centum from the list price, with the further discount of 2J4 per centum for monthly payments; that the discounts applicable to the sales of wholesale quantities of Hercules gauge glass were 75 per centum and 10 per centum from the list price, with the further discount of 2% per centum for monthly payments; that the per se prices are those stated on the invoices; that the foreign-market value of these gauge glasses is the dutiable value thereof; that the export value is the same as the foreign value and is not higher; and that the entered value is the foreign-market value of the Eureka- and Hercules: gauge glasses in question.

During the trial of this case the attorney for the appellees introduced as a witness Isidore Sobel, who testified in substance that he was vice president of the appellee concern, being connected with it for thirty-eight years, and vice president since 1912; that his duties included purchase and.sale of merchandise for over thirty years; that personally he had to do with the purchase of the instant merchandise, which consists of two varieties known as Eureka low-pressure glasses and Hercules high-pressure glasses; that appellees import them in different diameters and lengths, and that the basic pricelist varies with the diameter of the glass and not with the length of the glass; that the range of diameters of both qualities runs all the way from % to % up to 1% inches in diameter, and in lengths from 3 inches to 84 inches; that the invoice, prices of both are the prices he paid for them, and that said prices still obtain. He éxplained how he arrived at the price of Eureka quality as follows:

—A. Our invoices, the unit price is based on so much per dozen feet less the three 10 discounts. Abroad they have a printed list price on which they allow certain specific discounts. It is quite annoying to be obliged to figure the list price less the discounts. The method that we have adopted for invoicing or, rather, the factory has adopted, is much simpler. They figure out the price per dozen feet, less the three 10’s instead of using the list price; but the net result, 80 per cent off the foreign list price, is equivalent exactly to the prices indicated on our invoices.

He stated that 80 per centum discount is allowed in the home market when purchases were made in wholesale quantities; that he is familiar with the manufacture of Eureka and Hercules glasses and has seen them manufactured; that the characters of glasses of the instant importation and the characters sold in England a.re of the same value and character; that he is familiar with the market values of both Eureka and Hercules qualities in England and has been for about thirty-eight years; that he has placed thousands of orders for gauge glasses during that time; that he obtains, quotations from abroad, not only from the manufacturer of the instant merchandise, but other shippers; that he obtains a knowledge of market value by seeing records in England, having conversations with heads of concerns over there; that he receives certified extracts of records right along; that he has records of invoices of gauge glasses for the home market consumption; that the prices for the Eureka and Hercules qualities of gauge glasses in the home market are not higher than the prices paid for the instant importations; and that the prices paid for the instant merchandise have been in effect for a period of six years.

At this point in the trial the attorney for the appellees offered one affidavit from the shipper of the Eureka glasses, which was filed as Collective Exhibit 1. This affidavit was executed by Joseph L. Tomey, managing director of Joseph Tomey & Sons, Ltd., of Birmingham, England, together with a transcript of records, sales, etc., of the Eureka quality.

On cross-examination by the attorney for appellant the witness, Sobel, testified in substance that the instant merchandise is first standard grade and not second; that he gets 80 per centum discount on Eureka quality because that is the wholesale market price of the manufacturer both at home and abroad to all wholesale buyers who purchase in quantities of 1,000 feet or more; that he was allowed 75 per centum discount and 10 per centum from the list price, with a further discount of 2/ per centum for monthly payments on purchases of Hercules glass in quantities of 500 feet or more; and that this is the wholesale market price of the manufacturer both at home and abroad to all wholesale buyers of the Hercules glass. The witness was then questioned as to the record of sales attached to said Collective Exhibit 1, which were under the heading of classes A, B, C, and D. He testified that A means small user, B refers to retailer, C to wholesaler, and D means large consumer, which might be a railroad company, a wholesaler, or a jobber; that the purchaser would have to be a wholesaler to come under class D; that in order to get the discounts allowed him in each of the qualities of the instant importation, purchaser would have to be a C or D buyer, but if an A or B buyer bought the quantities that the C or D buyer purchased, he would get the same discount; that the reason for the discounts allowed in each of these importations is not that the buyer buys extremely large quantities, but simply that the buyer buys in wholesale quantities, and that the same price would be effective for anybody who would buy in wholesale quantities; that if the small user ordinarily termed in this record of sales as buyer A, bought in wholesale quantities either quality of glass of the instant merchandise, he would receive the wholesale discount; that the appellee is a very large wholesaler and buys in quantities equal to class D, but that is not the reason he gets the discounts. It is because he buys as much as the minimum wholesale quantity or more. If he bought less than the wholesale quantity of either quality of merchandise he would not get the wholesale price. On redirect examination witness stated that the wholesale quantity of Eureka gauge glasses is 1,000 feet or more, and that the wholesale quantity of Hercules glasses is 5Ó0 feet or more. On recross-examination he stated that he knows the usual wholesale quantity of both qualities of the instant merchandise by being over in Europe, having looked at some oj the records, having received certified invoice copies of said glasses from the manufacturer, and from having conversations with the directors of the manufacturing company.

The said Joseph L. Tomey, in his affidavit, which is a part of said Collective Exhibit 1, testified in substance that the invoice prices to appellees for the Eureka quality, less discounts thereon noted, were the actual prices paid to his company by said appellees; that the net prices are equivalent to 80 per centum from the standard list prices of the manufacturer, and that the prevailing market prices of said quality in England for home consumption, when sold in the usual wholesale quantities and in the ordinary course of trade, were no higher, and that his company for ten years has freely offered the Eureka quality gauge glasses for sale to all purchasers of 1,000 feet or more at the price equal to the invoice price, less discounts thereon noted; and that the allowance of the wholesale discount depends wholly upon the purchase of 1,000 feet or more, without regard to the diameter of the glass, and without regard to the classification of the purchaser.

Attorney for the appellees also offered another affidavit of the said Joseph L. Tomey, together with a transcript of records of sales of the Hercules quality which was ordered filed and marked Collective Exhibit 2. The said Tomey, in this affidavit, states in substance that his company sells the Hercules quality gauge glasses for consumption in the home market and for export throughout the world; that for more than five years his company has freely offered for sale and now freely offers for sale said Hercules quality gauge glasses in England to all purchasers in the ordinary course of trade and in the usual wholesale quantities of 500 feet or more; and has been and is ready and willing to sell to any and all purchasers, whether small users, consumers, retailers or wholesalers, large users for export, Hercules quality gauge glasses identical to those shipped to the appellees, covered by tbe invoices in the instant case, at prices equivalent to those granted to said appellees in quantities of 500 feet or more. The affidavit also states that his company cannot and does not extend to small users, consumers, or retailers, or purchasers of less than 500 feet, the same rates of discount which are given to purchasers of quantities of 500 feet or more, because of the extra cost of handling small quantities. The attorney for appellees then rested.

Thereafter the attorney for the appellant filed, as Collective Exhibit 3, a report dated January 17, 1934, signed by Ronald N. Marquis, consisting of 5 pages and exhibits containing certain invoices and pricelists of the said Joseph Tomey & Sons, Ltd. He gives the discounts on Eureka as 10 per centum, 10 per centum, and 10 per centum, and on Hercules, as 75 per centum and 10 per centum, and states that these discounts have been in effect for the past three years. He states “the Eureka gauge glasses are usually sold in the home market at a per pound price which is equal to approximately 82 per centum off the fist price.” He then gives prices indicating that these gauge glasses are slightly cheaper in the home market than they are for export to the United States. As to the Hercules quality glasses he states: “Invoiced to the United States at list prices less a discount of 75%/10%. They are invoiced in the home market at net prices which are equivalent to a discount of 83% off the list price.” He states, under the heading of discounts: “From my inspection of the manufacturer’s records, his estimate seemed substantially right.” As to the usual wholesale quantity of the home market he states that “it is from 4 to 5 cwt. on up when sold by weight, and from 12 dozen upwards when sold by dozens” and continues, “The status of the buyer with the manufacturer, together with the quantity of merchandise purchased, determines the price to be paid. The manufacturer has no definite quantity specified which must be purchased to get any particular price. It is usually a case of bargaining between the purchaser and the seller.”

The attorney for the appellant also filed a special agent’s report of December 7, 1934, marked as Exhibit 4, consisting of two pages and signed by “Chas. R. Clark, Asst. Treasury Attache.” This exhibit is merely in regard to analysis requested by the Commissioner of Customs which we do not deem of any probative value in this case. The attorney for the appellant also filed a report of May 9, 1935, of six pages signed by Martin H. Rawlyns with Exhibits A and B, consisting of sales of Eureka and Hercules gauge glasses and a price-list issued by Joseph Tomey & Sons, Ltd., and marked “Collective Exhibit 5. ” Attached to this are exhibits which appear to be the same lists of sales as are part of Collective Exhibits 1 and 2. Attorney for the appellant also filed a report of March 16, 1936, of 2 pages signed by “Chas. R. Clark, Acting Treasury Attache” marked “Exhibit 6.” This report merely has reference to a prior decision of this court on similar merchandise, but in our judgment has no probative value so far as this case is concerned.

After thoroughly considering this entire record, including the oral evidence and Collective Exhibit 1, Collective Exhibit 2, Collective Exhibit 3, Exhibit 4, Collective Exhibit 5, and Exhibit 6, we held that the appellees had established by great weight of evidence that the entered values of both the Eureka and Hercules glasses were the correct dutiable values. We were very much impressed with the evidence of the witness Sobel and with the affidavits contained in Collective Exhibits 1 and 2, executed by the said Joseph L. Tomey.

The appellate court reversed our judgment and remanded same to this division apparently for the reasons, as stated by it, that this court erred in not taking into account the sales to retailers for resale in the determination of the usual wholesale quantity in the ordinary course of trade; that there is no evidence of record to establish that the sales to retailers, for resale, were not made in the ordinary course of trade; nor was there any evidence of record to establish that such sales, and sales to other purchasers, in quantities of less than 1,000 feet of Eureka quality and 500 feet of Hercules quality, were not in wholesale quantities except mere assertions by the witnesses Sobel and Tomey to that effect and that the assertions by these two witnesses were mere conclusions based upon facts appearing of record and therefore should not be given any weight by this court in determining the usual wholesale quantity of the merchandise in question in the ordinary course of trade in England.

The Court of Customs and Patent Appeals in its decision said:

In its decision, the appellate division of the Customs Court stated that all sales of less than 1,000 feet of the Eureka quality gauge glasses, and less than 500 feet of the Hercules quality, were “not in usual wholesale quantities,” and, therefore, should not be included in determining the usual wholesale quantities. [Italics quoted.] The court further stated that it was thoroughly familiar with the pronouncements of this court in United States v. Livingston & Southard, Inc., 23 C. C. P. A. (Customs) 214, T. D. 48060, and other cases, that the statutory “language ‘in the usual wholesale quantities’ was intended to refer to a major portion of the sales or offers for sale in wholesale quantities, etc.,” but that it did not believe that the rule stated in the decisions in those cases had any application to the issues in this case. [Italics quoted.]

In determining usual wholesale quantities, all wholesale quantities of the merchandise involved should, of course, be taken into account, and what the appellate division undoubtedly intended to say was that sales of less than 1,000 feet of the Eureka quality and less than 500 feet of the Hercules quality were not sales in wholesale quantities, and, therefore, should not be considered in determining the usual wholesale quantities.

What this division did say, is:

If it be a fact, and the great weight of evidence in our judgment substantiates it, that 1,000 feet or more of the Eureka quality and 500 feet or more of the Hercules quality were the usual wholesale quantities at the time of the exportation of the instant merchandise at which same or similar merchandise was freely offered for sale to all purchasers in England and in the ordinary course of trade, then the records of sale of each quality offered in evidence in this case in less quantities are, in our judgment, of no probative value because they were not in usual wholesale quantities. * * *

We made that statement because of the fact that both the witnesses Sobel and Tomey testified unequivocably that sales of less than 1,000 feet of the Eureka quality and 500 feet of the Hercules quality were less than wholesale quantities at the time of the exportation of the instant merchandise giving their reasons for same, and this evidence is not contradicted in this entire record except by a statement of Special Agent Marquis in Collective Exhibit 3, in which he stated the usual wholesale quantity of this merchandise in the home market is from 4 to 5 cwt. when sold by weight and from 12 dozen upwards when sold by dozens. This is a mere statement of his, unsupported so far as this record is concerned, and based upon nothing except his own opinion.

It is true that we cited in our opinion the case of United States v. Livingston & Southard, Inc., 23 C. C. P. A. 214, T. D. 48060, when perhaps we should have cited the case of United States v. Minkus, 21 C. C. P. A. 382, T. D. 46912, which held in substance that the language “in the usual wholesale quantities” was intended by Congress to refer to a major portion of the sales or offers for sale in wholesale quantities. However, this proposition was enlarged upon by United States v. Livingston <& Southard, supra. Also in said decision, the court further held in substance that in section 402 (c) of the Tariff Act of 1930 all unrestricted offers for sale, in the principal markets of the country from which the merchandise is exported, whether for home consumption or for export to countries other than the United States, should be considered in arriving at the foreign value of the merchandise. But we are still of the opinion that neither the Minkus nor Livingston & Southard cases, supra, has any bearing upon this case in view of the record made herein and for reasons hereinafter discussed.

The witnesses Tomey and Sobel both testified that the price did not fluctuate or depend upon the quantity purchased as long as a minimum wholesale quantity was involved. In other words, regardless of how much was purchased in excess of a wholesale quantity, the price remained the same. Therefore, the decisions in the Minkus and the Livingston & Southard cases, supra, have no application in this case because in those cases the prices changed because of a range of various wholesale quantities and the court held that the majority of sales in wholesale quantities both for home consumption and for export to countries other than the United States was the criterion in determining the usual wholesale quantity.

The court further said:

In the instant case, the Second Division of the United States Customs Court held that sales to retailers, for resale, were not sales in wholesale quantities, and did not take such sales into account in its determination of the usual wholesale quantities in the ordinary course of trade.

This is not a correct statement. We did not hold in our opinion nor do we hold here that there may not be transactions arising where sales to retailers for resale, or even to consumers, may not be considered in arriving at what constitutes a wholesale quantity. But primarily they must be sales of at least a wholesale quantity in the ordinary course of trade and without restriction. As well said in the case of United States v. Richard & Co., 15 Ct. Cust. Appls. 143, T. D. 42216, “the law is not concerned with the persons who buy, but the manner in which they buy.” [Italics ours.]

We did take into account in our decision in determining a wholesale quantity in the ordinary course of trade, sales to retailers for resale of such merchandise, but in view of the fact that the evidence in this case clearly shows that the sales of such merchandise to retailers and consumers of less than 1,000 feet of the Eureka quality and 500 feet of the Hercules quality were not sales in a wholesale quantity, we held and still hold that such sales are not sales of a wholesale quantity. This reasoning was substantiated by the testimony of Tomey and Sobel, in our judgment two of the best qualified witnesses available, managing director of the exporter, with twenty years’ experience as such, and the vice president of the importers, with thirty-eight years’ experience, respectively, who repeatedly stated that, based upon their experience in buying and selling such merchandise, the wholesale quantity consists of at least 1,000 feet of the Eureka quality and 500 feet of the Hercules quality, and further testified that anyone, whether he be wholesaler, retailer, or consumer, could buy said merchandise at that price if bought in that quantity, and on the other hand that if wholesalers and other large users bought said merchandise in a quantity less than a wholesale quantity they would not receive as large a discount as if they bought in the said wholesale quantity. We invite special attention to the case of G. W. Pleissner v. United States, 16 Ct. Cust. Appls. 507, T. D. 43237, at pages 511 and 512, because of the fact they show that the evidence and conclusions of the appellate court are very similar to the evidence and our conclusion in this case, except the evidence in this case has much more probative value than in the Pleissner case, supra.

In its opinion the Court of Customs and Patent Appeals stated:

* * * we think it may be said that, as a general proposition, where goods are sold in the ordinary course of trade to retailers, for resale, the other essentials in the statutory definition of foreign value being present, such sales are sales in wholesale quantities, and should be considered together with other sales in wholesale quantities in “determining what are usual wholesale quantities.” [Italics ours.]

Tbe above rule as laid down by our appellate court, as a general proposition, might govern in some instances. However, the facts in each case must determine whether the general rule or the exception thereto applies. We think that the weight of evidence establishes that the exception to the general rule applies in this case, for the reason that the facts show that the other essentials in the statutory definition of foreign value are not present and therefore clearly distinguish this case from the adaptability of the general rule.

The appellate court also refers to its decision in the case of Jenkins Bros. v. United States, 25 C. C. P. A. 90, T. D. 49093. That case evidently was decided on the record made therein, and the record in that case was not incorporated in this case. We decided this case “* * * solely and alone upon the record as it is submitted to us.” See Pleissner case, supra.

The appellate court further stated:

It clearly appears from the record, and there is no evidence to the contrary, that retailers and wholesalers, as well as all other purchasers, purchasing quantities of less than 1,000 feet of the Eureka quality gauge glasses and less than 500 feet of the Hercules quality, pay the manufacturer’s list prices, less varying discounts, depending upon the quantities purchased, and that both qualities of gauge glasses are freely offered for sale in England to such purchasers, in such quantities, and at such prices.

In view of those facts, can it be said that those offers for sale, and sales made in accordance therewith, were not in the ordinary course of trade?

Even conceding they were made in the ordinary course of trade, they were not in wholesale quantities nor at any one price to all purchasers, for tbe reason that these small quantities are more or less a question of bargaining for a price and therefore were not at a uniform price, as stated in Special Agent Marquis’ report, Exhibit 3, which states: “It is usually a case of bargaining between the purchaser and the seller,” and this is further corroborated by the affidavits, collective Exhibits 1 and 2, of the said Tomey, who stated, “that my company can not extend to small users, consumers, and retailers or other purchasers of less than [1,000 feet or 500 feet] the same rates of discount which are given to purchasers of quantities of [1,000 feet or 500 feet] or more because of the extra costs to us of handling small quantities.”

The court also said:

There is no evidence of record to establish that the sales to retailers, for resale, referred to in the testimony of the witnesses for appellee, were not made in the ordinary course of trade. Nor is there any evidence of record to establish that such sales, and sales to other purchasers in quantities less than 1,000 feet of the Eureka quality and 500 feet of the Hercules quality, were not in wholesale quantities, except mere assertions by the witnesses Sobel and Tomey to that effect. Inasmuch as those assertions were mere conclusions based upon facts appearing of record, they should have been given no weight by the courts below in determining the usual wholesale quantities of the merchandise in question in the ordinary course of trade in England. [Italics ours.]

To us this is the most startling statement of the whole opinion and it makes us wonder if the appellate court really did give the evidence in this case the consideration and careful study it really deserved.

The evidence upon which this court based its conclusions were not “mere assertions” of the witnesses Sobel and Tomey, but statements of facts made by these two witnesses under oath, and the testimony of these witnesses was not confined to “mere conclusions based upon facts appearing of record,” but the witness Sobel unequivocably stated, as a fact within his knowledge, that a wholesale quantity did consist of 1,000 feet of the Eureka quality and 500 feet of the Hercules quality, respectively, and he was corroborated by the affidavits (Collective Exhibit 1 and Collective Exhibit 2) of the said Tomey. It should be especially noted that the affidavits of said Tomey are very similar, both in form and substance, to the affidavit executed by Willy Guenther in the Pleissner case, supra.

In the Pleissner case, supra, the court in its opinion stated in part as follows:

It therefore appears that there is no substantial evidence, and, in fact, no evidence at all, in contradiction of the statements of Pleissner and Guenther, heretofore quoted.

So we say in this case, it therefore appears that there is no substantial evidence, and in fact no evidence at all, in contradiction of the statements of Sobel and Tomey.

If the testimony of men with years of experience in buying and selling such merchandise all over the world, and said testimony being based upon that experience, and not “mere conclusions based upon facts appearing of record,” is not to be given probative value, then we confess we do not know probative evidence when we hear or read it. Who are better qualified to give evidence as to what constitutes a wholesale quantity of such merchandise than these two witnesses? And this testimony is not contradicted except by a mere conclusion, as above set out, in the report of the Treasury representative in Exhibit 3. In other words if the opinions of witnesses, who testified they have had years of experience in buying and selling a commodity in the trade and commerce of the world, as to what constitutes a wholesale quantity of such merchandise, is not expert testimony and is of no probative value, then we also confess we do not know the value of expert testimony and why it is ever permitted in the courts of this country in any case.

If the method pursued by the attorney for the importer in this case, and the nature and extent of proof offered, is not the proper method or is insufficient to establish the fact that 1,000 feet of the Eureka quality and 500 feet of the Hercules quality, respectively, constitute a wholesale quantity, then we confess that we need enlightenment on the subject.

The last paragraph of section 501 of the Tariff Act of 1930 reads as follows:

The judge shall, after argument on the part of any of the interested parties requesting to be heard, render his decision in writing together with a statement of the reasons therefor and of the facts on which the decision is based. Such decision shall be final and conclusive upon all parties unless within thirty' days from the date of the filing of the decision with the collector an application for its review shall be filed with or mailed to the United States Customs Court by the collector or other person authorized by the Secretary of the Treasury, and a copy of such application mailed to the consignee, or his agent or attorney, or filed by the consignee, or his agent or attorney, with the collector, by whom the same shall be forthwith forwarded to the United States Customs Court. Every such application shall be assigned by the court to a division of three judges, who shall consider the case upon the samples of the merchandise, if there be any, and the record made before the single judge, and, after hearing argument on the part of any of the interested parties requesting to be heard, shall affirm, reverse, or modify the decision of the single judge or remand the case to the single judge for further proceedings, and shall, state its action in a written decision, to be forwarded to the collector, setting forth the facts upon which the finding is based and the reasons therefor. The decision of the United States Customs Court shall be final and conclusive upon all parties unless an appeal shall be taken by either party to the Court of Customs and Patent Appeals upon a question or questions of law only within the time and in the manner provided by section 198 of the Judicial Code, as amended. [Italics ours.]

Tbe court further said:

It is not within the province of this court to make findings of fact in reap-praisement cases. The jurisdiction of the court, in such cases, is limited to the review of judgments of the appellate division of the United States Customs Court on questions of law only.

We thoroughly agree that the court was right in this statement, as this is clearly and plainly set out in section 501, supra. Yet the court then further said:

We are of opinion that there is no substantial evidence of record to support the findings of the appellate division of the Customs Court. [Italics ours.]

Can anyone read this opinion and say that the court has not made findings of fact? If we understand this opinion, the court has made “findings of fact” all through same, a thing which Congress expressly forbade as shown in section 501, supra.

The appellate court has a perfect right to pass upon all questions of law, in all reappraisement proceedings, but this court claims and seriously contends that it has the exclusive right, as clearly given us by Congress, to pass upon all findings of fad. We say, with pardonable pride, that we feel this court is amply qualified to know and judge probative evidence in reappraisement cases and evidently Congress thought so when it enacted the above language, giving this court exclusive jurisdiction of findings of facts in all reappraisement cases.

As hereinbefore stated, section 501 of the Tariff Act of 1930 clearly limits the jurisdiction of the Court of Customs and Patent Appeals, in reappraisement cases, to the determination of questions of law only. Therefore, we feel that any conclusion reached by it through the determination of the weight to be given evidence, especially when such evidence is competent legal probative evidence of record, is not binding upon this court.

We further feel and fully realize that this court is bound by and must follow any principle of law as decided by said court; however, we do not feel that the conclusion reached in this case, in view of the record herein, is contrary to any principle of law as expressed by the Court of Customs and Patent Appeals.

After careful reconsideration of this entire record in the light of the opinion of our appellate court, and in view of the further fact that this court is the sole judge of facts and findings of facts in all re-appraisement cases, as specifically provided by Congress in the Tariff Act of 1930, we cannot help but feel, with all due respect to our appellate court, that it reversed our decision upon a wrong premise and predicated this premise upon a state of facts, which, in our judgment, did not exist in the record.

Therefore, in view of the importance of this case, and in order that justice may be rendered to both appellees and appellant, we think it is our duty in the premises to reaffirm our original judgment, in order to give our appellate court another opportunity to review again not only the record of this case and our decision and judgment but its own.

We think the testimony of Sobel, considered with the affidavits of Tomey together with the transcripts of sales attached thereto, comprise substantial evidence of the facts that sales of less than 1,000 feet of the Eureka quality and 500 feet of the Hercules quality were not sales of a wholesale quantity.

We also think that the testimony of Sobel, considered with the affidavits of Tomey with transcripts of sales attached, comprise substantial evidence of the facts that 1,000 feet of the Eureka quality and 500 feet of the Hercules quality are the minimum wholesale quantities of this merchandise, and that the prices that were freely offered to all purchasers of such quantities, in the ordinary course of trade, either in the foreign market or for exportation to the United States, were the entered values.

We therefore find the following facts:

1. That the merchandise covered by these reappraisements consists of Eureka and Hercules qualities of gauge glasses.

2. That the foreign-market value of both of same is the correct dutiable value thereof.

3. That the export value is the same as the foreign value and is not higher.

4. That the wholesale quantity of the Eureka quality of gauge glass and the Hercules quality of gauge glass, in which such merchandise was freely offered for sale to all purchasers in the principal markets of England at the time of exportation of the instant merchandise and in the ordinary course of trade was 1,000 feet or more for the Eureka quality and 500 feet or more for the Hercules quality.

5. That, the discount applicable to the sales of wholesale quantities of the Eureka gauge glass is 80 per centum from the list price, with the further discount of 2% per centum for monthly payments.

6. That the discounts applicable to the sales of wholesale quantities of Hercules gauge glass are 75 per centum and 10 per centum from the list price, with a further discount of 2 % per centum for monthly payments.

7. That the per se prices are those stated on the invoice.

We hold, as a matter of law, that the correct dutiable values of the instant merchandise are the foreign-market values of both Eureka and Hercules gauge glasses in question, and that the judgment of the sitting judge in this case is hereby affirmed.

Judgment will be rendered accordingly.