DISSENTING OPINION
Hatfield, Judge:I am unable to concur in the views expressed in the majority opinion.
The solution of the problem presented by the appeal depends upon a proper construction of section 489 and other sections of the act pari materia.
It appears from the record that appellant imported certain pulp-board from Canada and entered it at the foreign value. It was appraised at the entered value plus a Canadian sales tax of 5 per centum.
The importer — appellant—appealed to reappraisement.
While this appeal was pending in the United States Customs Court, appellant, • during the period from March 1 to August 28, 1926, made 40 separate entries of similar merchandise at the appraised value of the merchandise in the case then pending on appeal, and, in each of the 40 entries, certified that the entered value was higher than the "dutiable value” and that the merchandise was so entered in order to meet advances by the appraiser in the case then pending on appeal for reappraisement.
The sole issue in the “pending” case was whether the 5 per centum Canadian sales tax was included in the market value or the price at which such or similar merchandise was freely offered for sale to all purchasers in Canada. If it was, the appraised value was right. If it was not, the appraised value was wrong, and the entered value was the proper dutiable value of the merchandise. There was no issue involved relative to the cost of containers or coverings, if any, nor of any other cost, charge, or expense incident to packing the merchandise for shipment to the United States.
The trial court sustained the appraised value.
On appeal, the appellate division of the United States Customs Court held that the Canadian sales tax was not “imposed on such or similar goods” and, therefore, was not a part of foreign value. The judgment of the trial court was reversed and the entered value affirmed. Accordingly, the importer’s contention in the pending case was wholly sustained.
The merchandise covered by each of the 40 “duress” entries (so-called for want of a better term, although, technically, they were not made under duress) was appraised at the entered value. There*441upon, appellant was duly served with notice of the decisions of the appraiser. Instead of appealing from these decisions, as required by section 501 of the Tariff Act of 1922, which provides that the decision of the appraiser “shall be final and conclusive” unless an appeal is taken at the time and in the manner therein specified, appellant wrote a letter to the collector at the port of Detroit, inquiring as to the legal necessity of such action, and upon receiving a reply from the collector, which appellant construed, and possibly with reason, as meaning that it was not necessary to file such appeals, acted accordingly.
Appeals not • having been taken from the decisions of the appraiser, the collector liquidated each of the 40 “duress” entries in accordance with the appraised value.
It is claimed by appellant that the collector had no authority to assess the merchandise covered by the 40 “duress” entries upon the value returned by the appraiser in each of those entries, but, on the contrary, duties should have been assessed upon the final appraised value of the merchandise in the “pending” or'test case.
The court below, in a carefully prepared and, in my opinion, sound decision, by Cline, Justice, overruled the protest.
It has been conceded by counsel for the Government that the dutiable value of the merchandise covered by the 40 “duress” entries was the same as that involved in the “pending” or test case; and that, had appeals been taken, as provided by law, the final appraised value of the merchandise covered by the 40 “duress” entries would have been the same as the final appraised value of the merchandise in the “pending” or test case.
It is contended by counsel for the Government, however, that the collector is required under the law to assess duties upon the final appraised value, unless the entered value is higher; and that, as the merchandise in each of the 40 “duress” entries was appraised by the appraiser at the entered value and as appellant failed to appeal, the decision of the appraiser was final and conclusive and the collector was required by law to liquidate the entries accordingly.
The pertinent parts of sections 489 and 501 provide as follows:
Sec. 489. * * * Duties shall not, however, be assessed upon an amount less than the entered value, except in a case where the importer certifies at the time of entry that the entered value is higher than the value as defined in this Act, and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement or rereappraisement, and the importer’s contention in said pending cases shall subsequently be sustained, wholly or in part, by a final decision on reappraisement or re-reappraisement, and it shall appear that the action of the importer on entry was so taken in good faith, after due diligence and inquiry on his part, and the collector shall liquidate the entry in accordance with the final appraisement,
*442Sec. 501. Reappkaisement. — The decision of the appraiser shall he final and conclusive upon all parties unless a written appeal' for a reappraisement ■is filed * * *.
Section 503 of the Tariff Act of 1922, in so far as it is pertinent to the issues involved, reads as follows:
Sec. 503. Dutiable value. — Whenever imported merchandise is subject to an ad valorem rate of duty or to a duty based upon or regulated in any manner by the value thereof, the duty shall be assessed upon the value returned by the appraiser, general appraiser, or Board of General Appraisers, as the case may ■be. * * *
In the case of Ciba Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 309, T. D. 41913, this court was called upon to determine the purpose of the Congress as expressed in the provisions of sections 489 and 503, hereinbefore quoted. We concluded our discussion in that •case with the following observations:
Our understanding of the provisions of section 489 in question may be summarized as follows: “Duties shall not, however, be assessed upon an amount less than the entered value,” except under certain circumstances and conditions; .and when those circumstances and conditions prevail “the collector shall liquidate the entry in accordance with the final appraisement.” The last clause of •section 489 is significant.
There it was claimed by counsel for the importer that the language “Duties shall not, however, be assessed upon an amount less than the entered value,” contained in the quoted provisions of section 489, was intended by the Congress to relate solely to merchandise ■covered by so-called “duress” entries, and that, as the entry there involved was not°a “duress” entry, duty should have been assessed upon the final appraised value in accordance with the provisions of section 503, supra, even though the entered value was higher than the appraised value.
In the case at bar it is contended by counsel for appellant that the provisions of section 503 have no application to merchandise covered by “duress” entries. In other words, although the results desired by counsel in the two cases are just the opposite, the contention is the same; that is, that the provisions of one section should be construed without regard to the provisions of the other.
In the former case we refused to follow the suggestions of counsel for importer and held that the provisions of sections 489 and 503 were pari materia and should be considered together in order that the intention of the Congress might be given effect. Obviously, if we were right then, there is no sound reason for holding to the contrary now. Furthermore, I am of opinion that, in construing the involved provisions of section 489, the provisions of section 501 should also be ■considered.
Prior to the enactment of the Tariff Act of 1913, if the entered -value of imported merchandise was higher in any case than the final *443appraised, value, the law required that duty be assessed upon the entered value. Accordingly, if an importer entered his merchandise at a value higher than the final appraised value, he was required to pay duty upon the entered value; or if he entered it at a value less •than the final appraised value, his merchandise was assessed with additional duties. Furthermore, if an entered value was advanced •by the appraiser and an appeal to reappraisement was taken by importer, and, as was frequently the case, additional importations of similar merchandise were made from time to time, while the initial reappraisement case was pending, the importer was confronted with a dilemma; if he entered the various shipments at the value he thought was correct (assuming the value of the merchandise in the subsequent ■shipments was, or was thought to be, identical with the value of that .in the pending case) and it was determined by the appraising officers that the entered value was lower than the market value, his merchandise would be subject to additional duties; or if he entered the merchandise at the appraised value in the pending case, and it was later determined that the market value was lower, he was required, nevertheless, to pay duty upon the entered value. Naturally, the Congress heard considerable complaint from importers. So, in Paragraph I of the Tariff Act of 1913, the Congress added to the language “The duty shall not, however, be assessed in any case upon an amount less than the entered value,” which had appeared in prior tariff acts, the following:
* * * unless by direction of the Secretary of the Treasury in cases in ■which the importer certifies at the time of entry that the entered value is higher than the foreign market value and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraise ment, and the importer’s contention shall subsequently be sustained by a final ■decision on reappraisement, and it shall appear that the action of the importer •on entry was taken in good faith, after due diligence and inquiry on his part, •and the Secretary of the Treasury shall accompany his directions with a statement of his conclusions and his reasons therefor.
In the case of Mills & Gibb v. United States, 8 Ct. Cust. Appls. 31, T. D. 37164, this court was requested to construe the quoted provisions •of Paragraph I, supra, and to reverse a decision of the Secretary of the Treasury holding that the language “and the importer’s contention shall subsequently be sustained by a final decision on reappraisement,” contained in said paragraph, was intended by the Congress to mean •that the contentions of the importer in the initial or “pending” case must be wholly sustained in order to give the Secretary authority to grant relief. The court held that it did not have jurisdiction to review the decision of the Secretary of the Treasury. However, in ■disposing of the case the court took occasion to say:
In the customs administrative act of 1890 it was enacted that “the duty shall •not, however, be assessed in any case upon an amount less than the invoice or ■entered value.” (Par. 7.)
*444In the Tariff Act of 1909 it was enacted that “the'duty shall not, however, be assessed in any case upon an amount less than the entered value.” (Subsec. 7, sec. 28.)
In Paragraph I, supra, of the Tariff Act of 1913 Congress reenacted this provision of the Tariff Act of 1909, but committed to the Secretary the authority in given cases to direct an assessment of merchandise at Us reappraised value even though this he less than the entered value. [Italics mine.J
It may be argued that the views thus expressed were not necessary to a decision in the case. That may be true. Plowever, they were the views of the court at that time and were expressed with such positiveness as to indicate that but little patience would have been shown with any other proposed construction. But whether or not the pronouncement be considered obiter dictum, it would seem to be clear that there was nothing in Paragraph I, supra, to remotely indicate that the merchandise covered by “duress” entries was intended to be liquidated upon the final appraised value of the merchandise in the “pending” case. On the contrary, the merchandise covered by the “duress” entry was required to be liquidated upon its final appraised value.
It has been suggested, and this view is followed in the majority opinion, that the language “wholly or in part,” contained in section 489, was intended to permit the filing of “duress” entries in the event that such entries and the “pending” case had some, but not all, issues in common. Pursuing this reasoning, it is held that the 5 per centum Canadian sales tax should not be considered a part of the per se value of the merchandise, but that it is more in the nature of an independent item subject to isolation from the other elements of foreign value (in somewhat the same manner, I suppose, as are costs of containers and other charges and costs mentioned in section 489). From this it follows, it is said, that cases may be “similar” within the meaning of the statute — section 489 — if they have in common some issue which could be disposed of in the initial or “pending” case. As to such an issue, it is held, there is no legal necessity (it is even intimated that there is some doubt of the right to appeal) for filing an appeal from the decision of the appraiser in “duress” entry cases. However, in all cases where there may be an issue involved in the “duress” entry which is not presented in the “pending” case, and in all other “duress” entry cases, an importer must appeal from an adverse decision of the appraiser, should he desire to enforce his rights in the courts. This anomalous situation, it is said, results from an effort to give the involved provisions of section 489 a reasonable construction, taking into consideration the sections of the act pari materia. I quote from the majority opinion:
While our conclusions herein reached may not bring such perfect harmony between the statutes, which lead to ambiguity, as might be desired, the construction which we adopt is certainly more satisfying in this respect than any construction that has been suggested here.
*445And so, under this construction, the decisions of the appraiser are "final and conclusive against all parties” in some cases, unless appeals are taken, "final and conclusive” as to some issues "against all parties” in other cases, unless appealed from, and, in still other cases, without any finality or legal effect. Taking into consideration the fact that section 489 provides “that the collector shall liquidate the entry in accordance with the final appraisement,” and that the provisions of section 501 plainly and positively provide, without limitation or qualification, that the decisions of the appraiser “shall be final and conclusive upon all parties,” unless appeals are taken as therein provided, this holding seems strange indeed.
The involved language of section 489 is somewhat different from the language of Paragraph I, supra. All reference to the Secretary of the Treasury has been omitted. The language "wholly or in part” was not, in my opinion, inserted in section 489 for the purpose of dividing an appraisement case into parts, but was intended to broaden the scope of the section and to relieve an importer in a “duress” entry from paying duty on the entered value, in the event the merchandise in the “pending” case was finally appraised at less than the value returned by the local appraiser. The Congress was, of course, aware of the construction placed upon Paragraph I, supra, by the Treasury Department, holding that duties could not be assessed upon a value less than the entered value in a “duress” entry, unless the contentions of the importer in the “pending” case had been wholly sustained. For example: If the merchandise in the “pending” case had been entered at 50 cents per pound and appraised at 75 cents per pound, and the final appraised value was held to be less than 75 cents but more than 50 cents per pound, the importer’s contentions in the “pending” case had not been sustained, and no relief could be granted the importer in the “duress” entry, even though the final appraised value of the merchandise covered thereby was lower than the entered value.
The language “and the collector shall liquidate the entry in accordance with the final appraisement,” contained in section 489, was not in Paragraph I, supra. (Italics mine.)
It is contended by counsel for appellant that this provision was intended by the Congress to refer to the final appraisement in the “pending” case, and that merchandise in all “duress” entries, in the event the “pending” case is won, wholly or in part, should be assessed by the collector upon the final appraised value of the merchandise in the “pending” case.
As I understand the majority opinion, the court has not accepted this construction, but has held, without any discussion of the meaning of the quoted language, that sometimes it means one thing and sometimes another. Where there is a similar but separate issue *446common to both the “pending” case and the “duress” entry, the collector shall be controlled as to such issue or item of value by the ■final decision in the “fending” case, and as to this issue or item of value, the importer need not appeal from the decision of the appraiser in the “duress” entry case. However, as to all other issues and items of value involved in that “duress” entry, an appeal must be taken-from the decision of the appraiser, and the collector is required to assess duty upon the final appraised value of the merchandise covered' thereby. Again, if the value of the merchandise in the “pending” case is exactly the same in all respects as the value of the merchandise in the “duress” entry (just how this is to be determined, unless the merchandise is appraised and reappraised in the manner provided by section 501, supra, is not explained in the majority opinion and is somewhat obscure to me, unless of course some arrangement may be made to secure stipulations as to value), the collector is required to assess duty upon the merchandise covered, by the “duress” entry in accordance with the final appraised value of the merchandise involved in the “pending” case. And, finally, in all cases other than those coming within the two classes above mentioned the collector is required to assess duty upon the merchandise covered by the “duress” entry in accordance with its final appraised value.
It will be observed that the Congress has used the words “entry” or “entered” in the statute whenever reference is had to a “duress” entry, and that it has referred to “pending cases” by that term, or by the term “similar cases. ” Furthermore, it has applied the words “reappraisement or re-reappraisement” to “pending cases.” Why, then, should the words “entry” and “final appraisement” in the language “and the collector shall liquidate the entry in accordance with the final appraisement,” contained in the statute, be construed as relating to “pending cases”? In my opinion, those words were intended to relate to the “duress” entry and not to “pending” cases. Surely, if the Congress had intended that merchandise involved in a “duress” entry should be assessed upon the final appraised value of some other merchandise, some apt language would have been used to express such an unusual purpose.
In the case of Harry Zinberg v. United States, 16 Ct. Cust. Appls. 268, 271, T. D. 42870, this court considered the involved provisions of section 489, and, among other things, said:
The manifest purpose of the Congress in enacting the additional duties provisions in section 489, and in providing that “duties shall not, however, be assessed upon an amount less than the entered value,” was to require importers to ascertain the dutiable value of imported merchandise, and to enter it at such value. Were it not for those provisions the entire burden of ascertaining the dutiable value of imported merchandise would fall upon the officials of the-Government.
*447The only exception to the provision that duties shall not be assessed upon an amount less than the entered value is in a case where the “importer certifies at the time of entry that the entered value is higher than” the dutiable value, “and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement or re-reappraisement.” [Italics ours.] But this is not all that is required of the importer. ■ Before he is entitled to any relief under these provisions the contention of the importer in the pending case or cases must be sustained, wholly or in part, by a final decision of the court on appeal or review. More than that, it must appear that the “action of the-importer on entry was so talcen in good faith, after due diligence and inquiry on his part. ” [Italics ours.]
We also said in that case:
It must be remembered that the statute requires the collector to liquidate the “duress entries at the appraised value of the merchandise covered thereby, if the importer’s contentions in the cases pending on appeal have been sustained, wholly or in part.
Of course, it may be argued that the last-quoted statement was obiter dictum and that the court is not bound thereby; maybe so. It may be said, however, that the quoted language, aside from its positiveness, was italicised to give it added emphasis. Furthermore, like the language giving the same construction to Paragraph I of the-Tariff Act of 1913, in the Mills & Gibb case, supra, it apparently had the approval and good will of the court at the time the case was decided. But however that may be, the purpose of the statute, in my opinion, is to give importers an opportunity to avoid the entered-value provisions of section 489, as to cases therein described, and to have imported merchandise in such cases assessed for duty in accordance with the provisions of section 503, sufra, that is, upon its final aff raised value, rather than upon its entered value. As thus construed, the provisions of section 489 are harmonized with the provisions of sections 501 and 503, and a simple, understandable, and practical method of procedure is obtained.
It was the duty of the appraiser under the law to appraise the-merchandise covered by the “duress” entries. He did so. Section 501 provides that the decisions of the appraiser shall be final and conclusive against all parties unless an appeal is taken as therein provided. Appellant having failed to appeal from the decisions of the appraiser in the “duress” entry cases, it was the manifest duty of the collector to liquidate those entries, which he did, in accordance with the value returned by the appraiser.
For the reasons stated, I am of opinion that the judgment should be affirmed.
LenRoot, Judge, concurs in the above dissent.