DISSENTING OPINION
BROWN, Judge:I am constrained to dissent because, as shown by Judge Hatfield’s opinion in T. D. 49066 and the opinions below in the reappraisement case Heap. Dec. 3913 and Reap. Dec. 3613 and Reap. Dec. 3676, as well as the evidence in that case (admitted in evidence here) and the peculiar facts and circumstances of the transaction, show that deciding which value applied and fixing the correct amount of dutiable value was in this case a very touchy and difficult matter which any business man was likely to get wrong and concerning which his failure to guess right was no evidence whatever of an intention to defraud and deceive. The entry seems to be an attempt to enter on cost of production. The appraisement was on a foreign-market value basis. The single judge found United States values. The division found United States values on a different basis and the court of appeals ordered the reappraisement dismissed *146for failure of proof of cost of production when that practically had not been in dispute below.
The whole situation was very confusing and troublesome. The importing concern did its best to meet it on the advice of the appraiser who had approved some similar entries made on the same basis.
Everything in this confusing record points to the complete absence on the part of the importer of any intention to defraud the Government or to deceive the appraiser.
Eemission of automatic penalties, in the opinion of the writer, should certainly be granted here.