CONCURRING OPINION
Tilson, Judge:While fully concurring in the conclusion reached by my associates, I wish to express the following views which, I feel, not only support, but demand such conclusion:
In reversing the original judgment in this case and remanding the same to us for reconsideration of the issues on the record as made, the appellate court, among other things, said:
Considering the provisions of section 402 (c), supra, and the dictionary definitions of the terms “Wholesale” and “retail,” 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.” Jenkins Brothers v. United States, supra. [Italics ours.]
Further in its decision the appellate court stated:
There may be instances where sales by manufacturers to retailers, for resale, are not “in the ordinary course of trade,” within the purview of section 402 (c), supra. See United States v. A. W. Faber, Inc., 21 C. C. P. A. (Customs) 290, 293, T. D. 46819. However we are not here confronted with such a situation. [Italics ours.]
Again referring to the decision of the appellate court:
In the instant case, we are called upon to determine whether, as a matter of law, the holding the Second Division of the Customs Court that the sales of gauge *794glasses in England by the manufacturers thereof to retailers, for resale were not sales in wholesale quantities in the ordinary course of trade, is supported by any substantial evidence of record. If it is, the judgment should be affirmed. If it is not, the judgment should be reversed.
In view of the mandate of the appellate court remanding this case for reconsideration of the issues on the record as made, counsel for the respective parties have not been asked for additional briefs, but we have proceeded to a reconsideration of the issues on the record as made, without the addition thereto of a single word.
From a careful reading of the appellate court’s decision it is quite clear that our decision was reversed for the sole reason that we did not find and hold that certain sales to retailers, for resale, were sales in wholesale quantities, and then consider said sales together with other sales in wholesale quantities in “determining what are usual wholesale quantities.”
Therefore, in reconsidering this case on the record as made, we should first consider and determine whether or not we are permitted, under the law and the decisions of the appellate court, to consider the sales above referred to together with other sales in wholesale quantities in determining what are usual wholesale quantities. If, under the law, we are not permitted to consider such sales, then it would appear that our original judgment should have been affirmed. If, under the law, we are permitted and should have considered such sales, then it would appear that our judgment was correctly reversed. The sales particularly referred to above were in the form of transcripts of sales made by the exporter, attached to Collective Exhibits 1 and 2. There is also a similar transcript of sales attached to Collective Exhibit 5.
In holding that sales in the ordinary course of trade to retailers, for resale, are sales in wholesale quantities, and should be considered together with other sales in wholesale quantities in determining what are usual wholesale quantities, the appellate court particularly limited such sales to those where the other essentials in the statutory definition of foreign value were present. What are “the other essentials in the statutory definition of foreign value” which must be present before any sales can become sales in wholesale quantities to be considered together with other sales in wholesale quantities in determining what are usual wholesale quantities? Without attempting to define all the “other essentials in the statutory definition of foreign value” before any sale becomes a wholesale quantity, suffice it to say here that one of those essentials is that the merchandise must be jreely offered to all purchasers. Where there is a restriction that the merchandise must be resold at a certain price, or where a certain quantity must be purchased in order to get that price, this would be a restricted sale and a restricted market, and, therefore, the merchandise would not be *795freely offered to all purchasers. Goodyear Tire & Rubber Co. v. United States, 11 Ct. Cust. Appls. 351, T. D. 39158.
If the status of tbe buyer with the seller determines the price to be paid, or if it is a case of bargaining between the purchaser and seller in arriving at the price, it cannot be said that the merchandise is freely offered to all purchasers. Where the status of the buyer with the seller determines the price to be paid and the price is arrived at by a method of bargaining between the purchaser and seller, such sales cannot be considered in determining what constitutes a wholesale quantity of the merchandise. In such a case one of the essentials in the statutory definition of foreign value, instead of being present, is notably absent. United States v. International Forwarding Co., 13 Ct. Cust. Appls. 579, T. D. 41436.
Where merchandise is offered for sale by means of a pricelist and there is evidence, in the form of lists of sales, showing that the pricelist is not followed in making sales of the merchandise but that it is sold in the majority of instances at prices different from those shown in the pricelist, the pricelist becomes of little-if any value and the evidence of the price at which the merchandise was actually sold must be accepted as the value of, or the price at which, the merchandise was sold. The statute is not satisfied where it is only shown that goods are sold in the ordinary course of trade to retailers, for resale, but in addition, as stated by the appellate court, the other essentials in the statutory definition of foreign value must be present, and one of those essentials is that the merchandise must be freely offered for sale to all purchasers.
In conformity with the mandate of the appellate court in this case, I have reexamined and reconsidered the transcripts of sales herein-; above referred to and find indisputable evidence therein that these sales were made by bargaining between the seller and the purchaser, As an illustration, the sale of Hercules gauge glasses under date of September 27 on page 1 of Collective Exhibit 2, where a sale of 4 feet is shown at 2 shillings net should be considered, and likewise on page 12 of said exhibit under date of October 5, where the sale of 4 feet of said gauge glasses is shown at a price of 1 shilling, 3 pence, less a discount of 65 per centum. Again on page 16 of said exhibit there is shown a sale of 4 feet of said gauge glasses at a price of only 6 pence, less a discount of 80 per centum.
On page 2 of said exhibit is shown a sale of 14 feet of said gauge glasses at 6 shillings, 7 pence, less 20 per centum discount, aDd on page 8 of said exhibit is shown a sale of the same amount at 5 shillings, 8 pence, less a discount of 50 per centum. On page 1 of said exhibit is shown a sale of 11 feet 6 inches of said gauge glasses at 1 pound, 4 shillings, net, while on page 8 is shown a sale of the exact quantity at 3 shillings, 6 peace, less a discount of 50 per centum, and on page 13 of *796said exhibit is shown a sale of 11 feet 4% inches at only 2 shillings, 5 pence, less a discount of 70 per centum. On page 1 of said exhibit is shown a sale of 1 foot, 6 inches, at 2 shillings, net; on page 6 is shown a sale of the exact amount at 9 shillings, less 40 per centum, another sale of the same amount at 2 shillings, less 40 per centum. On page 1 of said report is shown a sale of 17 feet, 9 inches, at 10 shillings, 6 pence,, net, and on page 8 is shown two sales of the exact same amount, one at 7 shillings, 3 pence, less 50 per centum, and the other at 5 shillings, 3 pence, less 50 per centum. It is wmrthy of note that one of these sales is at 10 shillings, 6 pence, net, and another at 5 shillings, 3 pence, less 50 per centum. On page 2 is shown a sale of 44 feet, 6 inches, at 1 pound, 9 shillings, 4 pence, less 20 per centum, and on page 3 a sale of 44 feet at 19 shillings, 3 pence, less 25 per centum discount, another sale of 48 feet at 1 pound, 8 shillings, 11 pence, less 25 per centum discount, on page 8 a sale of 48 feet at 13 shillings, 3 pence, less 50 per centum discount, and on page 16 a sale of 48 feet at 6 shillings, less 80 per centum discount. On page 16 is shown a sale of 102 feet at 1 pound, less 80 per centum, and another sale of 201 feet at 1 pound, 12 shillings, less 80 per centum. On page 15 is shown a sale of 210 feet at 3 pounds, less 80 per centum. On page 13 is shown a sale of 210 feet at 1 pound, 10 shillings, 11 pence, less 70 per centum. On page 11 is shown two sales of 204 feet each, one at 2 pounds, 7 shillings, 7 pence, less 60 per centum, and the other at 7 pounds, 10 shillings, less 60 per centum, and on page 16 is shown another sale of 240 feet at 1 pound, 7 shillings, less 80 per centum.
The above examples have been picked at random and without selection from the transcript of sales attached to Collective Exhibit 1, and represent but a few of the examples of the prices arrived at by bargaining. An examination and comparison of the other hundreds of items shown on said exhibit would only serve to prolong this decision. An examination of the entire transcript shows that the examples set out above have been fairly selected and is sufficient to establish that the sale of all the merchandise shown on said transcript was arrived at by the method of bargaining between the seller and the buyer.
An examination and comparison of the sales in the transcript attached to Collective Exhibit 2, covering Eureka gauge glasses, shows a result quite similar to the examples hereinbefore detailed with reference to Hercules gauge glasses. The transcripts of sales of Hercules and Eureka gauge glasses attached to Collective Exhibit 5, show sales of the merchandise quite in line with the sales shown in the transcript of sales attached to Collective Exhibits 1 and 2. An examination and comparison of the sales in these two transcripts also shows a result quite similar to the examples hereinbefore detailed with reference to the transcript attached to Collective Exhibit 1. *797It therefore appears that the large number of sales, hereinbefore referred to, all based upon the status of the buyer with the manufacturer, the quantity of merchandise purchased, and after bargaining between the purchaser and seller, is the very best evidence “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,” and were not free offers for sale to any one.
As further evidence of the fact that the status of the buyer with the seller, and the quantity of merchandise purchased, controls the prices paid therefor, and that the prices are arrived at by bargaining between the purchaser and seller, we quote the following from Collective Exhibit 3:
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-seller. [Italics ours.]
The evidence above set out completely refutes any holding that retailers and wholesalers, as well as all other purchasers, who purchase in quantities of less than 1,000 feet of the Eureka quality gauge glasses, and less than 500 feet of the Hercules quality gauge glasses, pay the manufacturer’s list price, less varying discounts, depending upon the quantities purchased. If we should accept the pricelist in evidence at its face value without considering any other evidence bearing on the price of the merchandise, it might be said that both qualities of gauge glasses are freely offered for sale in England to retailers and wholesalers, as well as all other purchasers in specified quantities and at set prices. However, under the law, it is our duty to weigh all the evidence before us and then determine what weight should be given thereto.
Having done this, we are inclined to give more weight to the list of actual sales before us than to the pricelist, particularly when the evidence shows that few, if any, sales were ever made in accordance therewith either as to prices or quantities, and that a large number, if not all, of the sales consummated were at prices and in quantities entirely different from those shown in said pricelist. We feel, and so hold, that a pricelist, in accordance with which few, if any, sales are ever made, either as to quantities or prices, is not entitled to the same consideration and weight as a large number of actual sales, few, if any, of which correspond with the pricelist, either as to prices or quantities.
It therefore clearly appears from the record before us that retailers and wholesalers, as well as all other purchasers, purchasing in quantities of less than 1,000 feet of Eureka quality gauge glasses and less than 500 feet of the Hercules quality gauge glasses, do not pay the manu*798facturer’s list price less varying discounts, depending upon the quantities purchased, and that both qualities of said gauge glasses are not sold in England to such purchasers, in such quantities, and at such prices. This holding is amply supported by the weight of the evidence hereinbefore set out, as well as by all the evidence in the record before us, which we have not failed to consider and weigh.
Since the sales of this merchandise, hereinbefore referred to, are not the market values or the prices at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale to all purchasers in the principal markets of the country from which exported, such sales can have no weight as evidence in determining what constitutes a usual wholesale quantity of the merchandise. In order to be used for such purpose it would have to be shown that such sales are the market values or the prices at the time of exportation of such merchandise to the United States, at which such or similar merchandise was freely offered for sale to all purchasers in the principal markets of England. This was the holding of the appellate court in the case of Goldmark v. United States, 22 C. C. P. A. 358, T. D. 47378, from which we quote the following:
The price to be accepted as an element of foreign value must be a price at which such or similar mechandise, at the time of exportation of the merchandise involved, is freely offered for sale to all purchasers in the principal markets in England in the usual wholesale quantities and in the ordinary course of trade.
On the same point, we quote the following from the case of United States v. Malhame, 19 C. C. P. A. 164, T. D. 45276:
The court below is quite correct in the statement that as a matter of law a single sale might establish an export value. But, in order to do so, it must appear from proof that such a sale accords with a free offering at that price to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States * * *.
In the instant case the prices shown in the list of sales attached to the two affidavits and the special agent’s report are not prices at which such or similar merchandise, at the time of exportation of the merchandise involved, was freely offered for sale to all purchasers in the principal markets of England, and therefore such prices cannot be accepted as an element of the foreign value of the merchandise. Neither can such pricelists be accepted as having any value in destroying the weight to be given to other evidence in this record. The pricelist is completely disproved and discredited by other evidence in the record before us.
It will thus be seen that far from contradicting any statements made in the affidavits and in the testimony of Mr. Sobel as to what constitute wholesale quantities, and thereby making said statements mere conclusions of the witnesses, which can have no weight with the court in *799determining what is a wholesale quantity, the lists of sales attached to said affidavits and the special agent’s report are in complete accord with, and fully support said statements, that a wholesale quantity of Eureka quality gauge glasses is 1,000 feet or more, and that 500 feet or more of Hercules quality gauge glasses is a wholesale quantity.
Certainly the appellate court did not hold, nor do we think it intended to hold, in the Jenkins case, supra, that a statement in an affidavit that 1,000 feet was a wholesale quantity, supported by 100 invoices attached showing 100 sales of 1,000 feet each, can have no weight as a statement of fact, but becomes merely a conclusion of the witness which can have no weight with the court in determining what is a wholesale quantity. In such a case such a statement would stand as a statement of fact, supported by 100 invoices of actual sales, and would not become a mere conclusion of the witness simply because it was supported by evidence of 100 actual sales. On the other hand a statement in an affidavit, standing alone and without the supporting sales, must be regarded as some substantial evidence of the fact, particularly where it is shown that the fact is within the affiant’s knowledge, and his qualifications are unquestionable.
Under no circumstances can it be held that the list of sales in this case in any way contradicts the statements in the affidavits, because the evidence shows that in making all of these sales the status of the buyer with the manufacturer, together with the quantities of merchandise purchased determines the price to be paid, and it is usually a case of bargaining between the purchaser and seller. If it were shown that all of these sales were restricted sales, then certainly they could not be used to discredit the statement of the witness, and render the same nothing more than a mere conclusion of the witness. It is my conclusion that the lists of sales in this case are equally as valueless to discredit the statement of the witness as if each of them were proven to be a restricted sale.
Sales of merchandise made in accordance with the statute are valuable evidence in establishing proper dutiable value of merchandise. Sales of merchandise not made in accordance with the statute, that is sales where all the essentials in the statutory definition of foreign value are not present, neither prove nor disprove anything. Sales of merchandise made in accordance with the statute are valuable in establishing a wholesale quantity of merchandise. Sales of merchandise not made in accordance with the statute neither prove nor disprove what is a wholesale quantity. Neither can such latter sales be used either to support or in any way disprove, contradict, discredit or impeach the statement of any thoroughly competent and highly qualified witness, when the evidence shows that such statements are well within the knowledge of such witness.
*800I am not arguing, and do not wish to be understood as claiming, that sales by a manufacturer or wholesaler to a retailer, for resale,, may not be considered in determining the usual wholesale quantity of merchandise, but I do insist, and in this I feel I am fully supported by the decision of the appellate court remanding this case, that before such sales may be considered for said purpose, they must be shown to be sales made in accordance with the statute. In other words, they must be sales wherein “the other essentials in the statutory definition of foreign value being (are) present.” [Parentheses ours.]
The remand in this case was for a reconsideration of the issues on the record as made and in accordance with the views therein expressed. This is far from a remand for a determination of a wholesale quantity based upon the sales in the record. One of the views expressed in the remand was that “the other essentials in the statutory definition of foreign value” must be present before this or any other court could consider sales in the ordinary course of trade to retailers, for resale, in determining what are usual wholesale quantities.
Had all these sales in this case been made in a restricted market, and we overlooked that fact, and used said sales in finding a usual wholesale quantity, certain it is that, when this fact was pointed out on appeal, our decision would be promptly and correctly reversed. Likewise in this case if we should use these sales, not made in accordance with the statute, in finding a usual wholesale quantity, our decision would be erroneous. Accordingly, in considering all these sales, in compliance with the remand, it is found that the same neither discredit nor disprove the statements of the witnesses as to what is a wholesale quantity, nor do they establish what is a wholesale quantity, nor do they lend any support to the contention of the appellant that a wholesale quantity is 12 dozen feet.
Proceeding further to a consideration of what is the foreign-market value of this merchandise, which involves first the determination of what constitutes a wholesale quantity, we must determine whether there is any competent evidence in the record as made, aside from the three lists of sales and the pricelist hereinbefore disposed of, upon which to base a finding of a wholesale quantity.
Taking first the affidavit of Joseph L. Tomey, it is found that he is the managing director of the exporting company, having served in that capacity for twenty years; that as such managing director, he supervises the general business of the company and participates in the formulation of and directs the sales policy of said company; that his company sells Eureka quality gauge glasses with cut ends and with fused ends for consumption in the home market in both retail and wholesale quantities and for export throughout the world; that his company has for more than five years freely offered for sale and now freely offers for sale Eureka quality gauge glasses in England to all *801purchasers in the ordinary course of trade and in wholesale quantities ■of 1,000 feet or more, and has been and is ready and willing to sell to any and all purchasers Eureka quality gauge glasses identical to those shipped to the appellee herein, in quantities of 1,000 feet or more, at prices equivalent to those granted to the appellee herein.
With reference to the Hercules quality gauge glasses this same witness stated in substance that his company sells Hercules quality gauge glasses for consumption in the home market and for export throughout the world; that his company has for more than five years freely offered for sale and now freely offers for sale Hercules quality gauge glasses in England to all purchasers in the ordinary course of trade, and in wholesale quantities of 500 feet or more and has been and is ready and willing to sell to any and all purchasers Hercules quality gauge glasses identical to those shipped to the appellee herein at prices equivalent to those granted to the appellee herein in quantities of 500 feet or more.
We also have the testimony of Isidore Sobel, which in every material detail supports the evidence given by Mr. Tomey. Mr. Sobel is the vice president of the importer herein; has been connected with the firm for thirty-eight years, and has been vice president for twenty-four years; his duties include the purchase and sale of merchandise, for over thirty years, including gauge glass tubes; he personally had to do with the purchase of the instant merchandise, and swears that the invoice prices of both these qualities are the prices he paid for the same, and that said prices still obtain. This witness stated that he received 80 per centum discount on Eureka quality because that is the wholesale market price of the manufacturer both at home and abroad to all purchasers of this merchandise in quantities of 1,000 feet or more, and that he was allowed 75 per centum and 10 per centum discount from the list price when he purchased Hercules in quantities of 500 feet or more, and that this is the wholesale market price of the manufacturer both at home and abroad. This witness also stated that 1,000 feet or more of Eureka quality gauge glasses and 500 feet or more of Hercules quality gauge glasses constituted wholesale quantities thereof. His qualifications for making such statements were ample and he was not shaken on cross-examination.
With reference to the weight to be given the above testimony, particularly as establishing what constitutes a wholesale quantity, I quote the following from the case of Jenkins Brothers v. United States, 25 C. C. P. A. 90, T. D. 49093:
* * * While a statement that a given quantity is or is not a usual wholesale quantity might in some circumstances be regarded as some substantial evidence of the fact, such a statement can have no weight as a statement of fact when all of the facts upon which the statement is made are disclosed. It then becomes merely a conclusion of the witness, which can have no weight with the court in determining what is a usual- wholesale quantity.
*802If the bolding of the appellate court quoted above means anything, it means that under certain circumstances a statement by a properly qualified witness that a given quantity is or is not a wholesale quantity may be regarded as substantial evidence of such fact. The qualifications of the two witnesses whose testimony is hereinabove set out are the highest and cannot be questioned by anyone. Their testimony is no longer discredited by the lists of sales showing a state of facts different to those testified to with reference to a wholesale quantity, for the reason it has been shown that said sales are not competent evidence upon which to base a finding of wholesale quantity, and are no evidence of what constitutes a wholesale quantity. The testimony of these two witnesses, therefore, stands without contradiction as to what constitutes a wholesale quantity.
On the question of whether or not it is proper and legal for this court and the appellate court to consider statements contained in affidavits admitted in evidence in a reappraisement case, I quote the following from the case of United States v. Wiener, 15 Ct. Cust. Appls. 428:
We think that there is hut one question before us which requires decision: Is there any substantial evidence in the record to support the judgment of the court below?
The testimony of Walter Peltzer was introduced in the form of an affidavit. He stated that, “by reason of his activities” for 15 years “as director of said corporation (the manufacturer and exporter of the involved merchandise) deponent is in direct touch with the markets in all-silk erect pile velvets and that such velvets are not offered in the markets of Germany and that to the best of deponent’s knowledge and belief there is not sold or freely offered for sale, either for home consumption in Germany or for export to the United States, a quality of velvet comparable to No. 8938 by other manufacturers in Germany.” [Italics not quoted.] He stated also that his company made the involved merchandise for, and sold it exclusively to, the appellee. This testimony was given by a man who had been a director of the exporting company for 15 years and who was in direct touch with the German market. Because of his interest and opportunity for observing and acquiring knowledge of the facts, he testified as one having such knowledge; and, while a portion of his testimony is “to the best of his knowledge and belief,” the circumstances were such, probably, as to afford no more practical method of proving the facts in issue. Surely this testimony, since it meets the issues squarely, should be considered as having substantial probative force. The question of its weight was for the consideration of the court below. It accepted the testimony as having greater weight than that of witnesses who testified for the Government. We have no power to reverse the judgment based upon this finding, even if we were so disposed. We hold, therefore, that there is some substantial evidence to support the findings of the court below, and that the merchandise is dutiable at its United States value. [First and last italics mine. ]
The weight of the evidence establishes that in the case of Eureka quality gauge glasses when sold in quantities of 1,000 feet or more, which, as we have found, is a wholesale quantity, the price at which the article is sold does not vary according to quantities sold, over and above that amount, and that in the case of Hercules quality gauge glasses when sold in quantities of 500 feet or more, which, as we have *803found, is a wholesale quantity, the price at which the article is sold does not vary according to quantities sold, over and above that amount. It is therefore found unnecessary to determine what constitutes a usual wholesale quantity, and as authority for such finding cite the following from the case of Jenkinsr Bothers v. United States, sufra:
Of course, where the price at which an article is sold does not vary according to quantities sold, no question of usual wholesale quantity can arise * * *.
In this case it is immaterial whether the amount be 1,000 feet or 1,000,000 feet in the case of Eureka, the price remains the same, and in the case of Hercules it is immaterial whether the quantity be 500 feet or 1,000,000 feet, the price remains the same.
There is no dispute between the respective parties as to the per se prices of the involved merchandise, the only disagreement between them being as to the amount of discounts which should be allowed from the list prices. Considering the special agent’s report dated January 17, 1934, there is found the following with reference to applicable discounts:
DISCOUNTS: "Eureka” — 10%10%10% (Long and short lengths)
“Hercules” — 75%10% “ “ “
% * * ijt * * *
The above discounts have been in effect for the past three years.
As applicable at this point, I quote the following from the case of United States v. Sabin, 12 Ct. Cust. Appls. 520, T. D. 40731:
The price paid for the merchandise imported as shown by the invoice was some evidence of market value. Lloyd Co. v. United States (9 Ct. Cust. Appls., 280, 283; T. D. 38217); United States v. Bloomingdale (10 Ct. Cust. Appls., 149-154; T. D. 39400). In the absence of evidence to the contrary, it must be presumed that the sale price of the goods included the tax paid at the source. No evidence was submitted by the Government showing or tending to show that the invoice price did not include the sales tax or that the discounts claimed were not regularly allowed. We must consequently hold that the finding of Board 1 that such discounts were allowed and that the entered value was the market value of the importations was warranted by the facts disclosed to it by the record on appeal from the decision of the single general appraiser.
With reference to the discounts of 10 per centum, 10 per centum, and 10 per centum shown by the special agent as applicable to Eureka quality gauge glasses, Mr. Sobel explained this at the trial as follows:
Our invoices, the unit price is based on so much per dozen feet less the three 10 discounts. Abroad they have a printed price list on which they allow certain specific discounts. It is quite annoying to be obliged to figure the list price less the discounts. The method we have adopted for invoicing or rather the factory have 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.
This explanation of the discounts of 10 per centum, 10 per centum, and 10 per centum being the exact equivalent to the prices shown on the invoices in this case stands without contradiction.
*804After thoroughly and carefully considering all the evidence in the record as made, and in accordance with the remand to this court, I find from the weight of the evidence that the discounts applicable to the Hercules quality gauge glasses when sold in wholesale quantities of 500 feet or more are 75 per centum less 10 per centum, less 2% per centum for cash, and that the discounts allowed and applicable to the Eureka quality gauge glasses when sold in wholesale quantities of 1,000 feet or more, are 80 per centum, less 2% per centum for cash.
While I have specifically referred to and quoted from different parts of the record, I wish it distinctly understood that my findings and conclusions are not based upon a consideration of such evidence alone. I have not overlooked the other evidence in this record or failed to give careful consideration and proper weight to any of the evidence. I have particularly and carefully considered and weighed the records of sales above referred to, as well as all other evidence, in the light of the fact that this court and this court alone is the sole judge of the-weight to be given thereto, the appellate court having no jurisdiction to weigh the evidence, its jurisdiction being confined exclusively to passing on any question of law involved (United States v. Rodier, 23 C. C. P. A. 336, T. D. 48196; United States v. Kleberg, 25 C. C. P. A. 142, T. D. 49256; United States v. Allenby, 20 C. C. P. A. 80, T. D. 45703, and United States v. Kraft Phenix, 26 C. C. P. A 224, C. A. D. 21, decided November 28, 1938) and, after having so reviewed, reconsidered and reweighed all of the evidence in this case as made, in the light of the decision of the appellate court remanding this case to us, and upon the weight of the evidence, I concur in each of the findings of fact and conclusions of law made by my associates.