DISSENTING OPINION
Brown, Judge:The writer heard and saw the witnesses in this case and was much impressed by their frank and open demeanor.
This importer had been importing similar goods for ten or twelve years. He had always entered them at the invoice value, which was the price he had paid, and never before had they been advanced in value by the appraiser.
In the shipment before us he did the same thing, entering at the price paid, which was the invoiced value. In addition there was a statement on the invoice which, naturally, put him and his customs broker, who made the entry for him, off their guard, caused them to be confident the invoice value was right, so that they naturally entered at the price paid and invoice value without further inquiry. After enumerating other details the shipper’s invoice stated:
Home market value, taxes included, in no ease higher than the invoice prices.
To do that in these circumstances and after that experience is certainly no evidence whatever of an intention to defraud the Government or to deceive the appraiser. If it can be called carelessness, the Supreme Court was emphatic that mere carelessness without more was not a cause for refusing remission and remanded to this court a remission petition denied upon that ground in United States v. Fish, 268 U. S. 607. The language of Chief Justice Taft in that case cannot be too frequently quoted:
[Page 612] Upon the merits of the case, we think the Court of Customs Appeals was right and that the finding of the Board of General Appraisers did not respond to the requirement of the statute. The issue to be found by the Board was whether the importer showed by his evidence that the entry of the merchandise at a less value than that returned upon final appraisement was without any intention to defraud the revenue of the United States or to conceal or misrepresent the facts of the case or to deceive the appraiser as to the value of the merchandise. The issue presented to the Board was, “Has the importer sustained the negative in this regard?” Merely to find that the importer was careless is not a finding sufficient to justify the Board in deciding whether there should be a remission. Both the importer and the Government are entitled to a finding either that there was no intent to defraud or that the importer did not sustain his burden that there was no such intent.
It is significant that the Government in this case in lieu of filing a brief wrote as follows to the clerk:
This office does not desire to file a brief on behalf of the United States.
This indicates plainly that the Government had no reasonable grounds to present for urging the denial of remission.
The majority opinion relies on rules for remission stated by the court of appeals in the Wolf case, 13 Ct Cust. Appls. 589, T. D. 41453. Of course, they cannot further limit the rights of an importer than the Supreme Court’s rule as stated above. Even under their view, however, the importer is entitled to recover here.
*642For (1) the evidence before us shows the entire good faith of the importer and his agent, the broker, (2) there is no reasonable inference here that there were “facts or circumstances known to the petitioner when he made his entry” which would cause him to question the figures at which he was entering, or (3) that he had not made a full and candid disclosure of the little he knew.
If the court of appeals’ rule is narrower than the Supreme Court’s rule, still he complied with their rule also by every fair inference.
From every consideration the prayer of this petition for remission should be granted.
Mr. Justice Holmes in United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28, repelled a narrow view of the jurisdiction of the Court of Claims in the following language, page 32:
The argument that there is a distinction between claims “arising under” and those “founded upon” a law of the United States rests upon the inadmissible premise that the great act of justice embodied in the jurisdiction of the Court of Claims is to be construed strictly and read with an adverse eye.
Similarly here to refuse remission of penalizing additional duties, in the circumstances before us, would be to construe the beneficent purpose of section 489 strictly and to read that remedial provision with an adverse eye.