CONCURRING OPINION
Keefe, Judge:The writer hereof was designated to sit as a member of the First Division for the purpose of hearing oral argument and participating in the decision of this application for review of the decision and judgment of the trial court dismissing the appeal to re-*943appraisement herein. The case was well presented on oral argument and in written briefs. Ordinarily, in a like situation, I would-be inclined to sign the opinion of the member of the court with whom I am in full accord or concur in the result without approving the language thereof. Here, however, I desire to express my view in reference to the situation before us.
I am in accord with the decision of the trial court holding that the imported shoes are not like or similar to the American-made shoe and that they do not enter into competition therewith, and that therefore appraisement cannot be made on the basis of the American selling price. I am also in accord with the lower court in holding that under the evidence it is not shown which foreign value should be applied to the merchandise, that is to say, whether the merchandise is dutiable upon the basis of the foreign value for home consumption or the foreign value for export to the United States. In fact, I am in doubt that there is an export value that may be legally applied to the merchandise such as we have before us here. It is also quite true, as stated by the trial court, that there is an absence of proof of the usual wholesale quantities of the merchandise, but I consider the requirement of such proof in the peculiar circumstances of this case to be wholly technical. However, I am unable to concur with the judgment dismissing the appeal to reappraisement and thereby, in effect, establishing a value which the trial court had declared to be wholly erroneous. Having held the value found by the appraiser to be based upon a shoe which is not competitive, and in my opinion, therefore erroneous, it would appear to me that the trial court would still be confronted with a case in which the merchandise was before it for appraisement and that the single judge cannot avoid his duty to find value by dismissing the appeal. If he is unable from the evidence before him to find a value that may be legally used as the basis of duty, he should redocket the case for further evidence.
The law is well established by decisions of this court and our appellate court as to the burden of proof necessary to establish the essential elements of value. Although I do not countenance the “piece-meal” trial of a lawsuit, nor carelessness upon the part of counsel in the presentation of their cases, I am of the opinion that in order to adhere to the statute in the finding of value, where the presumption of correctness of the appraiser’s finding has been destroyed, it is our duty to exhaust all means to find value, even to restoring the case to the docket. Certainly had the trial court followed the action of the appraiser and found the value to be based upon the American selling price, we would have held such action reversible error. Are we now to re-establish that wrongful value by dismissal of the appeal? As I see it, when the basis upon which the value has been found by the appraiser has been established to be wholly erroneous, we still have the merchandise *944before us on which, no legal dutiable value has been found. In such a situation we cannot escape our duty under the statute by dismissing the appeal and leaving the legal value undetermined, particularly when by restoring the case to the docket it is apparent that such a value exists and may be found.
Ever since the pronouncement of the doctrine of dismissal by our appellate court in appeals to reappraisement before a single judge and upon review by appellate divisions, we are constantly confronted with motions to dismiss appeals. The evident purpose in making these motions to dismiss is to create the technical effect of affirming the value found by the appraiser.
As I view the statute, when an appeal to reappraisement is properly before a single judge, he is directed by section 501 to determine the value of the merchandise. That direction is mandatory. It is not changed by the provision of the same section placing the burden, of proof upon the party challenging the correctness of the appraiser’s finding of value, commonly known as the presumption of correctness. If the challenging party fails to overcome the presumption of correctness of the appraiser’s finding, it is the duty of the trial court so to state and find that value. While the same effect is obtained by a dismissal of the appeal it is not a finding of value according to the statute.
Congress enacted a simple process designed to enable importers to establish a value upon which merchandise may be appraised. In order further to simplify the proceedings it relaxed the rules of evidence and provided for the admission in evidence of pricelists, catalogs, reports or depositions of consuls, customs agents, collectors, appraisers, assistant appraisers, examiners, and certified copies of official documents. Because of the simplified procedure to enable the court to find value, it would seem to me that a motion to dismiss should be entertained only upon grounds of lack of jurisdiction because of defects in appeals. In all other situations the trial court should either find a value from the evidence before it or uphold the value found by the appraiser upon the ground of the presumption of correctness attaching to his finding thereof.
The language of section 501 is clear and unambiguous. There the trial court is directed to determine the value of the merchandise. The appellate division is directed to affirm, reverse, or modify the decision of the single judge or remand the case to the single judge for further proceedings. I cannot believe that the appellate court in making general assertions that the appeals might well have been dismissed had in mind that such motions should be entertained by the lower courts under the conditions existing in the case now before us, or that their statements would be construed as applicable to reappraisements in such a manner that the statutory direction to find value under the *945provisions of the Tariff Act of 1930 could be avoided by a dismissal of the appeal.
An examination of the cases so frequently cited as authority for the dismissal of appeals convinces me that the appellate court in none of these cases had a situation before it similar to that confronting us here. This troublesome question first appears in the case of United States v. Vandegrift, 16 Ct. Cust. Appls. 398, T. D. 43120. There, wool cloth samples were appraised upon the basis of the cost of production. The evidence established that there was neither a foreign, export nor United States value for such merchandise and it was further established that the appraiser, although having all the elements before him upon which the cost of production could be found, failed to find the cost of producing the samples. In its opinion the court stated as follows:
Under such circumstances the single justice might well have dismissed the appeal, upon the motion of either party or upon his own motion. In such event the case would have stood as if no appeal had been taken and the appraisement made by the local appraiser would again have become vital and effective.
Contrary to the foregoing statement, however, the court held that — •
to the end that the parties may again present their cases in the light of the suggestions herein made by us, the judgment of the court below is reversed and the cause is remanded, with directions to remand the same to the single justice for a new trial.
Upon the remand the trial judge found that there was no evidence of foreign or export value, cost of production or United States value of the merchandise under consideration or of similar merchandise, and dismissed the appeals. The importers appealed therefrom to the appellate division which reversed the judgment of the lower court and held that the merchandise had no commercial value and, for that reason, had no dutiable value upon which duty might be assessed. From the division judgment the Government appealed. See United States v. Vandegrift, 18 C. C. P. A. 356, T. D. 44613. Upon appeal the court found that the evidence introduced by the importer was not sufficient from which to determine the foreign, export, or United States value, or the cost of production, and stated as follows:
It would seem to us, under this record, that the proper value for the appraiser to have found, in the absence of the existence of any other value, was the cost of production. The appraiser appraised the goods as was his right and duty. If the Government or the importer was dissatisfied with this value, they had the right to appeal to reappraisement and introduce evidence of a different statutory value. Their failure to do so leaves in effect the appraisement made by the local appraiser. [Italics not quoted.] United States v. Vandegrift & Co., supra.
The foregoing illustrates the difference between the Vandegrift case, supra, and the instant case before us. There the appraiser found the value of the goods, as was his right and duty, upon the basis of the *946cost of production in the absence of any other statutory value. Ample opportunity was afforded the importers to establish not only that there was another statutory value but that the cost of production found by the appraiser was not correct. The importer failed to establish any other value and also failed to prove that the cost of production found by the appraiser did not represent the actual cost of production. Consequently, it left the value found by the appraiser, to wit, the so-called cost of production, as the only lawful value before the court. The appraiser therefore rightfully was determining the legal value for that class of merchandise. If he erred in the price thereof, it must stand unless disproved. In the case now before us the appraiser found the American selling price of a competitive article under the provisions of section 336 upon which to base the duty applicable to the imported merchandise. The court finding that there was no competitive article clearly shows that the appraised value upon such a basis is wholly erroneous and the merchandise is in the same position as though it never had been appraised. Under the law the court may not remand the case to the appraiser for a proper appraisement, but is required to find a value that may be used as the basis of duty. In the one case a legal appraisement had been made, although it might have been incorrect because of the failure of the appraiser to use the proper statutory method in finding the cost of production. In the instant case the appraiser erred in using an article that was not competitive nor similar to the imported article in fixing the American selling price, and also erred in adopting the price of such article as the value of the imported merchandise.
The Vandegvijt decision was followed by other decisions of our appellate court, to wit: Johnson v. United States, 17 C. C. P. A. 107, T. D. 43432; Meadows v. United States, 17 C. C. P. A. 36, T. D. 43324; United States v. Malhame, 19 C. C. P. A. 164, T. D. 45276; United States v. Downing, 20 C. C. P. A. 251, T. D. 46057; and Merck v. United States, 20 C. C. P. A. 413, T. D. 46249, in all of which the subject of dismissal of appeals to reappraisement was discussed. In almost all of the cited cases, however, the real question before the court was the burden of proof or the importer’s failure to establish not only that the value found by the appraiser was incorrect, but that the value claimed was the value of the merchandise. Even where the court expresses the opinion that the trial court might well have dismissed the appeals, I note that the appellate court in nearly every one of these cases, for one reason or another, remanded the cases to be remanded to the trial court for a new trial to determine the value of the merchandise.
In the case of United States v. Woolworth, 22 C. C. P. A. 184, T. D. 47126, arising under the Tariff Act of 1930, the court had before it a situation where the appraiser had illegally' appraised packing charges *947and added the value thei’eof to the per se value of the merchandise to equal the dutiable value thereof. An appellate division of this court had declared the appraisement illegal and void and dismissed the appeals. Confronted with a situation where the appraiser had made an appraisement which the appellate division of this court had declared to be null and void and where the appeals to reappraisement had been dismissed, notwithstanding the finding of an erroneous appraisement, such as is before us here, the appellate court laid down the procedure to be followed by the trial court in determining the value of merchandise coming before it on reappraisement in the following language:
Under the circumstances of this case, should the single judge, after finding the appraisement erroneous or illegal, have proceeded, as he did proceed, to find dutiable value? If not, what should he have done?
It seems to have been the view of the appellate division in this case that instead of finding the dutiable value the single judge should, on the ground of the appraisement being invalid, have dismissed the appeal — at least that is what the appellate division itself appears to have done. Is this the correct procedure?
The routine provided by the statute as to appeals in reappraisement proceedings is that, when the appraisement of the local appraiser is questioned by either the Collector of Customs or the importer, an appeal is taken, which appeal is transmitted to the United States Customs Court, together with the entry and accompanying papers. The appeal is then assigned, in the language of the statute, “to one of the judges, who shall, after affording the parties an opportunity to be heard, determine the value of the merchandise.’’
Surely the quoted language is clear and virtually interprets itself.
Before this one judge, or as we have been accustomed to express it, before the single judge sitting in reappraisement, various kinds of evidence may be admitted upon questions of fact, and after argument if same be desired by any of the interested parties, the judge is required to “render his decision in writing together with a statement of the reasons therefor and of the facts on which the decision is based.”
His “decision” upon what?
One specific thing which the statute says he shall do, in such proceedings, is “determine the value of the merchandise.’’
Under the Tariff Act of 1930 the value which the local appraiser found is made presumptively, correct, but-this presumption, like all other legal presumptions, is just that and nothing more. If the appraisement he defective for a purely legal reason, or if the evidence shows errors of fact, or if there he errors of hoth law and fact, obviously it is the duty of the single fudge so to declare. But this is only a part of the requirement of the statute. Appraisement lies at the very basis of customs administration, and surely it is the clear intent of Congress that an appraisement shall be had as speedily and with as little difficulty as may be possible.
Nothing practical is accomplished by simply upsetting the valuation of the local appraiser and stopping there. Certainly every intendment of the statute is to avoid any such impasse. Hence the requirement that the single j udge shall determine value. As we view it, that is the fundamental object of the jurisdiction conferred by the statute.
* * * ⅝ single judge simply proceeds to find value, and it is his decision which becomes the basis of all subsequent proceedings. [Italics not quoted.]
*948The appellate court also commented specifically upon the authority of this court to find the value of the merchandise when “all the elements of appraisement” were present, stating that:
We think that no case, in which appraisement is required and in which the elements are present that enable appraisement, should be left suspended in mid-air to the detriment, if not the complete paralysis, of administration.
The court further clarified the term “elements of appraisement” by citing concrete examples of the appraisement of vessels, and the appraisement of merchandise where 10 per centum of the shipment had not been examined. In the first instance, vessels, not being-merchandise, were not subject to appraisement, and in the second, the statute had not been followed in making an adequate examination of the shipment. In such cases a motion to dismiss should be sustained because of the absence of the elements of appraisement, but the effect of such dismissal would not validate the appraiser’s action. In section 402 the various statutory values of merchandise are enumerated. In defining such values the statute requires certain necessary elements to be taken into consideration. In finding one of the statutory values to be the value of imported merchandise, the court is therefore required to consider whether these elements of value are present. If the plaintiff fails to prove all of the elements of value, in my opinion, the reappraisement is not dismissible as in cases where the elements of appraisement are lacking, but, unless said elements of value are admitted not to be in issue, the plaintiff is required to make full proof thereof or otherwise he has not made a prima facie case and the presumption attaching to the finding of value by the appraiser is not overcome. However, where the appraiser has proceeded to find a value, proven to be erroneous because of fact or law, as in the case now before us, clearly such value cannot be found by the court to be the legal value of the merchandise, nor can the appraised value be legally established as the value of the merchandise by the dismissal of the appeal to reappraisement. In such circumstances, under the mandatory direction of the statute, section 501, it is the duty of the court to proceed to find a legal value for the merchandise. If all of the elements to be proven are not present in the record upon which to base a legal value, it is the duty of the court to require the importer to produce additional evidence to enable the court to obey the mandate of the statute and to render a judgment declaring the value which the collector may use as the basis of his liquidation.
As the value of the shoes here imported has not legally been determined by the appraiser, and the trial court having been unable to find value from the evidence before it, in my opinion, the reappraisement should be remanded to the trial court and placed upon the docket for the production of additional evidence.
*949For the reasons stated, I concur in the opinion of my associate,. Judge Brown, that the judgment of the trial court should be reversed and the case should be remanded thereto for a retrial