DISSENTING OPINION
GaRREtt, Judge:The decision of the Board of General Appraisers in In re Megroz, Portier, Magny & Go., upon which great reliance seems to be placed by the majority, it having been affirmed by a United States Circuit Court, was rendered June 30, 1891. The case arose under the 1890 tariff act. Since that time numerous and fundamental changes have been made in succeeding tariff acts with reference to the appraisement of merchandise and the relation of the tribunals of the United States Board of General Appraisers (now the United States Customs Court) thereto. See United States v. McConnaughey & Co., 13 Ct. Cust. Appls. 112, T. D. 40944, and Johnson & Co. v. United States (the latter cited by the majority) for a discussion of certain changes made by the Tariff Act of 1922. In addition to what was done in the Tariff Act of 1922 there was inserted into section 501 of the Tariff Act of 1930 a provision reading:
The value found by the [local] appraiser shall be presumed to be the value of the merchandise and the burden shall rest upon the party who challenges its correctness to prove otherwise.
The effect of this provision, as I view it, is to place the administrative act of the local appraiser in valuing merchandise for duty purposes upon the same plane as the administrative act of the Collector of Customs in classifying merchandise for duty purposes, so far as presumption of correctness is concerned.
The case of United States v. Von Oefele, cited in the majority opinion here, arose by protest. The collector had classified certain dried and ground volcanic earth, apparently used in taking "mud baths”, as an article composed of mineral substances at 35 per centum ad valorem under paragraph 95 of the tariff act of 1909 The importer protested, making alternative claims, one being under paragraph 480 of the act providing for nonenumerated manufactured articles, and another under paragraph 90 of the act as an earth wrought or manufactured. The Board of General Appraisers (now the United States Customs Court) held the merchandise classifiable under paragraph 480. The Government appealed but the importer did not cross appeal. In this court the Government conceded that the collector’s classification was wrong, and the importer seems to have conceded that the judgment of the board was wrong and that classi*34fication should have been under paragraph 90. This court so held and entered judgment accordingly. Thereupon the Government filed petition for rehearing, pointing out that as a result of this court's classification the amount of duty to be paid was less than the amount which would have been paid if the reliquidation had been made under the board’s classification and insisted that the importer, not having cross appealed, was not entitled to the more favorable judgment rendered. This court granted the rehearing and in a second opinion (United States v. Von Oefele, 4 Ct. Cust. Appls. 284, T. D. 33492), while adhering to its view as to the correct classification of the merchandise, held that importer’s failure to cross appeal deprived it of the benefit of such classification, and simply reversed the judgment of the board, thus leaving in effect, so far as that case was concerned, the classification of the collector, although it was conceded to have been erroneous.
It may be remarked that this court in a number of cases where it was found that both the classifications of the collector and the claims of the importer were erroneous, has overruled the protests. The result in such instances has been to leave the collector’s duty assessments in effect in those particular cases. Vide Tower & Sons v. United States, 11 Ct. Cust. Appls. 155, T. D. 38947; Balfour, Guthrie Co. v. United States, 14 Ct. Cust. Appls. 78, T. D. 41582.
The Johnson & Co. case, supra, was a reappraisement proceeding, the purport of our holding in which, as stated in effect in the majority opinion here, was that a party not appealing from the finding of the single judge sitting in reappraisement could not have the benefit of a finding of value by the appellate division more favorable than that of the single judge.
In the case at bar the first appeal taken was that by the importer to the single judge from the value, declared to be foreign value, found by the local appraiser. So, the burden rested upon the importer to overcome the presumption of correctness -attaching to the local appraiser’s finding, and to show the correctness of the value claimed by it. The Government not only did not complain before the single judge of the value found by the local appraiser but sought to have it maintained, and when the single judge found for the importer and the Government appealed, it sought only to maintain before the appellate division the value which the local appraiser had found. Its assignments of error upon this point both as to questions of fact and questions of law seem to me to be clear and unmistakable.
Indeed, had the single judge held with the Government in the first instance, I apprehend that there would have been no right of appeal on its part to the appellate division.
Upon the Government’s appeal to this court from the decision and judgment of the appellate division sustaining the action of the single *35judge, the only relief sought by it was to have the value found by the local appraiser sustained. It does not seem to me to have been in position, in view of its failure to appeal in the first instance, to have sought any other than that particular relief, and, under the assignments of error made upon the Government’s appeal to us, we could not, in my opinion, have granted it a more favorable finding than that for which it specifically contended — the value found by the local appraiser.
When the cause was reinstated in the court below upon our order of remand, that tribunal had before it no new assignments of error and, upon the record so standing, I am of the opinion that the division exceeded its authority in maldng a finding more favorable to the Government than any which, up to the time of its rendition, the Government had sought. It is my view that importer’s first assignment of error in the instant appeal is sufficient to cover the material issue raised on its behalf and that it should be sustained.
It may be added that throughout the proceedings in this case there has been no contention on the part of any one that the value found by the local appraiser did not equitably represent the correct dutiable value, if foreign-market value should be found to be the proper value to be taken as the basis upon which to assess duties. The importer simply insisted, in the first instance, that there was no foreign-market value under its legal theory, but conceded that, if a foreign-market value existed, the local appraiser’s finding was equitable.
A judicial practice through which judgments as to duty assessments, under classifications conceded by all the parties in interest to be erroneous, are upheld, while findings of value, upon the basis of which duties are levied, conceded by all the parties in interest to be right (the legal theory being once settled), are overthrown,-seems to me to be anomalous, to say the least of it.