STATEMENT ON PETITION FOR REHEARING
Garrett, Presiding Judge.The decision in this case was rendered January 4, 1946. On January 23, 1946, counsel for the Government filed a petition for rehearing in which clarification of our decision upon certain points is requested.
The petition is granted for that purpose.
It appears that the terms of the remand as conveyed to the Customs Court read:
Ordered that the judgment of the United States Customs Court be, and the same is hereby, reversed, and said cause is remanded to said court with instructions to the appellate division to consider the items of commission and export control [fee], and declare whether or not, under the facts it may find respecting their payment and status, both or either of the items constitute a part of export (and, therefore, dutiable) value, as defined in section 402 (d).
Concerning this the petition states:
This may be construed by the Appellate Division of the Customs Court as limiting the scope of its reconsideration to the one question whether these two items are dutiable or non-dutiable. The next inquiry will be the basic prices to which or from which these items are to be added or deducted, as the case may be.
The following finding of fact by the appellate division (which was quoted in our original decision) is then quoted:
From our review of the record, we feel that it shows an export value for quality No. 100 of .38 yen, packed ex Kobe, and for quality No. 200 of .495 yen, packed ex Kobe, which, as we understand, is equivalent to the entered values, except as to those items which were cut into 15-yard lengths and for which cutting there was an extra charge of }í sen. This extra charge of J4 sen per yard should, of course, be added to the value of those items which were cut from 30-yard lengths to 15-yard lengths.
Following this the petition states:
The opinion of this court does not indicate whether it affirmed this finding of fact subject to the qualification that the items of commission and control fee should be added, in order to make dutiable value, depending upon the facts the Appellate Division may find respecting their payment and status. On the other hand, the opinion does not indicate whether or not this court determined that this finding'of fact was not . supported by substantial evidence, and that it could, therefore, not receive this court’s approval. If this court intended to *132affirm this finding as properly representing the basic price above-referred to, the Appellate Division of the Customs Court would then know with certainty that the only matter to be considered by it will be the dutiablity of these two items.
After suggesting, in effect, that certain language used, in our decision might indicate that it was not our intention that the appellate division should be confined to the consideration of only the items of commission and export control fee in determining what is designated as “basic prices,” the petition concludes:
If the court has reached a conclusion with regard to the basic prices, which its opinion and its remand has not specifically expressed, it is suggested that in the interest of terminating this litigation with expedition and to obviate the necessity of further review, the conclusion of the case will be aided by this court expressing such conclusion, and the Customs Court and the parties may with certainty conduct their further proceedings.
It will be seen from our original decision that we pointed out that in its finding therein quoted and herein repeated, the appellate division made a slight advance over the entered values, and that such advance was not challenged by the importer.
It was our purpose to approve this finding and we do now approve and affirm it, subject to the qualification that the appellate division should consider the items of commission and control fee and declare, upon the facts it may find from the record concerning them, whether or not they should be added to the values stated in the finding quoted.