dissenting.
The provisions of the statute to be applied here were especially revised by Congress to promote the ends of justice, not to defeat them. Les Parfums de Molyneux v. United States, 26 C. C. P. A. (Customs) 323, C. A. D. 36. And this court early announced its unqualified support of that purpose and its eager desire to comply with what was then the new legislation in Klein, Messner Co. v. United States, 13 Ct. Cust. Appls. 273, 277, T. D. 41212, wherein our distinguished predecessors in a well-documented and unanimous decision held that: “Clearly this is a remedial statute to be liberally construed to promote the object of the legislation.”
Moreover, the mere fact that the final appraised value of the imported merchandise in the case at bar was in excess of the entered value, even had it been very much in excess thereof, does not of itself require that additional duties be collected here from the importer Westerfield, a former officer of the Navy home from abroad after twelve years of naval service aboard ships. International Graphite & Electrode Corp. v. United States, 27 C. C. P. A. (Customs) 36, C. A. D. 58.
Those simple fundamentals have been lost by the majority in the maze of unwarranted concern expressed here over the deterrent effect the judgment of the Customs Court might not have on slack and dishonest importers who may otherwise and hereafter conspire to defraud the revenues of the United States. The arbitrary procedure thus pursued ignores the outstanding fact disclosed by the record that the judgment appealed from is one of justice and fairness to the “frank and forthright” importer of these particular goods.
The evil which Congress sought to remedy more than thirty years ago by the original enactment of section 489 of the Act of 1922, which was carried over and enacted without change in the Act of 1930, was defined by the report of the United States Tariff Commission made upon the revision of the customs administrative laws in 1918, wherein, among other things, the report stated:
Undervaluation. — The greatest cause of dissatisfaction in the administration of the customs laws as they now stand is the provision imposing additional duties in cases of undervaluation. These duties, under existing law, accrue whenever merchandise is entered by the importer at a value less than that finally fixed by the appraiser. They are applied automatically, and without regard to any evidence of the importer’s guilt or innocence, * * *
The auspicious beginning with reference to the liberal interpretation of sec. 489 made by the Court of Customs Appeals in Klein, Messner supra, has since been generally continued here. Our official reports establish that often as not we have here reversed the judgments of the Customs Court based on an unsupported finding there of an intent to defraud the revenue of the United States by an honest and *128diligent importer. E. g., Schrikker v. United States, 13 Ct. Cust. Appls. 562, T. D. 41433. However, this court, as in the case at bar, has at times imposed its own rule of evidence, nullified the remedial purpose for which section 489 was enacted, and in effect reverted to the very abuse which the statute was designed to eliminate.
The judicial precedents and the legislative background of the involved provisions of the tariff act dealing with fraud, forfeiture, and the imposition of additional duties for intent to defraud the revenues of the United States require that the burden of proof shall lie on the importer in those cases only where probable cause is shown by the Government for fraud or a suspicion of fraud, to be judged by the court before whom such case is tried. See, for example, Taylor et al. v. United States, 3 How. [44 U. S.] 197, 211; Vitetti & Son v. United States, 250 U. S. 355.
In Vitetti the Supreme Court reversed the judgement of our court based upon a prolonged and profound decision. 7 Ct. Cust. Appls. 243-283. In so doing the Supreme Court held that where the collector reliquidates an entry on the ground of fraud, the Court of Customs Appeals cannot presume that the action of the collector was correct so as to cast the burden of disproving fraud upon the importer. That ruling has been nowise modified or reversed.
There is no dispute that this court has the right to review, and remedy a flagrant judgment of the Customs Court rendered under section 489 by any judge thereof, who alone has been endowed by Congress with the power to hear the evidence and to apply the appropriate penalty or remedy as the case may be.
It is elementary that no valid jurisdiction exists in an appellate court to retry doubtful issues of fact on a cold record and substitute its judgment for that of the trial court with respect to such issues. Moreover, appellee as the prevailing party in the case at bar must be given the benefit of all reasonable inferences which can be drawn from the evidence.
The following excerpts from the record establish a few significant, interesting, and pertinent facts which may or may not have escaped attention. With respect to the merchandise, the importer Westerfield testified:
Witness: The value of the light was not so much the monetary cost as much as it was the novelty of the light.
Q. What was novel about it?
A.' The light incorporated a magnetic piece which could be used working around engines so long as you had a steel surface to attach the light to and the light could be focused.
Q. It could be fastened on the bulkhead of an engine?
A. Yes, and turned in any direction you wanted.
*129XQ. What is the nature of this merchandise — they are portable?
A. They are portable hand lights; they are electrie lights with a cord on them— portable — and they have a magnetic base where you just throw them up against a bulkhead on a ship and they will hang on and you can turn them in any direction; they are trouble lights.
❖ * * * * * $
Q. In having the merchandise entered as you did at a price of $3.10 did you attempt in any way to defraud the revenue of the United States Government or conceal or misrepresent the facts of the case or to deceive the appraiser as to the-value of the merchandise?
A. Never.
♦ * % * * % *
XQ. Now when you went to see Mr. Ittman you had a conversation with him didn’t you about making entry for you?
A. Previous to making—
XQ. Before entering the invoice you had correspondence with him?
A. I asked Mr. Ittman about importing merchandise. Mr. Ittman told me that was the nature of his business. When I received the invoice and the shipping notice I went over to the Customhouse to find out how I should go about entering it. My advice was to see a customs broker and I went over to Mr. Ittman. (Italics supplied.)
* * * * * * #
XQ. Mr. Ittman you know that Mr. Westerfield employed you because you had been highly recommended?
A. Yes.
XQ. You know that Mr. Westerfield had confidence and faith in you?
A. Yes.
XQ. You know he still does, don’t you?
A. Yes.
XQ. You also found that Mr. Westerfield was not familiar with Customs practice didn’t you?
A. That I understood at the time he made entry.
XQ. And this was the first time he had ever had any connection with Customs?
A. Yes.
XQ. And you found him an upright young businessman?
A. Yes.
The higher value for the merchandise in the markets of Norway was nowise clearly established by the facts of record:
Judge Ekwall: There is already something in the record that there was no home market for something like three years isn’t that right?
Mr. Weil: This letter says there was.
Judge Ekwall: No, it doesn’t. It says when they resume selling in the home market they will make it $3.10. (Discussion off record.)
The foregoing are some of the supplemental items which may be used to embellish the facts enumerated in the respective decisions of the majority as well as the Customs Court. These itemized facts do not of course include the intangibles which basically contributed to the ultimate conclusion of the trial court. There certain essential points were in sharp conflict and were determined by the presiding judge in accordance with the importer’s version of the transaction.
*130The judge in his disposition of the case may have felt, and justly so, that the young lady employed in the office of the broker Ittman was the one who actually entered these goods, and had she been called as a witness, as she should have been in the interests of justice, such a fact would have been developed. The importer Westerfield called at the Customhouse at the very outset so as to properly enter the goods. Customs officials otherwise were given the fullest assistance by him in every respect from start to finish. Those officials through regular channels of customs procedure had in their possession data which' related' the story of the importer's transaction.
Moreover, custom officials at the port of New Orleans have heretofore demonstrated their own carelessness in the conduct of the business of that office. See Standard Oil Co. of Louisiana v. United States, 33 C. C. P. A. (Customs) 152, C. A. D. 329.
This opinion might thus be prolonged in the discussion of additional factors disclosed by the record and the reasonable inferences which the trial judge may have drawn therefrom. In all events there was more than ample evidence to support the finding of fact made by the court below and the judgment of the Customs Court based thereon should be affirmed. “Surely we do not want to confirm Mr. Dooley’s observation to the effect that an appeal is an occasion for one court to show its contempt for another.” 1
Land v. Dollar, 341 U. S. 737, 750.