dissenting.
I note that the four learned Customs Court judges who passed on this case below were equally divided. Like Judge Smith, on consideration of the record I agree with the views of the trial judge and the dissenting j udge on the Appellate Term.
The primary question of law before us is whether the proper value is that of section 402(b), export value, as held by the trial judge. If it is, we do not reach constructed value of 402(d). As we said recently in the Acme Steel case,
If export value can be satisfactorily determined, no other basis of value may properly be considered. [My emphasis.]
*71Export value, as defined in the statute, is value based on sales or offers to sell. It is a “market value” and cost of production has nothing to do with it. Furthermore, section 402(b) speaks not of market value in the principal market of the country of export for home consumption but only of sales or offers to sell in the country of export 11 for ■exportation to the United States.” (My emphasis.) It is an export market value.
It seems to me that the court’s opinion, like that of the Appellate Term, improperly reaches the conclusion that “the record is insufficient to establish statutory export value” solely on the basis of cost accounting considerations which have a bearing on determining constructed value under section 402(d) but which really have nothing to do with market value, which is economically and legally a value which is independent of cost and cost accounting. It is no more tied to cost than the market price of securities on the stock exchange is tied to earnings, dividends or book values. I again emphasize that the only market value with which we are concerned is the section 402(b) export value, the price at the time of exportation at which the merchandise was freely offered, not for sale in Canada, but for exportation to the United States. It seems to me, as it did to the trial judge and Judge Lawrence, that the record is sufficient to establish that that price was the invoice price.
Market value is what you can get for merchandise, not what it costs to produce it. It is determined by supply and demand, by what buyers are willing to pay and sellers are willing to take. It may very-well be below the true cost of production, at some times, or of some producers, or even below the cost of production of the only producer. But if it exists and if it is established by the evidence, we do not properly reach the issue of cost or the problems of cost accounting to a discussion of which the court’s opinion is largely devoted.
The trial judge found that export value existed. His reasons are summarized in the seven points quoted in Judge Smith’s dissent. The trial judge pointed out that point six — “that the selling prices were high enough to include the cost of production of such merchandise for export sale, plus a profit” — was the only one questioned by the government, which contended the merchandise was sold at less than cost. But even if the government were right, its contention lacks merit for the reason that market value under section 402(f) (1) (B) need not represent a profit. Profit is taken into account in constructed value but not in market value. Compare sections 402 (b) and 402 (d).
As the exporter chose to do its cost accounting, it was satisfied that its export business in the United States was a profitable operation and it was, in fact, selling the merchandise in competition wfith United States producers. It is competition that controls market value and *72price. The Government’s true position, is that the exporter was not really selling at a profit. Bnt in contemplation of law this is irrelevant if in fact “export value,” which was a “market value,” was shown to exist. The trial judge said:
I am satisfied that tifie record evidence supports the contentions made by tbe plaintiff with respect to the existence and amount of export value, and, accordingly, I find as facts:
* * # * tji # J*
(10) That the said invoiced and entered values fairly reflected the market value of the merchandise.
(11) That the said invoiced and entered values were the prices, at the time of exportation thereof, at which such or similar merchandise was freely offered for sale to all purchasers in the principal markets of Canada, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, including the cost of all containers and coverings of whatever nature and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States.
I conclude as matters of law:
(1) That export value, as defined in section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, is the proper basis for the determination of the value of the merchandise, and
(2) That such value is the invoiced and entered value for each item.
In the Acme case, which, all concerned herein are referring to, we affirmed a judgment of the Appellate Term affirming the trial court’s judgment sustaining an appraisement based on export value. In doing that we uttered a dictum as follows:
We find ourselves in harmony with the view expressed by the majority that all sales in the ordinary course of trade are proper for consideration in ascertaining the price which fairly reflects the market value of the merchandise and that evidence of price, and hence of the value of goods in the foreign market, is relevant to the ultimate determination of the export value of imported merchandise within the ambit of section 402 (b) of the Tariff Act of 1930, as amended, supra, in the case of sales to selected purchasers. [My emphasis.]
A brief for amici “earnestly ask[s] the Court to reconsider or limit” that statement, saying,
This statement can be read to mean that home market price may be considered if there is no other information, outside the particular import transaction, indicating export market value; but it can also be read to mean that such data is always relevant. [My emphasis.]
If so broadly interpreted, the quoted statement is by no means required by the definition of “ordinary course of trade” and runs counter both to the language of section 402 in its entirety and the Congressional intent in the Customs Simplification Act of 1956 in establishing export value as the first and principal basis of valuation.
The court now seems to be reiterating that statement but in the context of a case denying the existence of ex-port value. If the above-quoted dictum is compared with the language of the statute which speaks of a market value “for exportation to the United States,” the *73relevancy of sales in the home market of the exporting country may well be questioned. The court nevertheless seems to rest heavily on this dictum in looking to the exporter’s home market prices as well as details of cost accounting to determine that export prices “were not fairly reflective of market values * * *.” But I do not think this is justifiable as the only market value we can concern ourselves with is the price in the export market. I am unable to see the relevancy of either sales in the home market or cost of production nor do I believe that we can base a finding of no export value on either one of them.
I would reverse.