dissenting, with whom Baldwin, Judge, joins.
The issue is whether the Customs Court correctly determined that remission of the Japanese commodity tax upon export of the involved electronic goods, coupled with the levy of such tax on consumption of like goods in Japan, constitutes the payment or bestowal, “directly or indirectly,” of a “bounty or grant” for purposes of section 303 of the Tariff Act of 1930, as amended (19 USC 1303).
Contrary to the majority opinion, I conclude that the controlling question is a matter of law and not a factual inquiry into the “economic result” of the Japanese commodity tax; that this is really not a case of first impression, since the key language of the statute has been inter*148preted by tbe Supreme Court before; that the interpretation by the Court was basic to its decision and was not obiter dictum; that this judicial interpretation prevails over any long-continued administrative practice; and that Congressional “acquiescence” in such administrative practice is a myth.
I would affirm the decision and judgment of the Customs Court except with respect to the date as of which countervailing duties are to be imposed.
The facts
The Customs Court stated the “essential facts” as follows:
The Japanese Commodity Tax Law, cited as Commodity Tax Law (March 31, 1962, Law No. 48) as revised, is a single-stage consumption tax which is levied usually at the manufacturing level on a fairly extensive list of consumer goods, inclusive of electronic products of the types manufactured by plaintiff. Bates of tax range generally from 5 to 40 percent. Upon exportation of these products from Japan, the tax is either remitted, if previously paid, or the products are exempted from the payment of the tax. [Footnote omitted.]
Additionally, in its answer to Zenith’s complaint, the Government admitted that the commodity tax is levied on goods shipped for home consumption and that the tax base is generally the manufacturer’s sales price; however, it denied, “for lack of knowledge or information sufficient to form a belief as to the truth thereof,” that the commodity tax rates set forth in the complaint were applicable to the enumerated products.1 Nevertheless, most of the rates alleged are shown in An Outline of Japanese Taxes 130-34 (1975), published by the Tax Bureau, Ministry of Finance (Lib. Cong. Kef. No. HJ 2986 •A3 1975), of which we may take judicial notice.2
Controlling question a matter of law
The majority opinion declares that it is the economic result of the foreign government’s action which controls [whether such action is a “bounty or grant”] and that this requires a factual inquiry. It then says that “the record is silent regarding the economic result of the mere remission of the Japanese commodity tax” and that “[t]he Secretary has presumably determined that the economic result here is not *149tbe conferring of such a benefit, subsidy, or incentive as would rise to the level of a bounty or grant under § 303.” To this it adds: “The factual underpinnings of the Secretary’s negative countervailing duty determination in this case are not under attack.”
Of course, such “factual underpinnings” are not under attack, because there are none to attack. Indeed, even a presumption that the Secretary made a determination regarding the economic result is rebutted by the record. The majority opinion has confused the Secretary’s determination of whether or not remission of the Japanese commodity tax constitutes the payment or bestowal, “directly or indirectly,” of a “bounty or grant,” which is a matter of law, with the factual determination yet to be made by the Secretary of the “net amounts of the bounty or grant paid or bestowed” (on the basis of which countervailing duties are to be assessed) in accordance with the order of the Customs Court.3
Concerning the Secretary’s “determination” here, all that the record shows is set forth in (1) the Notice of Preliminary Determination, approved by an assistant Secretary of the Treasury on January 30, 1975 (40 Fed. Reg. 5378), referring to the Notice of Countervailing Duty Proceedings 4 in the Federal Register of May 19, 1972 (37 Fed. Reg. 10087), and making a preliminary determination, on the basis of an investigation, that benefits under three Japanese programs (none of which related to the commodity tax) constituted bounties or grants, but were considered to be de minimis; (2) an amendment to said Notice of Preliminary Determination, approved by an Acting Assistant Secretary of the Treasury on May 2, 1975 (40 Fed. Reg. 19853), adding the following paragraph thereto:
Any other programs alleged to result in the payment or bestowal of a bounty or grant within the meaning of section 303 of the Act have been terminated by the Japanese Government and/or are preliminarily determined not to result in the payment or bestowal of a bounty or grant.5
and (3) the Final Negative Countervailing Duty Determination, approved by an Acting Assistant Secretary of the Treasury on December 31, 1975 (41 Fed. Reg. 1298), merely repeating the notice of Preliminary Determination that information developed in the investigation established that benefits under the three Japanese programs *150(unrelated to the commodity tax) were de minimis and concluding as follows:
Accordingly, on the basis of the additional facts gathered and the investigation conducted ... a final determination is hereby made in this proceeding, that for the reasons stated, herein and in the notice referred to above [the Notice of Preliminary Determination], no bounty or grant is being paid or bestowed, directly or indirectly, within the meaning of section 303 .. . upon the manufacturer [sic], production, or exportation of certain consumer electronic products from Japan.
Thus, it is seen that there was no determination of economic result by the Secretary with respect to the Japanese commodity tax — not even a de minimis determination as in the case of the three other programs referred to — but only a conclusion of law that under any current programs, no bounty or grant is being paid or bestowed, directly or indirectly, within the meaning of section 303. It is the correctness of this conclusion of law that was before the Customs Court, whose decision thereon we review.6
Key language of statute previously interpreted by Supreme Court
In Downs v. United States, 187 U.S. 496 (1903), the Supreme Court interpreted the key language of section 5 of the Tariff Act of 1897, 30 Stat. 205,7 in the course of deciding, as the Court put it, supra at 500—
*151the smgle question whether, under the laws and regulations of Russia, a bounty is allowed upon the export of sugar which subjects such sugar, upon its importation into the United States, to an additional duty equal to the entire amount of such bounty, under [section 5 of the Tariff Act of 1897].
The Russian scheme relieved exporters from the ordinary excise tax that would have been payable had the sugar been sold domestically and also provided exporters with certificates which could be sold to sugar producers, who would use them to free-up their surplus sugar for sale in the domestic market without payment of a prohibitive tax burden.
As noted in the majority opinion, the Board of General Appraisers (4 Treas. Dec. 405, T.D. 22984 (1901)) stated, at 413:
Our conclusion, therefore, is that a bounty or grant, within the meaning of section 5 of our tariff act, has been paid or bestowed by the Russian Government upon the exportation of this sugar, so as to work a benefit or advantage to the Russian sugar exporter as follows:
First. Upon the exportation of the sugar, the Government remitted or refunded the exicse tax due thereon ... so that he was enabled to place his product upon the market free from the burden of either the regular or additional excise tax.
Second. The certificate which the Government issued to him upon the exportation of his sugar had a substantial market value, and was transferable, and operated as a premium, grant, bonus, or reward.
Looked at from the Russian standpoint, these advantages might, perhaps, be described as a bounty on production, but (in the language of the circuit court of appeals in the Hills Brothers case [United States v. Hills Bros. Co., 107 F. 107 (CA 2 1901)], supra) “from the standpoint of other countries,” they become a bounty or grant on exportation.” [Emphasis supplied.]
Although the Fourth Circuit, in affirming the Circuit Court for the District of Marlyand, which had affirmed the Board (opinion unreported), held that the Government of Russia secured to the exporter of that country a money reward or gratuity whenever he exported sugar from Russia and premised that holding on its finding that the Russian exporter of sugar received a certificate, it said [Downs v. United States, 113 F. 144, 146 (CA 4 1902)):
In affirming the decree of the court below, we also affirm the judgment rendered by the board of general appraisers, whose opinion so fully expresses our views, and so ably presents the facts involved herein and the law applicable thereto, that we deem it entirely appropriate to adopt the same as part of the opinion of this court.
It is clear that the Supreme Court regarded both the remission of excise taxes upon exportation and the provision of certificates to *152exporters in assessing tbe Russian scheme. However, tbe basis of its decision rested on its interpretation of tbe key statutory language, particularly the term “bounty.” Thus, it explained, supra at 502:
A bounty may be direct, as where a certain amount is paid upon the production or exportation of particular articles, of which the act of Congress of 1890, allowing a bounty upon the production of sugar, and Rev. Stat. sections 3015-3027, allowing a drawback upon certain articles exported, are examples; or indirect, by the remission of taxes upon the exportation of articles which are subjected to a tax when sold or consumed in the country of their production. . . .
Later in its opinion, the Court applied this interpretation to the Russian government’s remission of excise taxes as follows, supra at 515:
The details of this elaborate procedure for the production, sale, taxation and exportation of Russian sugar are of much less importance than the two facts which appear clearly through this maze of regulations, viz.: that no sugar is permitted to be sold in Russia that does not pay an exicse tax of R. 1.75 per pood and that sugar exported pays no tax at all. . . . When a tax is imposed upon all sugar produced, but is remitted upon all sugar exported, then, by whatever process, or in whatever manner, or under whatever name, it is disguised, it is a bounty on exportation.
With respect to the certificate part of the Russian scheme, the Court noted, supra at 512:
It is practically admitted in this case that a bounty equal to the value of these certificates is paid by the Russian government, and the main argument of the petitioner is addressed to the proposition that this bounty is paid, not upon exportation, but upon production.
Referring to the certificate as an additional bounty, the Court then proceeded to answer petitioner’s argument and to determine that the certificate came within its interpretation of the key statutory language, supra at 513:
If the additional bounty paid by Russia upon exported sugar were the result of a higher protective tariff upon foreign sugar, and a further enhancement of prices by a limitation of the amount of free sugar put upon the market, we should regard the effect of such regulations as being simply a bounty upon production, although it might incidentally and remotely foster an increased exportation of sugar; but where in addition to that these regulations exempt sugar exported from excise taxation altogether, we think it clearly falls within the definition of an indirect bounty upon exportation. [Emphasis supplied.]
Thus, the fact that this “additional bounty” was coupled with remission of the excise tax, which the Court determined to come within *153its interpretation of. “bounty upon exportation” in tbe statute, was the basis .for its decision that the certificate was “an indirect bounty upon exportation.” Had the Court not determined that remission of the ■excise tax was a “bounty on exportation,” its decision on the certificate portion of the Russian scheme would, have been otherwise.
Not to be overlooked is the fact that in their briefs before the Court, both Downs and the Government argued the question of whether the remission of excise taxes upon exportation of sugar is a “bounty or grant on exportation” as the terms were used in the statute, with Downs, the importer, contending in the negative and the Government saying (R 236):
For it seems that any special favor, benefit, advantage, or inducement conferred by the Government, even if it is given as a release from the burden and is not a direct charge upon the Treasury, is fairly included in the idea and meaning of an indirect bounty.
Nevertheless, the majority opinion would treat the Supreme Court’s interpretation of the key language in section 5 as mere dictum, saying that the court’s decision was that the Russian scheme (as a whole) bestowed a bounty and that “the broad language” (quoted above) “was not necessary to the Supreme Court’s decision and was not, therefore, its ratio decidendi”; further, that the “broad language did not constitute a Supreme Court holding that every nonexcessive remission of every excise tax constitutes a bounty or grant as a matter of law.” Of course, the quoted interpretative language did not say that every nonexcessive remission of every excise tax constitutes a bounty or grant. The Court carefully phrased its interpretation to couple with such remission the condition that such tax be paid on the articles when sold or consumed domestically.8 To conclude that, because the decision had to do with the “Russian scheme,” which included two bounties, (1) remission of the excise tax and (2) provision of certificates of value, the Court’s interpretation of “bounty” with respect to the remission of the excise tax portion of the scheme is not ratio decidendi is manifestly erroneous. As pointed out above, that interpretation was the basis for the decision that the certificate portion of the scheme was an indirect bounty upon exportation. Moreover, since the Supreme Court clearly determined that both remission of the excise tax and the certificate constituted a bounty, there were two grounds upon either of which it *154rested , its decision. Each, ground represented the judgment of the court and was of equal validity with the other, Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949); Massachusetts v. United States, 333 U.S. 611, 623 (1948); Richmond Co. v. United States, 275 U.S. 331, 340 (1928); United States v. Title Insurance Co., 265 U.S. 472, 486 (1924); Union Pacific Co. v. Mason City Co., 199 U.S. 160, 166 (1905); Railroad Companies v. Schutte, 103 U.S. 118, 143 (1880).
Thus, the Court’s determination that remission of the excise tax was a “bounty” did not constitute mere obiter dictum as did the statement treated in Kastigar v. United States, 406 U.S. 441 (1972), cited by the majority, whose assertion that “we confront a case of first impression” simply begs the question. Rather, the Court’s interpretation is akin to the Court’s explanation in Towne v. Eisner, 245 U.S. 418 (1918), of the essential nature of a stock dividend in interpreting the Income Tax Act of October 3, 1913.9 That explanation was relied upon by the Court in Eisner v. Macomber, 252 U.S. 189 (1920), where the question was whether a stock dividend, made against profits accumulated by a corporation after March 1, 1913, was taxable under the Revenue Act of 1916. In affirming the judgment below for the taxpayer, the Court said, supra at 204-05:
Therefore, Towne v. Eisner cannot be regarded as turning upon the point that the surplus accrued to the company before the act took effect and before adoption of the Amendment. And what we have quoted from the opinion in that case cannot be regarded as obiter dictum, it having furnished the entire basis for the conclusion reached. We adhere to the view then expressed, and might rest the present case there . . . because the conclusion there reached as to the essential nature of a stock dividend necessarily prevents its being regarded as income in any true sense.
In its efforts to downgrade Downs, the majority opinion ignores the Supreme Court’s own recognition of its precedential value in Nicholas & Co. v. United States, 249 U.S. 34 (1919), which involved the petitioner’s protest against the action of collectors of customs at Boston and New York assessing countervailing duties on whiskey *155and gin imported from Great Britain. The Supreme Court affirmed the judgment of the Court of Customs Appeals (the predecessor to this court), which had affirmed a decision by the Board of General ■Appraisers (the predecessor to the Customs Court) overruling the protests. The issue was the legality of the countervailing duty, which had been determined to be necessary under Paragraph E of section 4 ■of the Tariff Act of 1913 (38 Stat. 114)10 by reason of the allowance under British law of three pence per gallon upon plain British spirits and five pence per gallon .upon British compounded spirits paid on account of export from the United Kingdom.11 Referring to Paragraph E, the Court supra at 39, said;
The statute was addressed to a condition and its words must be considered as intending to define it, and all of them — “grant” as well as “bounty” must be given effect. If the word “bounty” has & limited sense the word “grant” has not. A word of broader significance than “grant” could not have been used. Like its synonyms “give” and “bestow,” it expresses a concession, the conferring of something by one person upon another. And if the “something” be conferred by a country “upon the exportation of any article or merchandise” a countervailing duty is required by Paragraph E.
The Court next, supra at 39-40, stated, in language reminiscent of Downs, the pragmatic principle on which it rested its decision that the payment by the British government was the bestowal “directly or indirectly” of a “bounty or grant”:
We have the fact of spirits able to be sold cheaper in the United States than in the place of their production, and this the result of an act of government because of the destination of the spirits being a foreign market. For that situation Paragraph E was intended to provide.
The Court cited United States v. Passavant, 169 U.S. 16 (1898), as support for its pragmatic approach, saying: “It [the Court in Passa-*156vant] regarded the fact and effect of the remitted excise.”12 It then recognized the precedential value of Downs,13 supra at 41:
Downs v. United States, 187 U.S. 496, is a like example [of the pragmatic approach], and direct and indirect bounties are illustrated. . . . [A]s instances of the latter, that is, of indirect bounties, the remission of taxes upon the exportation of articles which are subject to a tax when sold or consumed in the country of their production is given, and, as another example, the laws permitting distillers of spirits to export the same without payment of an internal revenue tax or other burden. [Emphasis supplied.]'
If the majority’s erroneous approach to precedent were followed, the judicial function of statutory interpretation would be reduced to merely deciding that the facts of a particular case are or are not within the reach of a particular statute. The judicial function of giving life and meaning to the words of a statute for guidance to other courts as well as to the executive and legislative branches of government would be emasculated, and interminable litigation would be spawned.14
Judicial interpretation prevails over “long-continued, uniform, administrative practice”
The majority opinion states that, since 1898, the Treasury Department has consistently and uniformly interpreted §303 as requiring that for a remission of an excise tax to constitute a bounty it must be “excessive.” 15 It then cites the familiar rule that long-continued, uniform administrative practice, if not contrary to or inconsistent with law, is entitled to great weight, particularly when Congress has failed to revise the statute in the face of such administrative practice; and it finds no Congressional action contrary to or inconsistent with that practice. However, it is to be noted that in none of the cases cited by the majority opinion had there been a judicial interpretation with which the administrative practice was in conflict.
There is another familiar rule, namely: continued reenactment of a statute following its judicial interpretation (especially by the Supreme Court) creates a presumption of Congressional approval of that interpretation. Shapiro v. United States, 335 U.S. 1, 16 (1947); *157Burnet v. Harmel, 287 U.S. 103, 108 (1932); Hecht v. Malley, 265 U.S. 144, 153 (1924); Latimer v. United States, 223 U.S. 501, 504 (1912); Sessions v. Romadka, 145 U.S. 29, 42 (1892). As will be more fully developed later, there has been, no Congressional action contrary to or inconsistent with the interpretation of the key statutory language in Downs.
When there is a conflict between administrative practice and judicial interpretation, as has been the case here, this court’s predecessor long ago held that judicial interpretation prevails. United States v. Douglas & Berry, 6 Ct. Cust. Appls. 100, T.D. 35342 (1915). That case involved the question of whether the imported goods in question were classifiable as “plain woven fabrics” under paragraph 283 of the Tariff Act of 1913. In two earlier cases, the court had interpreted identical language in the predecessor provisions to paragraph 283 (contained in the Tariff Acts of 1897 and 1909) and had rejected the classification of similar goods as “plain woven fabrics.” Responding to the importers’ argument that goods like those in question were,, during the history of the Tariff Act of 1909, classified as plain woven fabrics and that employment of that language in the Tariff Act of 1913 must be presumed to be a recognition of such administrative practice, the court said supra at 104:
Force is often given to such administrative practice, hut in the present case it is difficult to see how it could have the force contended for, for the reason that prior to the enactment of this tariff law rulings of this court had been made in the two cases cited, and more specifically and definitely in the later case of White v. United States (3 Ct. Cust. Appls”,- 382; T.D. 32968), that, excluded the goods in question from the term “plain woven fabrics,” and it is the latter authoritative decision which the Congress must he presumed to have followed rather than the administrative practice. [Emphasis supplied.]
The fact that the executive branch does not follow the interpretation of a law by the judicial branch does not render that interpretation any less the law. Nor would acquiescence by the legislative branch in the failure of the executive branch to follow the interpretation of the law by the judicial branch do so. Indeed, a contrary conclusion would deny the role of the judicial branch in our system of government “to. say what the law is,” as declared in Marbury v. Madison, 5 U.S. (1 Cranch) 87, 111 (1803).
The myth of Congressional acquiescence in administrative practice
Although the principle stated in United States v. Douglas & Berry disposes of the administrative practice point, the following portion of the majority opinion should be answered:
[W]e find it difficult to believe that Congress would harbor in its breast a disapproval of an administrative practice for almost 80 *158years, while remaining so supine or irresponsible as not to change it. . . . Though the record shows the first specific notice- to-Congress in 1949, we cannot assume that Congress had earlier reenacted the statute four times without ever informing itself of Treasury’s practice. But whether awareness of the practice has-continued for 79 years or for 28 years, the inference of acquiescence from Congress’ failure to act against the practice over the-many years involved, and through many reenactments of the statute, overbalances any inference of rejection from failure to-codify it. [Footnote omitted.]
Actually, the record shows that the “first specific notice to Congress”' came in 1949 during the .course of hearings before the Senate Finance Committee. In 1970 Congress amended section 516 of the Tariff Act. of 1930 to provide that, in the case of any imported article or merchandise with respect to which the Secretary has not determined whether or not any bounty or grant is being paid, any person may file a petition setting forth his belief that a bounty or grant is being paid.16 The Customs Administrative Act of 1970 § 209, Pub. L. No. 91-271, 84 Stat. 274, 286. (Zenith filed such a petition in this case.) So the period of “awareness” of Treasury’s practice on the part of “Congress” before it endeavored to do something about the practice shrinks from 79 to 21 years. The supposition in the majority opinion of a longer period of “awareness” on the part of Congress is pure speculation.
As Judge Newman noted in his concurring opinion below, the Treasury Department attempted to persuade Congress to amend section 303 of the Tariff Act of 1930 to accord with the Department’s practice of not' assessing countervailing duties on the remission of taxes.17 This and another attempt (by the State Department)18 failed. In the perspective of the principle stated in United States v. Douglas & Berry, supra, Judge Newman aptly remarked:
It is apparent, then, that Congress could have, but declined to, nullify the Supreme Court’s interpretation of the countervailing duty statute insofar as tax remissions are concerned. A reasonable conclusion from the congressional rejection of the . . . proposed amendments ... is that Congress was satisfied with *159tbe way it bad earlier written, tbe statute, and- approved of tbe Supreme Court’s construction of tbe law.[19]
Tbe majority opinion recalls that during bearings before tbe House Committee on Ways and Means in 1973 on tbe bill wbicb matured-into the Trade Act of 1974 (Pub. L. No; 93-618, 88 Stat. 1978), “a witness” recommended an amendment defining “bounty or grant” as encompassing tbe remission of an excise tax and that there was no action taken on- tbe recommendation. This, can hardly be said to rise to the level of Congressional acquiescence in administrative practice, much less a repudiation by Congress of tbe interpretation of the key language in section 303- by tbe Supreme Court.
Tbe majority opinion points to Congressional adoption, as § 321(b). of tbe Trade Act of 1974, of an amendment to the Antidumping Act, 19 USC 162 (Supp. V 1975), wbicb parallels the standard in that Act to tbe standard set forth in tbe countervailing duty law; further, to tbe following statements in tbe committee reports;
However, your committee [Ways and Means], in recommending this amendment, does not express approval or disapproval of tbe standard employed by tbe Treasury Department in administering tbe countervailing duty law with regard to tbe treatment under that law of rebates, or remissions of direct and indirect taxes. [H.R. Rep. No. 93-571, 93d Cong., 1st Sess. 69 (1973).]
And—
Tbe standard in tbe proposed amendment parallels that standard employed by tbe Treasury Department under tbe countervailing duty law in determining whether tax rebates and remissions constitute bounties or grants. However, tbe Committee [Senate Finance], in recommending this amendment, does not express approval or disapproval of that Treasury practice. [S. Rep. No. 93-1298, 93d Cong., 2d Sess. 172 (1974).]
On tbe basis of tbe foregoing, tbe majority opinion concludes: “The effect of tbe Committees’ mutually contradictory approve-disapprove statements is necessarily to leave untouched tbe status quo with respect to tbe administrative practice on countervailing duties.” Again tbe majority ignores tbe principle stated in United States v. Douglas & Berry, supra. Tbe Correct conclusion is that such statements left untouched tbe status quo with respect to tbe Supreme Court’s interpretation of tbe key language in section 303.
Tbe majority opinion notes that, in 1968, tbe Senate Finance Committee was advised that Treasury considered §303 inapplicable to *160nonexcessive remissions of excise taxes; that no action was taken at that time; and that, in 1970, the Committee requested a detailed study on the subject. The “request” was a direction to the Tariff Commission contained in section 362 of H.R. 17550, which did not become law. The Senate Finance Committee, in its report on the bill (S. Rep. No. 91-1431, 91st Cong., 2d Sess. 281 (1970)) stated, inter alia:
The committee is also aware of the Supreme Court cases, and a recent Customs Court case which has interpreted the works “bounty” or “grant” to apply to virtually all subsidies, including the rebate of indirect taxes.
A request for a study was subsequently made jointly by the chairman of the Senate Finance Committee and the chairman of the Subcommittee on International Trade to the Tariff Commission, which transmitted its voluminous report, TRADE BARRIERS, supra note 6, in 1974.20
This can hardly be said to rise to the level of a repudiation by the Congress of the interpretation of the key language in section 303 by the Supreme Court. Rather, the request for a study by the Tariff Commission constituted merely a prudent step by a Congressional committee to acquire information needed to make a decision whether to recommend any changes in the law beyond the 1970 amendment, referred to above, providing for the filing of a petition by any person setting forth his belief that a bounty or grant is being paid. Following receipt of the Trade Commission’s report, the judicial review provision, discussed infra, was enacted as part of the Trade Act of 1974.
Referring to this court’s opinion in American Express Co. v. United States, 60 CCPA 86, C.A.D. 1087, 472 F. 2d 1050 (1973), the majority opinion says that “we expressed the view that Congress required the Secretary to impose a countervailing duty’when a bounty or grant has been bestowed, but left to the Secretary the determination of whether a bounty or grant had in fact been bestowed” and. that ■“[n]othing has occurred since 1973 to require change in that view.” However, a close reading of the opinion in that case reveals no suggestion whatsoever that this court would approve a Secretarial determination that was contrary to the interpretation of “bounty” by the Supreme Court. With respect to what has occurred since 1973, *161provision in tbe Trade Act of 1974 for judicial review of the Secretary’s determination that a bounty or grant is not being paid on foreign merchandise reflects, as shown infra note 26, expressed Congressional concern over “inaction or insufficient action, or . . . excessive delay in the administrative process.”
That provision was enacted in response to the majority opinion of this court in United States v. Hammond Lead Products, Inc., supra note 3. Hammond Lead had filed a complaint with the Commissioner of Customs asserting that litharge21 imported from Mexico was the recipient of a bounty or grant from the Mexican government and, therefore, that a countervailing duty was required to be imposed under section 303 of the Tariff Act of 1930. The Commissioner of Customs, acting for the Secretary, responded that the classification and rate of duty on litharge were correct and that countervailing duties were not applicable. Hammond Lead then brought an action in the Customs Court under section 516(b) of the Tariff Act of 1930, protesting the classification and rate of duty. The Government and one Ralph Vails, Party-In-Interest, moved to dismiss on the ground that the Customs Court lacked jurisdiction of the subject matter of an American manufacturer’s protest which complained that the Secretary failed to invoke a countervailing duty. Motions to dismiss were denied, and trial on the merits followed. The Customs Court sustained Hammond Lead’s protest on the theory that there was an indirect bounty or grant on export of the litharge from Mexico.22
On appeal, this court, split 3-2, held that the Customs Court lacked jurisdiction.23 It concluded, supra at 137:
All considered, it appears that countervailing duty is a penal exaction [24] that the Congress did not intend the courts to impose, should the Treasury be recalcitrant, in a 516(b) proceeding . . . Z
In the course of extended dicta, the majority opinion obliquely referred to the “dicta” in Downs and went on to say, supra at 140-41:
It may be asked, if our interpretation of section 516(b) is correct, does it leave the American Manufacturer entirely remediless even in case of an arbitrary and capricious refusal by Treasury to take appropriate action under the countervailing duty *162law. It is difficult to answer the question without deciding in dictum cases not before us, but a few observations will be made. The Second Circuit, in J. C. Penney Company Inc. v. United States, 439 F. 2d 63 (decided March 1, 1971), has considered the new statute and reaffirmed holdings under the old, that the regular Federal courts will not interfere in customs cases reviewable in the Customs Court, because an importer desires to tailor a remedy more satisfactory to him than the Customs Court affords. : . . Thus it may be that any decision limiting 516(b) may correspondingly limit the access of a complaining domestic industry to any kind of court relief. On the other hand, the modem tendency to fashion a remedy for any injury is a srong one, and it could be the regular courts would take jurisdiction in cases outside section 516(b), where the domestic industry showed clear illegality and substantial injury. Such a proceeding would not be a de novo determination like the one the court below made here, but would, we think, be more in the nature of a review of the administrative decision, which would be overturned only if found arbitrary, capricious, or not founded on substantial evidence. A court considering the fashioning of such relief would have to consider its need in light of judicial remedies, and also such extrajudicial ones as the domestic industry might have, in resort to the Congress or to the Tariff Commission, We do not undertake to predict the answer.
The response of Congress was to include in the Trade Act of 1974 an amendment to section 516 which, as noted above, provides for judicial review of the Secretary’s determination that a bounty or grant is not being paid on foreign merchandise.25 As a prelude to this Congressional action, in 1972 the Senate had tacked onto a minor House-passed tariff bill an amendment providing for judicial review, at the instance of American producers, of negative countervailing duty determinations by the Secretary.26 Although the amendment was *163accepted by the House-Senate conferees (H.R. Rep. No. 92-1583. 92d Cong., 2d Sess. (1972); S. Rep. No. 92-1298, 92d Cong., 2d Sess, (1972)) the Conference Report was not brought to a vote in the House as an accommodation to the Secretary, with the understanding that the matter would be given attention in the context of trade legislation in the next Congress (118 Cong. Rec. 37098 (1972)). The judicial review provision was subsequently included in the House-passed version of what became the Trade Act of 1974, with the House Ways and Means Committee Report expressing similar views to those of the Senate Finance Committee (quoted in note 26, supra) in its report accompanying the 1972 bill (H.R. Rep. No. 93-571, 93d Cong., 1st Sess. 76 (1973)).
In view of the foregoing, the conclusion is inescapable that the Congress has not acquiesced in the administrative practice of failing to recognize the ordinary remission of excise taxes as a bounty or grant for purposes of section-303, much less repudiated, or given any signal of its disfavor with, the interpretation of the key language in section 303 by the Supreme Court.
Date for imposition of countervailing duties
The Customs Court ordered that countervailing duties be assessed on the subject electronic products exported from Japan effective the day following the date of entry of its order. Section 516(g) of the Tariff Act of 1930, as amended (19 USC 1516(g)), provides that only merchandise entered for consumption (or withdrawn from warehouse for consumption) after the date of publication of a Customs Court’s decision will be affected. Therefore, the Government argues that the Customs Court’s order in this case “encompasses entries the liquidation of which is not the proper subject of direction by the Customs Court under the enabling statute, which is clearly jurisdictional in its scope and effect.” Appellee contends that entry of the Customs Court’s order constituted “publication” for purposes of section 516(g) and that the Customs Court’s order was proper.
Section 257 of 28 USC provides that all decisions of the Customs Court shall be filed and be open to inspection and that the Secretary shall publish weekly such decisions as he or the court may designate and abstracts of all other decisions. Thus, the statutes distinguish between filing or entry of a decision and publication thereof, which obviously would not occur simultaneously with the filing or entry. Until January 4, 1967, publication was in “Treasury Decisions.” Effective January 4, 1967, the name was changed to “Customs Bulletin” (31 Fed. Reg. 16580).
Although appellee argues that “publication” means “making available to the public,” which would occur upon the filing or entry of *164court orders and decisions, I am satisfied that tfie word “publication” in section 516(g) and tfie word “publish” in section 257 are in pari materia; further, that acquiescence by Congress in tfie Secretary’s practice of carrying out its mandate in section 257 creates a presumption of Congressional approval of that practice. Appellee has provided no evidence clearly showing Congressional disapproval of that practice.
Accordingly affirmance of the Customs Court’s decision and judgment with respect to tfie Japanese commodity tax should be coupled with an order that tfie order of tfie Customs Court with respect to tfie imposition of countervailing duties be modified (1) to become effective tfie day after tfie date of publication of its decision in tfie Customs Bulletin and (2) to provide that assessment of countervailing duties be subject to possible suspension under tfie provisions of 19 USC 1303(d)(2).
The 5 to 40% range referred to by the Customs Court is shown in 1W. Diamond, Foreign Tax and Trade Briefs 84.7 (1977), which notes that the commodity taxes “generally are paid by the manufacturer.’'
This court noted in United States v. Hammond Lead Products, Inc., 58 CCPA 129, 136, C.A.D. 1017, 440 F. 2d 1024, 1029 (1971), that “in tlie case of the countervailing duty assessment, no injury toi domestic Industry need he shown.”
The Notice stated that “Information has heen received . . . which raises a question as to whether certain payments, bestowals, rebates, or refunds granted by the Government of Japan upon the manufacture, production, or exportation of certain consumer electronic products constitute the payment or bestowal of a bounty or grant, directly or indirectly, within the meaning of section 303 of the Tariff Act of 1930 (19 U.S.C. 1303), upon the manufacture, production, or exportation of the merchandise to which the payments, or bestowals, rebates, or refunds apply.”
The broad language could be construed to encompass the Japanese commodity tax.
If the majority remains convinced that the economic result of the remission of the Japanese commodity tax is decisive of the issue "before us, it should at least remand the case to the Customs Court for development of a record on that point, a task that court is specially equipped to undertake. Failing that, I suggest that the rates of the Japanese commodity tax are such as to establish prima facie that the economic impact (e.g. competitiveness of Japanese exports vis-a-vis U.S. manufacturers) of remission of the tax would not be de minimis. Significantly, the United States Tariff Commission (now International Trade Commission) made the following statement in its report to the Senate Finance Committee, 5 TRADE BARRIERS 39 (1974):
For all but a very few U.S. products, the differential between domestic and export prices which is attributable to the exemption of exports from internal comsumption taxes is substantially lower than the price differential found in products of most other major trading nations resulting from the exemption of exports from their domestic consumption taxes. [Footnote omitted.]
In its report, THE FUTURE OF U.S. FOREIGN TRADE POLICY, 90th Cong., 1st Sess. 5 (Comm. Print 1967), the Joint Economic Committee of the Congress stated:
The European Common Market practice of rebating their own indirect taxes on their exports and levying these same taxes on imports — a practice sanctioned, incidentally, by the rules of the GATT— constitutes a conspicuous form of discrimination against U.S. exports. Moreover, similar border adjustments by the United States would be an ineffective weapon, neither mitigating nor offsetting the discriminatory process, because the tax structure of the United States places relatively small emphasis on indirect taxes. This issue is one that the United Stai.es will have to resolve.
“That whenever any country. . . shall pay or bestow directly or indirectly, any bounty . . . upon the exportation of any article or merchandise from such country. . . ." There is no support for the statement in the majority opinion that there was “congressional refusal" to define the words “bounty" or “grant." Customs Law dictates that the common meaning of such words is intended in the absence of evidence to the contrary. United States v. C. J. Tower & Sons, 48 CCPA 87, 89, C.A.D. 770 (1961); Meyer & Lange v. United States, 6 Ct. Cust. Appls. 181, T.D. 35436 (1915). Webster’s International Dictionary (1890) defines “bounty" as:
4. A premium offered or given. . .to encourage any branch of industry, as husbandry or manufactures. It was merely customary legislative practice for Congress to leave it to the Treasury Department, subject to judicial review, to make individual determinations within such a broad definition.
Whether the “hounty or grant” in a particular case would he de minimis (not, therefore, warranting imposition of a countervailing duty) or what the net amount of the “hounty or grant” would he as ahasis for imposition of a countervailing duty is, of course, another matter. Thus, as appellant has shown, the market value of the certificate in Downs was from 1.25 to 1.84 rubles per pood, and the excise tax remitted was 1.75 rubles per pood; whereas, the net hounty determined ranged from only .38 to .50 rubles per pood (T.D. 22814, 4 Treas. Dec. 184 (1901)). It is not disclosed what factors entered into the determination. See F.W. Woolworth Co. v. United States, 28 CCPA 239, C.A.D. 151 (1940).
In Towne v. Eisner, the question was whether a stock dividend made in 1914, against surplus earned before the effective date of the Sixteenth Amendment, was taxable under the Income Tax Act of October 3, 1913. The lower court had decided for the taxpayer, treating the question as inseparable from interpretation of the Sixteenth Amendment. The Supreme Court disposed of the question upon consideration of the essential nature of a stock dividend, disregarding the fact that the dividend involved was based upon surplus earnings .that accrued before the Sixteenth Amendment took effect, and quoting from its opinion in Gibbons v. Mahon, 136 U.S. 549 (1890) as follows:
“A stock dividend really takes nothing from the property of the corporation, and adds nothing to the interests of the shareholders. Its property is not diminished, and their interests are not increased. .. . The proportional interest of each shareholder remanís the same. The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of the new ones." Gibbons v. Mahon, 136 U.S. 559, 560. In short, the corporation is no poorer and the stockholder is no richer than they were before. . . . Whathas happened is that the plaintiff’s older certificates have been split up in effect and have diminished in value to the extent of the value of the new. [Id. at 426-27.1
Paragraph E was substantially the same as section 303 of the Tariff Act of 1930 and as section 303(a) (1) under the 1970 amendment, the statute herein involved. Paragraph E was preceded by Paragraph E of ■section 4 of the Tariff Act of 1913 (38 Stat. 114, 193); section 6 of the Tariff Act of 1909 (36 Stat. 11, 85); and section 5 of the Tariff Act of 1897 (30 Stat. 151, 205). Prior to the latter, paragraph 182 34 of the Tariff Act of 1894 (28 Stat. 509, 521) provided for payment of additional duty on sugar, syrups, and molases where the ■exporting country paid a bounty on the export thereof; and paragraph 237 of the Tariff Act of 1890 (26 Stat. 567, 584) made similar provision in the case of sugar only. In its brief, the Government contends that the 1897 Act was intended to apply to the refund of taxes only to the extent that the “refund” exceeded the •amount of tax actually paid (i.e. the “excessive remission”). This appears to have been so under the specific language of the 1890 and 1894 Acts. However, different language appeared in the subsequent acts, and the legislative history of the 1897 Act cited by the Government can hardly be used now to overturn the Supreme ■Court's interpretation in Downs of “bounty” in the 1897 Act. The Government’s argument, of course, has no application to “grant” (added by the 1897 Act). If it did, it would imply that there was no Congressional purpose in adding “grant” to the language of the statute.
The law also provided for payment of an allowance of two pence per gallon “to any Distiller or Pro* prietor of . . . Spirits on the Exportation thereof from a Duty-free Warehouse, or in depositing the same in a Customs Warehouse.” However, this payment was not involved in the case.
Passmmt held that in determining dutiable value of goods imported from Germany, there should be added to the net invoice price the amount of tax imposed upon the goods when sold by the manufacturer thereof for consumption or sale in Germany hut remitted upon exportation of the goods.
As had the Government in its brief, saying of Downs:
The Russian bounty case was summed up in a single sentence in the opinion (187 U.S. 515): “When a tax is imposed on all sugar produced, but is remitted upon all sugar exported, then, by whatever process, or in whatever manner, or under whatever name it is disguised, it is a bounty upon exportation.”
Cf. E. GRISWOLD, THE JUDICIAL PROCESS 31 (1973): “In many areas precedents, especially ones of a few years’ standing, are not given very great weight. This in turn stimulates litigation on a great mass of questions, j i .”
This statement apparently does not take account of the countervailing duties assessed by Treasury in Downs and the Government’s position in its brief before the Supreme Court in support thereof, wherein the Assistant Attorney General went so far as to say (R 236):
For it seems that any special favor, benefit, advantage, or inducement conferred by the Government, even if it is given as a release from burden and is not a direct charge upon the Treasury, is fairly included in the idea and meaning of an indirect bounty;
If the Secretary concludes that a formal investigation is warranted, ho is to initiate one, make a preliminary determination within six months, and make a final-determination within twelve months.
Hearings on H.B. I6S5 Before the House Committee on Ways and Means, 82d Cong., 1st Sess. 2, 16, 35, and 79 (1951). (H.R. 1535, which would have been entitled "Customs Simplification Act of 1951,” was introduced “by request” of the Secretary.) Hearings on H.R. 6605 Before the Senate Committee on Finance, 82d Cong. 2d Sess. 115,124-125 (1952). (H.R. 5505 supplanted H.R. 1535 as a “clean bill”)
The Department’s representative advised the Senate Finance Committee that an amendment to conform section 303 with administrative practice was needed to make the countervailing duty law fully consistent with Article VI of the General Agreement on Tariffs and Trade. Hearings on H.B. 1812 (“Trade Agreements Extension Act of 1951”) Before the Senate Committee on Finance, 82d Cong., 1st Sess. 11 (1951).
The majority opinion notes an earlier unsuccessful attempt by Treasury in 1950, but says: “Congress' failure to act or even speak against it [tbe Treasury proposal] reflected at least a then-current willingness to allow that administrative practice to continue unabated and unchanged.” Such a comment ignores the principle stated in United States v. Douglas & Berry, supra. The correct conclusion to be drawn from failure of the Treasury proposal is that stated by Judge Newman. See United States v. Adolphe Schwob, Inc., 21 CCPA 116, 120, T.D. 46447 (1933).
Oí particular significance, the report (Vol. VI at 30-31) states:
Several governments provide tax advantages to exporters. This is done usually by exempting or deferring taxes on income from export activities, or rebating other direct taxes associated with the production of exported products, or by accelerated amortization of assets used in production for export;
Under current GATT rules, indirect (consumption) taxes may be rebated (or not collected) on exported products, but rebates of direct taxes (income and certain other taxes) are not permitted. This rule is based on the premise that indirect taxes are fully shifted forward to the consumer, whereas direct taxes are not. To the extent, however, that the forward shifting of the indirect taxes is incomplete, the full restitution of the domestic consumption tax at the border on exported products acts, in effect, as a subsidy of exports. [Footnote omitted.]
The court statedt hat lithargeis at ead oxide, made from refined lead by a simple process and containing 93% primary lead metal. Its main use is in stroage batteries and in the chemical and paint industries.
Following devaluation oí the peso in 1964, Mexico increased export taxes on refined lead for the purpose of maintaining domestic supplies and keeping down domestic prices. Refined lead was made available to domestic users at a price approximating the world price minus what the export tax would have been. Exports of litharge were not subjected to the export tax, so that Mexican litharge producers could offer litharge in other countries at a price predicated on the domestic lead price unenhanced by the export tax.
The dissenting opinion concluded that the Customs Court had jurisdiction of the protest under section 516(b), citing Bradford Co. v. American Lithographic Co., 12 Ct. Cust. Appls. 318, T.D. 40318 (1924). Further, it stated that the Customs Court was correct in concluding that there was a bounty or grant, citing the definitions thereof in Nicholas and Downs, supra.
The statement that a countervailing duty is “penal” was repudiated in a 1972 Senate Finance Committee report. Infra, note 26.
Review can be sought in the Customs Court by “an American manufacturer, producer, or wholesaler of merchandise of the same class or kind as that described in such determination.”
In reporting out the amended bill, the Senate Finance Committee report (S. Rep. No. 92-1221, 92d Cong., 2d Sess. 8 (1972)) stated:
Tho Committee amendment providing judicial review to domestic producers in countervailing duty cases is necessitated because of a 1971 decision of the Court of Customs and Patent Appeals (United States v. Hammond Lead Products, Inc.) holding that judicial review was not available to American producers in countervailing duty cases. The Committee is concerned that the decision might adversely affect the ability of American producers to obtain meaningful relief against subsidized import competition under the Countervailing Duty Law (section 303 of the Tariff Act) because of administrative inaction or insufficient action, or because of excessive delay in the administrative process.
In addition, importers enjoy the right to judicial review in countervailing duty cases under existing law. Tho Committee believes that American producers as well as importers should be permitted to have the right to judicial review in countervailing duty cases as a matter of basic equity and fairness, and as a moans to secure administration of tho law in keeping with the intent of Congress reflected in the broad, explicit and mandatory terms used in section 303.
The Countervailing Duty Law requires the Secretary of the Treasury to assess an additional duty on imports of dutiable articles with respect to which a bounty or grant has been paid. The additional duty must be equal to the amount of tho bounty or grant, thereby neutralizing the artificial advantage afforded the foreign product by virtue of tho subsidy. Consequently, countervailing duties are not, nor were they ever intended to be, penal in nature: they are remedial in nature inasmuch as they operate to offset the effect of subsidies afforded foreign merchandise.