dissenting,
with whom Miller, Judge, joins.With all due respect, the majority opinion ignores the definition of export value set forth in sections 402(b) and 402(f) (1) (A) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. Merely because the appraiser’s finding of value is expressed separately (12 cents per unit invoice price plus 6 cents per unit royalty fee), it cannot be presumed that 12 cents per unit is the statutorily prescribed export value, because such presumption does not logically flow from the appraisement. When an appraising official determines that export value is the sum of two figures, only the total is presumptively the price at which the merchandise is freely sold or offered for sale to all purchasers. See 28 USC 2635, as amended by the Customs Courts Act of 1970:
In any matter in the Customs Court:
(a) The decision of the Secretary of the Treasury, or his delegate, is presumed to be correct. The burden to prove otherwise shall rest upon the party challenging a decision.
Since the appraiser did not accept 12 cents per unit as the proper export value, but instead made an addition to it in determining the correct value, it follows that 12 cents per unit cannot be presumed correct.
Nevertheless, under a judicially developed doctrine which sets the quantum of proof required in order to establish export value in cases involving separable appraisement, importers have been permitted to prove that only a portion of the total appraisement is the correct export value without proving every element thereof. This doctrine is typified by United States v. Pan American Import Corp., 57 CCPA 134, C.A.D. 993, 428 F. 2d 848 (1970). In Pan American, the appraiser determined appraisement by adding 1.9 percent for packing and inland charges (inland freight, insurance, hauling, lighterage, and storage) to the invoice price of the imported merchandise. Importer claimed that the invoice unit price alone represented export value and that the packing and inland charges were non-dutiable. In support of this *45claim, importer submitted two affidavits, wbicb were summarized by the trial judge as follows:
Plaintiffs’ exhibit 1 was signed by Torayuki Fukunaga and states that it was to certify that Arrow International, Ltd., of Kobe, Japan, a trading company purchased from Tsuda Clock Mfg. Co., Ltd., of Nagoya, Japan, for the account of Pan American Import Corp., the merchandise listed on the schedule attached It is further stated that Arrow purchased said merchadise from the manufacturer at the ex-factory prices, net packed, shown on the invoices herein, and that the inland freight, insurance, hauling, lighterage, storage, and other petty charges were paid by Arrow, for the account of Pan American and not to the manufacturer. The schedule attached is a statement by Tsuda Clock Mfg. Co., Ltd., listing shipments made by Arrow of Tsuda’s No. B-268 spinning reels and stating that the ex-factory prices included packaging charges.
Plaintiff’s exhibit 2 is an affidavit executed by H. Tusda, president of K. K. Tsuda Tokei Seizoho (apparently the same concern as Tsuda Clock Mfg. Co., Ltd.). It states:
During the period of September, 1962 through March, 1963 my company sold and delivered to Arrow International Ltd., of Kobe, Japan, certain fishing reels in accordance with the confirmation of order, a copy of which is annexed hereto, marked “A”, and in accordance with the statement annexed hereto, marked “B”. The unit price was ¥313.20 each, as per said confirmation, which price was the ex-factory price for said merchandise, and included all packing charges at our factory. During this same period of time we offered similar merchandise for sale to all persons who wished to buy the same at the same prices.
Our factory, at Nagoya, Japan, is a principal market in Japan for the sale of such merchandise for exportation to the United States. During this period we never sold such or similar merchandise on an F.O.B. port of shipment, Japan, basis. No inland freight charges, insurance premiums, hauling and lighterage charges, and storage or other charges were charged by us in addition to the above. [Pan American Import Corp. v. United States, 58 Cust. Ct. 608, 609-10, R.D. 11269 (1967).]
While these affidavits were persuasive evidence that the packing and inland charges were not part of the purchase price of the imported merchandise, nevertheless, this court held that importer carried an additional burden of proof, viz., to establish that the merchandise was freely sold or offered for sale to all purchasers at prices which did not include the disputed charges. Provided this showing was made, the separability rule would give rise to a presumption that the invoice unit price, which the appraiser found, was the price at which the merchandise was freely sold or offered to all. In sum, even though persuasive evidence of record tended to prove that the packing and inland charges were not part of the purchase price of the imported *46merchandise, nevertheless this court required additional evidence before applying the separability rule in the context of an export value appraisement.
There is no rational distinction between Pan American and the case at bar, and the majority does not attempt to draw one. While Pan American involved disputed packing and inland charges, the present case involves a disputed royalty fee. However, the bonafides of packing and inland charges and of royalty fees depends on whether such or similar merchandise is freely sold or offered for sale to all without these charges.1 Whether the disputed charges are packing and inland charges or royalty fees, an additional quantum of proof is required before the importer can rely on a presumption of correctness of the appraiser’s return with respect to invoice unit price. Were it not for the majority’s abrupt departure from the Pan American doctrine, it would control the present appeal, as I believe it should, and appellee would carry a burden of establishing that the imported merchandise was freely sold or offered for sale to all purchasers at prices which did not include the disputed royalty fees. This burden was not satisfied; indeed, appellee argues, and the majority wrongly concludes, that it does not have the burden.
The Pan American case, of course, does not stand alone in this area of the law. It expressly follows United States v. Bud Berman Sportswear Inc., 55 CCPA 28, C.A.D. 929 (1967) and United States v. Chadwick-Miller Importers, Inc., 54 CCPA 93, C.A.D. 914 (1967). It is followed, in turn, by United States v. Vicki Enterprises, Inc., 61 CCPA 75, C.A.D. 1125, 496 F. 2d 1403 (1974). In overruling Pan American, the majority makes it appear as though that case is an aberration when, in fact, Pan American is consistent with a recent line of cases from this court involving separable appraisement and export value. Apparently, the entire line of cases is, sub silentio, being overruled in derogation of the principle of stare decisis.
Acceptance of appellee’s position makes a mockery of its admission that the correct basis of valuation is export value. The evidence in this appeal relates to a transaction between appellee and Nippon. Appellee does not tell us whether such or similar cloth brush heads are sold or offered, for exportation to the United States,- to any other purchaser. Such sales or offers, if they exist, would be relevant in determining export value. See sections 402(b) and 402(f)(1)(A) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, in the majority opinion, supra. This record is clearly open to the interpretation that there are other purchasers of cloth brush heads in the United States, since the royalty fee paid by ap-*47pellee to Nippon was for the exclusive right to manufacture and sell Miracle Brushes. Other purchasers may buy cloth brush heads and use them in non-patented brushes. However, even assuming arguendo that there are no other purchasers, it would be unrealistic to assume blindly that a single invoice price, i.e., the appraised price of 12 cents per unit, accords with the price at which the merchandise is freely sold or offered for sale. I note that in Article 11 of the license agreement of record, appellee guaranteed to purchase from Nippon between two million two hundred thousand (2,200,000) and three million (3,000,000) units of cloth brush heads per year. Certainly, it cannot be assumed that the invoice price would have been 12 cents per unit had this obligation of appellee been omitted from the license agreement. Compare United States v. Tide Water Oil Co., 19 CCPA 392, 398-99, T.D. 45554 (1932).2 In this regard the following passage from R. STURM, A MANUAL OF CUSTOMS LAW 39 (1974) is germane:
Dutiable value must be found in accordance with the statutes in effect at the time of importation. It is not necessarily the price paid by the particular importer since the price paid may vary from importer to importer as a result of bargaining ability or other factors. Tariff statutes are directed toward finding the price that a willing buyer would pay and a willing seller accept in an uncontrolled market open to all prospective purchasers. United States v. Alfred Kohlberg, Inc., 2 Cust. Ct. 849, Reap. Dec. 4526 (1939), aff’d 37 CCPA 223, C.A.D. 88 (1940); Superior Merchandise Company v. United States, 54 Cust. Ct. 781, A.R.D. 185 (1965).
Appellee relies heavily on H. M. Young Associates, supra, as narrowly restricting Pan American to fact situations where the disputed charges are packing and inland charges. I disagree. As I have already discussed, there is no rational distinction between Pan American and the case at bar, which involves a disputed royalty fee. While this court did say in II. M. Young Associates that “[o]ther 'export value’ cases [other than those involving inland charges] may find the separability rule working to relieve the plaintiff from any requirement to prove that the merchandise was freely sold or offered to all at ex-factory prices,” this language was dictum and hedged with “may.” The separability rule stated in Pan American should control the case at bar.
In H. M. Young Associates appraisement was made under constructed value, not export value, and the parties therein agreed that *48constructed value was tbe proper basis for appraisal. This court disagreed with the Government’s position therein, since the Government sought the effective destruction of the separability rule, i.e., the Government would have required an importer to prove all elements of constructed value in every case. In the present appeal, however, appellant asks only that we apply the separability rule as it has been applied previously in the context of export value appriase-ments. As the majority opinion indicates, H. M. Young Associates discusses the separability rule, its nature, purposes, and sound basis in public policy. Such discussion, however, is made in the context of a constructed value appraisement and, I believe, is logically restricted thereto.
In granting summary judgment for appellee, the Customs Court erred in concluding that the doctrine of separable appraisement relieved appellee from the burden of proving that the imported merchandise was freely sold or offered for sale to all purchasers at prices which did not include the disputed royalty fees. While appellee’s evidence tends to prove that the royalty fee which it paid was not part of the purchase price of the imported cloth brush heads, i.e., that inclusion of the royalty fee in the appraised value was wrong, this is not enough. Appellee must also satisfy its burden of proving that the claimed value is correct. However, appellee has not yet cleared the first hurdle which is necessary for application of the separability rule ■under the Pan American case in order to prove that the claimed value is correct. Accordingly, there remain genuine issues of material fact subject to trial. The judgment below should be reversed and the cause remanded for trial on the merits.
See United States v. H. M. Young Associates, 62 CCPA 20, 24, C.A.D. 1138, 505 P. 2d 721, 725 (1974) and Erb & Gray Scientific, Inc. v. United States, 53 CCPA 46, C.A.D. 875 (1966).
While Tide Water involved export value as defined in section 402(d) of the Tariff Act of 1930, which focused on the price at which merchandise is freely offered for sale to all purchasers, there is no significant difference in the present statute. F.B. Vandergrift & Co. v. United States, 56 CCPA 105, C.A.D. 962, 410 F. 2d 1259 (1969).