*312DISSENTING OPINION
Cline, Judge:I regretfully dissent from the majority.
The evidence shows that the silk was originally imported from Japan into England where it was printed and dyed according to patterns supplied by the respective purchasers. It was the custom of the trade to enter into contracts of purchase at fixed basic prices. The patterns were selected later, an order was entered, and the merchandise was made up for export. In the instant case the contract dates are January 23, 1941, and September 19, 1941. The orders were entered April 9, 1942, and the goods were exported on October 1, 16, and 30, 1942.
The goods were appraised on the basis of export value. The importer claims that export value is the correct basis of appraisement but contends that it is represented by the entered values in reap-praisement No. 151146-A and the claimed values in reappraisement Nos. 152201-A and 152202-A. As an alternate claim, plaintiff contends that the dutiable value is the cost of production.
The evidence discloses the following situation in regard to this material. In July 1941, the British Government prohibited the importation of silk from Japan, and manufacturers could sell only what ‘they had on hand and goods then in transit. An affidavit of Frank Leslie Freegard of A. O. Aldwinckle & Co., Ltd., manufacturer of the merchandise here involved, states that the remainder of the merchandise they had on hand was sold on February 4, 1942, to Franc-Strohmenger and Cowan, Inc., and that since that time no sales or offers to sell have been made by them. An affidavit of Arthur Charles Davis of Brocklehurst-Whiston Amalgamated, Ltd., a competing firm, states that the balance of their material was sold in November 1941. Other uncontradicted evidence indicates that such merchandise was not freely offered in October 1942; that it was impossible to buy it; and that there were no offers of the merchandise later than 2 or 3 weeks after the freezing order.
Since there is evidence that this material was not sold for home consumption, the first question to be considered is whether or not an export value existed at or near the date of exportation (October 1942). Mr. James McCurrach stated that only three or four or five people sold this type of merchandise. The above-mentioned affidavits from two of them indicate that they had nothing to sell in October 1942. Mr. McCurrach testified that no offers to sell were made in October 1942; that by October 1942 no trace of the material existed. Section 402 (d) of the Tariff Act of 1930 provides that the export value shall be the market value at the time oj exportation at which such or similar merchandise is “freely offered for sale to all purchasers.” In October 1942, such or similar merchandise was not being offered, freely or otherwise. How then can an export value be found ?
*313I do not think the case of White, Lamb Finlay, Inc. v. United States, 29 C. C. P. A. 199, C. A. D. 192, can have any application to a situation like this. In that case it was held that where the market value changed between the date of purchase and the date of exportation in the case of goods offered for sale for future delivery, the market value on or about the latter date must be taken for appraisement purposes. There, however, at the date of exportation goods were available and were being offered for sale. Here they were not.
The examiner testified that the advances were made on the basis of an importation by Bachrach Co. from Brocklehurst-Whiston under contract of purchase dated November 25, 1941, which was the last sale made by that manufacturer. Aldwinckle’s last sale was made subsequently, on February 4, 1942, at a price less than that charged by Brocklehurst-Whiston. It cannot be presumed, therefore, that the Brocklehurst-Whiston price was the existing quoted price on the date of exportation.
Plaintiff's contention seems to be that the last sales of the merchandise must be disregarded and the price prevailing while there still were goods available, accepted as the export value. Such a value would be based upon a presumption that the goods would have been offered at such prices on the date of exportation had there been any to offer. Clearly, the court cannot make a finding on the basis of such a presumption.
On the record in this case, I do not see how any price can be presumed to have existed on the date of exportation, since nothing was then being offered for sale. It follows that at the time of exportation, there was no export value for the merchandise. Plaintiff has failed to prove its main contention that its claimed export values are the dutiable values.
Although plaintiff has failed to establish a dutiable export value, as claimed, and the appraisement has been shown to be erroneous, section 501, Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, provides that the single judge shall “notwithstanding that the original appraisement may for reasons be held invalid or void” determine the value of the merchandise. There is some evidence in the record as to cost of production, but it was not passed upon by the trial court. Therefore, insofar as the silk foulard is concerned, the judgment of the lower court should be reversed and the case remanded to the trial judge for further proceedings not inconsistent with this decision.
The situation in regard to the wool cashmere is different. There is no evidence that this material originated in Japan or that the British embargo applied to it. The affidavit of Frank Leslie Freegard, sworn to February 25, 1944, states that his firm was then still engaged *314in the production and sale of hand-printed wool cashmere similar to the merchandise involved herein.
The wool cashmere herein was contracted for on November 10, 1939, the order was entered April 9, 1942, and the merchandise was exported on October 1, 1942. The Government offered in evidence an invoice and entry papers in entry No. 701008 involving simdlar merchandise exported by the same manufacturer as in the instant case. The contract for that merchandise was made on January 30, 1942, the order was entered February 24, 1942, and the material was exported on June 22, 1942. The invoice prices there were higher than those in the instant case. It is plaintiff’s contention that the appraiser erred in advancing the value of the instant merchandise— two colored, dyed, blotched cashmere — to 6/lld., when he passed three colored cashmere in entry No. 701008 at 6/2d. and four colored at 6/8d. However, there is nothing to show that the appraiser’s advance was based solely on this invoice, nor has plaintiff produced any evidence of market value on the date of exportation. The presumption in favor of the appraiser’s action has not been overcome and judgment should be rendered for the Government on this phase of the case.