DISSENTING OPINION
Cole, Judge:While I am in sympathy with the objective sought to be accomplished by the majority, i. e., to require, if possible, the appraiser to indicate upon the official papers what particular statutory value he found in his official appraisement, I most respectfully disagree with the conclusions reached herein.
*431The majority opinion upholds the action of the trial court in denying plaintiff’s motion to restore the cases to the calendar for a de novo appraisement by the court, thereby affirming the consideration of the case by the trial judge, as following the intent of the mandate of the appellate court. However, the decision then continues with a discussion of the proposition, concerning the action of the appraiser and the omission of a notation on the official papers showing the statutory value adopted in appraising the merchandise. This is the identical point so very thoroughly discussed by the second division in its earlier decision, Joseph Fischer et al. v. United States, 11 Cust. Ct. 329, Reap. Dec. 5881, reviewed by the Court of Customs and Patent Appeals, United States v. Joseph Fischer et al., 32 C. C. P. A. 62, C. A. D. 286. As a matter of fact, one of the assignment of errors (number 5) presented to the Court of Customs and Patent Appeals related to the conclusions of law reached by the appellate division of this court in its reference to the duties of an appraiser in ascertaining the value of imported merchandise.
Following its discussion in Reap. Dec. 5881, supra, with respect to what the appraiser did or did not do in finding the value of the instant merchandise — emphasizing particularly his failure to indicate the statutory value Iris figures represent — the second division, as the appellate tribunal reviewing the decision of the late Judge Thomas J. Walker, in Joseph Fischer et al. v. United States, 8 Cust. Ct. 678, Reap. Dec. 5614, made the following significant statement:
While we are not prepared to hold that an appraisement wherein the basis thereof does not appear is illegal, null and void, we must, and do hereby hold that such an appraisement is erroneous.
There is further significance attached to the following statement made by the Court of Customs and Patent Appeals in its decision, C. A. D. 286,supra:
As we understand its decision, the appellate division of the Customs Court held that the appraisements by the local appraiser, while erroneous, were not illegal and void.
There can be no doubt that the procedure followed by the appraiser in making his official finding in the present case was definitely a part of the record before the appellate court, and the very point now raised and given controlling influence by the majority was previously presented with the same force and effect as it is here offered. In fact, most of the language assigned to support the present disposition of the 113 appeals affected thereby, is identical with that which was actually and properly before the appellate court at the time of its decision, said C. A. D. 286. The Court of Customs and Patent Appeals did not direct that these appeals be remanded for .additional proof clarifying the appraiser’s official action.
*432Regardless of how advisable it appears to be for appraisements, in cases such as this record presents, to disclose to the court what particular statutory value the applied figures were intended to support, and my complete agreement with such procedure in all appraisements I do not believe the opportunity to do that in this case is any longer-available. I quote from the opinion of the Court of Customs and Patent Appeals, C. A. D. 286, sufra.
We are of opinion that, although the values returned by the local appraiser may not be correct, he had the authority to appraise the merchandise in its condition. as imported in the unit of quantity in which such or similar merchandise is usually bought and sold in the country of exportation by estimating the shrinkage thereof from the time of exportation to the time of importation, if, by so doing, the dutiable values might be properly ascertained. We know of no statute or regulation, which prohibits such action on the part of the appraiser. Furthermore, there is-nothing whatsoever in the record to indicate that the values returned by the appraiser are not the proper dutiable values of the merchandise. [Italics added in last sentence.]]
Should the trial judge proceed as the majority directs, it is conceivable that no additional testimony would become available, and it is-likewise conceivable that if additional testimony, as suggested, be-furnished, it would supply nothing whatever to change the money-value found by the appraiser, which has been adjudicated and finally-upheld by the appellate court, but simply enter as a part thereof which, of the values defined in section 402 of the Tariff -Act of 1930, as amended (19 U. S. C. § 1402), the appraiser had in mind. Such an addition, to the record by the appraiser at this time cannot affect appraised values heretofore found and, as I have stated, subsequently adjudicated as correct.
It is my opinion, therefore, that the trial judge acted correctly in. determining the values of the merchandise covered by the appeals-relating to appraisements made after the effective date of the Customs-Administrative Act of 1938 (July 25, 1938).
As to the five cases in which no appraisement was made and which, the trial judge has dismissed as “premature,” ordering that “the-papers will be returned to the collector for the purpose of having the-merchandise appraised in accordance with the law,” the opinion of the majority comments that such action “is not in accordance with the-decision of our appellate, court.” It can hardly be disputed that the-said 5 cases were erroneously included in the 75 ordered by the appellate court to be dismissed for reasons assigned in its opinion, but that, they should be dismissed for the reason assigned by the trial judge.
The judgment of the trial court should be affirmed.