DISSENTING OPINION
Eicwall, Judge:I am unable to agree with the opinion of the majority in this case, for the following reasons.
Judge Tilson in his decision held that no foreign value existed for these or similar steel bars for the reason that the market in Germany for this merchandise was restricted and that no similar merchandise was sold in Germany for home consumption. He further held that although such steel bars might have been offered at different prices on the same day, he was not precluded from using evidence of such offers in finding a value for the merchandise. Certain unrestricted offers to all purchasers of the instant merchandise, as set forth in collective exhibit 35 herein, were held to constitute export values within the meaning of that term as. defined in the statute. The question of whether or not there was a United States value was not passed upon.
The evidence in the record before us consists of over 300 pages of oral testimony together with 53 documentary exhibits. A detailed *327statement of the said exhibits would serve no useful purpose and only extend this decision unnecessarily.
Inasmuch as the appraiser found foreign value to be the basis of appraisement, I have examined the record in order to find whether any foundation exists for that finding. The record discloses that during the export period here involved, i. e., the years 1937, 1938, and 1939, minimum prices for commercial steel bars were fixed throughout the world by an International Steel Syndicate, the headquarters of which was at Luxemburg. This syndicate was subdivided into several National Steel Syndicates with headquarters in each of their respective countries. The national syndicate in Germany was known as the Stahlwerksverband of Dusseldorf. This is a cartel having as its members all the manufacturers of steel bars in Germany. The purpose of the Stahlwerksverband is to control and direct the entire disposition of all steel bars manufactured in Germany from the time of manufacture to the time of consumption in Germany. Not only are the prices and conditions of resale to wholesalers controlled but also the prices and conditions of resale at which the merchandise is sold by the wholesaler to the retailer and the consumer. Penalties for violations of prices and restrictions are fixed by the Stahlwerks-verband and the Association of German Steel Wholesalers, which are made known to purchasers at the time the steel bars are offered for sale, the restrictions being imposed at the inception of the movement of the merchandise into commerce. This is the usual course of trade in offering and selling these commodities for home consumption in Germany. Further, it appears from the evidence that all sales of steel bars by Stahlwerksverband and its members for export to foreign countries other than the United States were made with the restriction that the purchasers could not resell for export to third countries.
It is clear to me that the sale of steel bars for home consumption in Germany is completely controlled as to price and use from manufacturer to consumer, and that sales to countries other than the United States are all made with a prohibition against export to any third country. Therefore, there is no foreign value for this merchandise. This conclusion was arrived at by both Judge Dallinger in his order, Cox & Fahner (Steel Union Sheet Piling, Inc.) et al. v. United States, 9 Cust. Ct. 492, Reap. Dec. 5665, and by Judge Tilson in his decision below.
Appellees claim that an export value exists for these steel bars. The Government contends in its brief that syndicate supervision and minimum prices apply on all markets, and that, therefore, they constitute a sufficient restriction and control which would preclude a finding of statutory foreign value, and likewise defeat the evidence of statutory export and United States value. This same contention was made before Judges Dallinger and Tilson. In arriving at a *328determination of this question, Judge Dallinger used the following language:
* * * It is true that there was an “International Raw Steel Cartel,” but according to the report of the Treasury representative, Karl M. Richards (defendant’s exhibit 40), the said cartel included Belgium, France, Germany, Luxemburg, England, Poland, and Czechoslovakia. In other words, this so-called international syndicate was only an international European syndicate. To be sure, the plaintiffs’ witness Barreau did testify on cross-examination that it was his “impression” that there existed a United States syndicate for export business. But a witness’ impression cannot be accepted as evidence of the fact.
In its 1936 sales agreement (exhibit 1) the “Stahlunion-Export G. m. b. EL,” the foreign seller and exporter herein, inserted in section III a proviso requiring its permission for export from the United States to other countries. The 1936 agreement between the exporter and importer (exhibit 20) does not contain such a proviso. Moreover, it appears that such a restriction was not in force on the dates of exportation herein, because paragraph 6 of article 35 explicitly states that there was no restriction of sales of such steel bars exported to the United States.
It is further contended on the part of appellant in the brief filed that the exporter herein does not freely offer such or similar steel bars to all purchasers for exportation to the United States, but limits its offers and sales to three territorial distributors only. Therefore, it claims that no export value exists for the steel bars here involved. In passing upon this point, Judge Dallinger in a finding agreed to by Judge Tilson, held that these sales did not constitute a restriction in the sale of such or similar merchandise for export to the United States. Judge Dallinger made use of the following language:
Counsel for the Government also raises the point that during the years 1937, 1938, and 1939, the export periods involved herein, the foreign exporter herein sold German steel bars for exportation to the United States to three territorial distributors only, to wit, Steel Union Sheet Piling, Inc., the importer herein, Steel Union, Inc., of Los Angeles, Calif., and Cron & Dehn of Seattle, Wash., and that therefore there existed no freely offered price to all purchasers for export to the United States, citing the case of United States v. Malhame & Co., 24 C. C. P. A. 448, T. D. 48911.
It is to be noted, however, that the sales agreement with each of those concerns covers a variety of steel products, each agreement expressly reserving the right of direct sale by the foreign exporter, sales of a number of said products being made to other purchasers.
Furthermore, paragraph 6 of exhibit 35 expressly declares that such or similar steel bars to those involved herein were freely offered for all purposes [to all purchasers] for export to the United States without any restrictions as to resale. For this reason I am of the opinion that the case of United States v. Malhame & Co., supra, has no application to the facts established herein.
For the above reasons I am satisfied that at the time of the exportation of the instant merchandise there was no restriction on the sale of such or similar merchandise for export to the United States.
A careful perusal of the evidence submitted leads me to the conclusion that the finding of the court below that an export value *329existed at the time of exportation for these steel bars; is supported by substantial evidence.
Judge Tilson found values for the merchandise as follows:
Jan. 1937 to Sept. 1937-$1.20 per 100 lbs. ex mills
Oct. 1937 to Aug. 1938_$1.42 per 100 lbs. ex mills
Sept. 1938 to Sept. 1939-._$1.22 per 100 lbs. ex mills
plus the following extras:
Steel Bounds and Squares:
Yis inches thick_32 cents per 100 lbs.
yi inches thick_ 22 cents per 100 lbs.'
Yia inches thick_ 16% cents per 100 lbs.
% inches thick- 11 cents per 100 lbs.
% inches thick-6% cents per 100 lbs.
3%e to 6' inches thick_ 6% cents per 100 lbs.
Steel Flats:
5 to 6 inches wide by % to less than 1 inch thick. _ 6% cents per 100 lbs.
1% to 6 inches wide by 1 to 1% inches thick_5% cents per 100 lbs.
1% to 6 inches wide by over 1% to 2 inches thick. _ 11 cents per 100 lbs.
The record discloses that steel bars when sold for export to the United States are sold at a base price for certain so-called base sizes, with various “extras” for larger or smaller sizes. These extras are set forth in exhibit 8 in evidence and also appear with the base prices in paragraph 6 of exhibit 35. The testimony discloses that in billing, however, it frequently happened that an average price was used to cover an assortment of sizes rather than setting forth the ba.se price and the individual extras. The actual values of the bars were therefore the individual values which went to make up the average price. In determining export value, the base price for export must be first determined to which can be added the applicable additions for extras.
Collective exhibit 35, an affidavit of Adolph Schmidt, manager of Stahlunion-Export G. m. b. H. relative to the sale of steel bars by that concern for export from Germany to foreign countries, sets out in paragraph 6 thereof the base prices of such steel bars, which the affiant states are freely offered to all purchasers for export to the United States, without any restrictions as to disposition. Those prices were:
January 1937 to September 1937_$1.20 per 100 lbs ex mills
October 1937 to August 1938_$1.42 “ “ “ “ “
September 1938 to September 1939_v $1.22 “ “ “ “
Collective exhibits 10, 11, exhibits 12, 22, 23, and collective exhibit 24 list all the actual sales of steel bars by Stahlunion-Export G. m. b. H. to Steel Union Sheet Piling, Inc., and to Steel Union, Inc., during 1937, 1938, and 1939.
Erom these exhibits it appears to me that in only two instances were sales made for export at base prices above $1.50 per 100 pounds.
*330The court below found that the fact that the statement of the affiant Schmidt that such or similar merchandise was freely offered for sale to all purchasers for export to the United States at certain specified base prices, plus certain extra amounts varying according- to the thickness of the steel bars in question, is not borne out by the prices set forth in the invoices attached to said affidavit, would not preclude the court from considering said invoices in finding a value for this merchandise. In this finding I concur. The fact that selling prices vary somewhat between one sale and another is no bar to a finding of export value based upon such sales. The courts have upon numerous occasions determined the value of merchandise even though sales prices were not uniform. In such cases the price at which all purchasers could buy is the highest price.
In the case of Wm. J. Oberle, Inc. v. United States, 5 Cust. Ct. 576, Reap. Dec. 5042, the court had under consideration certain olera imported from Cuba. There was in evidence in .that case a list of 36 sales of similar merchandise, with prices ranging from $0.85 a hamper to $1.40. The court there said:
* * * Within, the judicial interpretation of the statutory phrase, “to all purchasers,” as set forth in the case of United States v. Mexican Products Co., 28 C. C. P. A. 80 (C. A. D. 129) and the cases therein cited, the freely offered price of the merchandise in question for exportation to the United States to all purchasers in said usual wholesale quantity is $1.40 per hamper, packed, and we so hold.
To the same effect are the cases of United States v. A. W. Faber, Inc., 21 C. C. P. A. 290, T. D. 46817, and United States v. American Glanz-stoff Corp., 24 C. C. P. A. 35, T. D. 48308.
Said collective exhibit 35 states the extras which are to be added to the basic prices above given to be as follows:
Steel Bounds and Squares:
<Ko inch thick_32 cts per 100 lbs.
“ “ _22 “ “ “
s/ig “ “ _ 16y2“ “ >
ys “ “ _ 11 “ “ “
y2 “ “ ____5 % “ “ “
% to 3 ]4 inches thick_1-no extra
3%o to 6 inches thick_ 6J4 cts per 100 lbs.
Steel Flats:
5 to 6 inches wide by J4 to less than 1 inch thick_6)4 cts per 100 lbs.
1% to 6 inches wide by 1 to 1J4 inches thick_5)4 “ “ “
1)4 to 6 inches wide by over 1)4 to 2 inches thick-11 “ “ “
A comparison of the freely offered prices as set forth in paragraph 6 of collective exhibit 35 with the prices on the invoices attached to said exhibit, as set out in column 11 of collective exhibits 10, 11, and exhibit 12, in my opinion, will disclose that there is very little difference *331between tbe values given in tbe affidavit and those set forth on the attached invoices. (See column 14 of collective exhibits 10, 11, and exhibit 12 which sets forth unit prices per 100 pounds c. & f. United States ports; columns 23 and 25 setting forth freight and insurance per 100 pounds, respectively; and column 11 of these exhibits setting forth the unit prices ex works Germany per 100 pounds.)
Although it is unnecessary in view of the conclusion I have reached, i. e., that export value is the proper basis of valuation in this case, I deem it proper to express my views on the question of the existence of a United States value for these steel bars, in the event of an appeal to the United States Court of Customs and Patent Appeals. Lengthy discussions on this point would only serve to extend this decision unnecessarily. However, it is my opinion, in view of the evidence that when these steel bars are ordered in the United States, such merchandise is not in existence, as it is customary in the steel business to start rolling after the order is taken, that no United States value as defined in section 402 (e) of the Tariff Act of 1930, exists for this merchandise. The merchandise is imported subsequent to the order in all instances. Therefore, there was no prototype merchandise such as or similar to the instant merchandise available in the United. States at the time of the placing of the orders in this country, or at the time of exportation of this merchandise. Under such circumstances, it has been held that there can be no United States value for the commodity. See United States v. New York Merchandise Co., Inc., 31 C. C. P. A. (Customs) 213, C. A. D. 274.
Upon consideration of. all of the evidence, including the special agents’ reports, I arrive at the following conclusions:
The merchandise consists of steel bars, described as rounds, flats, and squares, exported from Germany during the years 1937, 1938, and 1939, which were appraised on the basis of foreign value at 115 reichsmarks per 1,000 kilos, less 3 per centum cash discount.
For the reasons above set forth, it is my opinion:
1. That at the time of exportation of these steel bars there existed in Germany, the country of exportation, no foreign value therefor.
2. That said steel bars were freely offered for sale, packed ready for delivery in the principal market of Germany, .to all purchasers at the dates of exportation of said merchandise, in the usual wholesale quantities, i. e., one ton per size and up, in the ordinary course of trade at the prices following, and that such prices represent export value as defined in section 4Ó2 (d) of the Tariff Act of 1930:
Jan. 1937 to Sept. 1937- $1.20 per 100 lbs. ex mills
Oct. 1937 to August 1938_$1.42 per 100 lbs. ex mills
Sept. 1938 to Sept. 1939_ $1.22 per 100 lbs. ex mills
plus the following extras:
*332 Steel Rounds and Squares:
fie inches thick_32 eents per 100 lbs.
K inches thick_22 cents per 100 lbs.
Yw inches thick_ 16)4 cents per 100 lbs.
% inches thick_ 11 eents per 100 lbs.
Yi inches thick_6}4 cents per 100 lbs.
3%o to 6 inches thick_ 6)4 cents per 100 lbs.
Steel Flats:
6 to 6 inches wide by J4 to less than 1 inch thick. _ 6)4 cents per 100 lbs.
1% to 6 inches wide by 1 to 1)4 inches thick_5)4 cents per 100 lbs.
1)4 tor6 inches wide by over 1)4 to 2 inches thick. 11 cents per 100 lbs.
I think the decision of the trial court should be affirmed.