DISSENTING OPINION
Mollison, Judge:I regret that I cannot concur in finding of fact and conclusion of law (5) contained in the opinion of the majority, although I am in accord with the preceding findings of fact and conclusions of law (1) to (4), inclusive, and the reasoning which resulted in them.
As stated by the majority, the elements of cost of production covered by paragraphs (1), (2), and (3) of section 402 (f) of the Tariff Act of 1930 as found by the trial court are not in dispute. The only *630contested element is that covered by paragraph (4) of said section 402 (f) relating to profit.
The exporter in the instant case was the sole manufacturer in Mexico of canned tuna fish at or about the time of exportation of the merchandise involved. Hence, the profit “ordinarily added” under the cost-of-production formula is the profit actually added by ike exporter. United States v. Jovita Perez, 36 C. C. P. A. 114, C. A. D. 407.
The trial court based its determination of profit upon the profit made on the American pack, and I agree with the reasoning and conclusion of the majority that under the ruling in the Gottman and Berlc cases, cited in the majority opinion, this was error, and- the determination of profit should have been based upon the amount realized where the greater quantity of the product was sold.
The evidence, specifically exhibit 2, the affidavit of the exporter’s manager, shows that 13,500 cases of tuna fish were canned by the exporter in 1942. It shows that 4,926 cases were sold for export to the United States, and hence there were 8,574 cases left. The majority presumes, and I believe the presumption is warranted, that they were sold in Mexico. However, the majority adopts the figures of 48.50 Mexican pesos per case as the selling price of the solid pack, and 41.50 Mexican pesos per case as the selling price of the flake pack, and calculates profit from these figures. These prices appear in the report of the customs agent, exhibit B, pages 8 and 9, and are stated to include packing, invoice stamp tax of 8.80 Mexican pesos per thous- and pesos of invoice value, and freight from Cape San Lucas to Ensenada, Lower California.
The 48.50 and 41.50 Mexican peso prices are reflected in a tabulation appearing at the end of the report, exhibit B, said to be a list of all sales by the manufacturer from June 15, 1942, to October 15, 1942. According to the report, no record of sales previous to June 15, 1942, was found. The list covers sales of 2,468 cases of tuna fish, of which 442 cases are at the prices noted above, 15 cases at 50 Mexican pesos per case ($10 U. S. currency per case converted at 5 Mexican pesos to one U. S. dollar), 11 cases at 45 Mexican pesos per case, and 2,000 cases at a price of 20.95 Mexican pesos per case sold to E. Pando y Cía of Mexico, D. F., with which firm, it is stated in the report, exhibit B, the manufacturer had a contract to deliver 15,000 cases of solid pack tuna at a price of 20.95 Mexican pesos per case, and 1,800 cases of flake tuna at a price of 16 Mexican pesos per case.
According to paragraph (4) of section 402 (f), supra, the addition for profit in the statutory cost-of-production formula is to be—
* * * equal to the profit which ordinarily is added, in the case of merchandise of the same general character as the particular merchandise under consideration * * *.
*631The majority has omitted jrom the calculation oj profit any consideration of the sales to E. Pando y Cía, assigning as a reason that such, sales to E. Pando y Cía were “at a special price.” According to the report, exhibit B, page 3, the said “special” price was made—
* * * because E. Pando y Cía finances the operations of the Compañía de Productos Marinos [the exporter].
In addition, the majority has disregarded the sales of 15 cases at 50 Mexican pesos per case, and of 11 cases at 45 Mexican pesos per case.
It is clear from the report of the customs agent, exhibit B, that between the importer’s contract for the entire export pack, and E. Pando y Cia’s contract for 16,800 cases of the Mexican pack, the entire output of the cannery in 1942 was really under contract for delivery at fixed prices. It would also appear that, so far as the Mexican pack was concerned, the greater portion thereof was actually delivered under the fixed prices, which resulted in no profit to the manufacturer, but in a loss, this by reason of the fact that the real or actual cost (exclusive of profit) to the manufacturer as shown in the report of Treasury Representative De Lagrave, exhibit A, page 5, was 23.2079 pesos per case.
The following from the foregoing report, which was offered in evidence by the defendant, is very illuminating:
PROFIT
At the time the Cía. de Productos Marinos made its contract with the Marine Products Co. of San Diego, California, the former had calculated that its cost of production during the 1942 season would be 15.8317 Mexican pesos per case. The.selling price to the Marine Products Co. was calculated on a basis to yield the packer, the following profit:
$.65 U. S. Cy per case on Yellowfin $.40 “ “ “ “ “ Standard
$.20 “ “ “ “ “ Flakes
Mr. Cabral informed me that the above were considered as normal rates of profit for these products.
But the real cost was not IS.8317 pesos hut US$079 pesos. This was due to a number of unforseen [sic] events, such as the elimination of the Japanese fisherman, with whom the packer had a contract at a very low price for raw tuna fish. [Italics mine; pp. 4-5.]
The fact that a comparatively small portion — some 468 cases out of 2,468 cases delivered in the period between June 15 and October 15, 1942 — -was sold at higher prices which resulted in a profit to the manufacturer does not seem to me to be sufficient reason for basing the calculation of profit exclusively upon such higher prices.
The adoption by the majority for the purposes of determining profit to be added of the prices of 48.50 and 41.50 Mexican pesos per case based on the relatively small number of 442 cases out of 2,468 cases sold in the period taken, without including in such calculation the *632sale of 2,000 cases of the Mexican pack at 20.95 Mexican pesos per case, is contrary to the applicable rule of law expressed in J. H. Cottman & Co. v. United States and United States v. J. H. Cottman & Oo., 20 C. C. P. A. 344, T. D. 46114, and F. W. Berk & Co., Inc. v. United States, 16 Cust. Ct. 365, Reap. Dec. 6282.
The majority recognizes the validity of these decisions and their applicability, but nevertheless proceeds to disregard the unassailable law enumerated therein by using as a basis for the calculation of the actual profit to be added, the prices received for less than one-fifth (%) of the reported sales of the Mexican pack and ignoring the prices received for four-fifths (%) of the reported sales of the Mexican pack. In adopting the prices received for the smaller one-fifth portion and ignoring the price received for the very much larger four-fifths portion of the reported sales of the Mexican pack, the majority has unduly distorted the actual profit of the manufacturer and exporter in a manner not warranted by the statute or the law.
In fact, the prices obtained for the 468 cases seem to represent an extraordinary situation because of war conditions in 1942 resulting in an extraordinary profit upon a small portion of the cannery’s output. I take note of the fact that 302 of the 468 cases which were sold at the higher prices were sold to purchasers in the border towns of Mexicali and Tía Juana, and the remaining 166 cases were sold to purchasers in Ensenada, which is something of a tourist and holiday resort, which fact seems to high light the conclusion that such sales were extraordinary, rather than ordinary.
I believe that if a calculation of profit is to be made based upon the available evidence with respect to sales in Mexico, the sales to E. Pando y Cía should be taken into consideration as representing the profit ordinarily added by the particular manufacturer. These prices of 20.95 Mexican pesos per case for the solid pack and 16 Mexican pesos per case for the flake pack are less than the bare (without profit added) cost to the Mexican manufacturer of a case of canned tuna as reported by the treasury representative in exhibit A and as found by the majority, i. e., 23.2079 Mexican pesos per case, and hence it would appear that there was a loss instead of a profit realized by the particular manufacturer upon the sales to E. Pando y Cía, which apparently formed the bulk of the sales of the 1942 Mexican pack.
Accepting as a fact the statement in the report, exhibit B, that the prices to E. Pando y Cía were special prices given by reason of the fact that E. Pando y Cía financed the operations of the exporter, I do not believe that that fact affects at all the result of our inquiry into the profit “ordinarily added” by the particular manufacturer. We are not limited in this inquiry to the profits made upon free offer of the merchandise in the open market; we are to determine the profit “usually added,” and in this case the profit actually added by the *633exporter of tbe merchandise involved herein. United States v. Jovita Perez, supra. In this case, because of contracts made, the manufacturer sold the bulle of its goods at a loss. There is no suggestion or proof that the sales to E. Pando y Cía were deliberately made at a loss and that hidden profits were ultimately returned to the manufacturer, and under these circumstances I am satisfied that the sales to E. Pando y Cía must be taken into consideration in determining the item of profit.
In arriving at the bare (i. e., without profit added) cost of production, actual as distinguished from statutory, as reported in exhibit A and accepted by the majority, there was no attempt to distinguish the cost of production of the solid pack from that of the flake pack. In his affidavit received in evidence as exhibit 2 the general manager of the exporter states—
Although as packed for the American pack the tuna was divided into three grades: fancy solid pack, standard, and flakes in order of the favor which the different forms were received by the consuming public the fish was bought by the ton and the same price was paid per ounce whether the part of the fish received was an unbroken chunk of yellowfin or a worthless fin or. tail which was suitable merely for use as fertilizer.
It is also indicated that for practical purposes the labor and other costs entering into the production of the solid pack and the flake pack were the same, and that this was true whether the American pack or the Mexican pack was under consideration. It may be said, therefore, that the cost of production was the same whether the product was the solid pack or the flake pack or was for the American or Mexican market.
The two packs, solid and flake, however, brought different prices in the Mexican market. The only evidence of actual sales made in the Mexican market is contained in exhibit B, the customs agent’s report, which lists sales made from June 15 to October 15, 1942, of 2,468 cases out of the 1942 Mexican pack of 8,574 cases. Of these 2,468 cases, 2,425 were of the solid pack and 43 were of the flake pack. Of the 2,425 cases of solid pack sold—
2,000 cases were sold at 20.95 Mexican pesos per case 399 “ “ “ “ 48.50 “ “ “ “
15 “ “ “ “ 50.00 “ “ “ “
(i. e., @ $10 U. S. cy. converted at 5 to 1)
11 cases were sold at 45.00 Mexican pesos per case
All 43 cases of the flake pack were sold at 41.50 Mexican pesos per case.
In view of the fact that no distinction was made in calculating the bare (without profit added) cost of production of the solid and flake packs, it would appear that in order to determine the actual profit made there should be no separate calculation of the profit made on *634each pack, that is to say, the total selling price of the 2,468 cases should be divided by 2,468 to determine the actual profit made per case, which profit should be the figure used in the calculation of statutory cost of production.
The total selling price of the 2,468 cases shown in the customs agent’s report, exhibit B, was 64,281 Mexican pesos, which, when divided by 2,468 equals a selling price per case of 26.0467 Mexican pesos. Taking the actual cost of production as shown in exhibit B, 23.2079 Mexican pesos per case, from the actual selling price as shown above, 26.0457 Mexican pesos per case, leaves a profit of 2.8378 Mexican pesos per case.
The court below found, and all agree, that the sum of the amounts involved in the items covered by paragraphs (1) and (2) of the cost-of-production statute is 19.5969 Mexican pesos per case, and as 2.8378 Mexican pesos is an amount in excess of 8 per centum of this sum, it is the addition which is to be adopted as the profit ordinarily added under paragraph (4) of section 402 (f).
The calculation of cost of production under section 402 (f), supra, would therefore be as follows:
Sec. 402(f), Par. Amount
(i) Cost of fish_ 10.7685 Mexican pesos
“ “ other materials 2.3302
“ “ labor... 1.7972
(2) General expenses_ 4.7000 “ “
(3) Cost of containers_ 5.1125
(4) Profit_ 2.8378 “ “
Statutory cost of production_ 27.5462 “ “
I would therefore support a judgment in the foregoing amount modifying the judgment below accordingly.