Canned pumpkin, exported from Canada in May 1945, was entered at the port of Detroit, Mich., where it was appraised on the basis of foreign value, section 402 (c) of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938 (19 U. S. C. § 1402 (c)), at $1.30 (Canadian currency) per dozen tins, less 2}i per centum cash discount, less one-fourth of 1 per centum discount for leaks and swells, plus 8 per centum Canadian sales tax.
*474The case is before us at this time as a review of F. W. Myers Company, Inc. (F. H. Leggett & Co.) v. United States, 22 Cust. Ct. 368, Reap. Dec. 7646, in which the appraised value was affirmed.
The trial judge, in a well-reasoned opinion, set forth a complete and an accurate analysis of the proof offered by the respective parties. Pertinent phases thereof will be referred to in our disposition of the issues.
Here, as in the court below, appellant claims that statutory foreign value is removed from consideration because at the time of exportation of the present merchandise the Canadian market was controlled, and that therefore export value, as represented by the invoice price- of $1 (United States currency) per dozen tins, is the proper basis for appraisement.
As support for the contention that the foreign market was controlled, appellant points to the affidavit, exhibit 2, executed by the'Canned Food Sales Manager of Canada Packers, Ltd., Canadian exporter, of the shipments under consideration, wherein the witness states that at the time of exportation of the canned pumpkin in question, such or similar merchandise “was offered for sale and sold by Canada Packers Ltd. as canners to all wholesalers in Canada” in any quantities at a. price of $1.05 a dozen cans, less certain discounts and plus the Canadian sales tax of 8 per centum; that “during this same period Canada Packers Ltd. as Wholesalers offered and sold such or similar canned pumpkin to all Retailers in Canada in any quantities at a price of $1.30 a dozen cans”; and that such prices were ceiling prices “allowed by the Wartime Prices and Trade Board of Canada.”
Giving to the foregoing testimony a view most favorable toward appellant’s position, it can be said that the Wartime Prices and Trade Board of Canada established a price schedule, setting forth ceiling prices under different categories. However, merely fixing such initial prices did not destroy a statutory foreign value for the merchandise in question and will not bar a finding of such value as contemplated by section 402 (c), as amended, supra. United States v. Michele Diagonale, 22 C. C. P. A. (Customs) 517, T. D. 47497. That the cited case fixed minimum prices, while maximum prices were established for the present merchandise, is not material. The principle applied there has equal force and effect here.
A foreign market has been held to be a controlled one where sales for home consumption were conditional upon the use, resale, or disposition of the merchandise. United States v. Graham & Zenger, Inc., 31 C. C. P. A. (Customs) 131, C. A. D. 262; United States v. Half Moon Mfg. & Trading Co., Inc., 28 C. C. P. A. (Customs) 1, C. A. D. 115. The Graham & Zenger, Inc. case, supra, emphasizes the principle in this statement: “The very essence of freedom is taken from a sale of goods accompanied by any restraint with respect to its resale, *475use or other disposition, regardless of the source of such restraint.” In this case, none of those controls was exercised over sales for home consumption in the Canadian market. On the contrary, the merchandise was freely offered without the restrictive elements that have been consistently recognized as factors removing foreign value from consideration.
The Treasury representative’s report, exhibit 3, presents the activities of the Canadian exporter in the principal market of Toronto, on sales for home consumption, in a somewhat contradictory light from the merchandising procedure given in appellant’s affidavit, exhibit 2,. supra, particularly as the report quotes from a letter received from' the foreign exporter’s traffic manager, stating that canned pumpkin was freely offered in carload quantities to anyone in Canada at a price of $1.05 (Canadian currency) a dozen cans, although no sale in such quantity was ever made in Canada; and that of 27,200 cases of the fall pack of 1944, all were sold to purchasers in the United States, except 3,465 that were sold in lots of from one to five cases to retail butchers at $1.30 per dozen. No mention is made about ceiling prices fixed by any Canadian wartime agency, and the report concludes with a statement to the effect that during 1945, the greatest number of sales was to Canadian dealers at $1.30 per dozen.
Based upon this record which — and this is to be emphasized — :is void of any proof, oral or documentary, concerning rules, regulations, or procedure, issued by the "Wartime Prices and Trade Board' of ■Canada, we agree with the trial judge in the statement that “it is not .clear that all purchasers could not have bought at $1.30 a dozen.” Accordingly, we find foreign value to be the proper basis for appraisement of the merchandise in question, and hold such value to be the appraised value, less the Canadian sales tax of 8 per centum, which appellee concedes has no application.
For the foregoing reasons, we find as matter of fact:
(1) That the merchandise in question consists of canned pumpkin exported from Canada.
(2) That at the time of exportation thereof, such or similar merchandise was freely offered for sale and sold in the principal market of Toronto, Canada, for home consumption, without restriction as to resale, use, or disposition. ■
(3) That foreign value, section 402 (c), as amended, supra, is the proper basis for appraisement of the merchandise in question.
Accordingly, we hold as matter of law:
(1) That the foreign market at the time of exportation of the canned pumpkin in question was not a controlled market.
(2) That the statutory foreign value for the present merchandise ■is the appraised value, as held by the trial judge, less the Canadian sales tax of 8 per centum.
*476To the extent indicated, the judgment of the trial judge is modified. Judgment will be rendered accordingly.