DISSENTING OPINION
Oliver, Chief Judge:This opinion was originally prepared by me as the opinion of the court, but as my associates do not agree with me, it is now being filed as a dissenting opinion with only minor and necessary changes.
The involved merchandise consists of three shipments of canned pumpkin exported from Canada during the month of May 1945 by *477Canada Packers, Ltd. In each, case, the merchandise was invoiced at $1 (United States currency) per dozen tins, entered at $1.05 (Canadian currency) per dozen tins, plus 8 per centum Canadian sales tax, and appraised on the basis of foreign value at $1.30 (Canadian currency) per dozen tins, less 2% per centum cash discount, less one-fourth of 1 per centum discount for leaks and swells, plus 8 per centum Canadian sales tax.
The Government has conceded that in no event does the Canadian sales tax apply.
The contention by the plaintiff-appellant, both before the trial court and here, is that there was no price at which such canned pumpkin was freely offered for sale to all purchasers in Canada, but that the merchandise should be valued on the basis of export value and that the invoice price in each instance represents said export value.
The trial court held, insofar as the offers and sales for consumption in Canada were concerned, that there was no evidence in this record of any restrictions on the use, disposition, or resale of this merchandise; that the mere fixing of the initial ceiling price did not prevent a finding of foreign value; and that the record was not clear that all purchasers for home consumption in Canada could not have bought at $1.30 per dozen tins.
Plaintiff’s exhibit 2, an affidavit of Harry Grimson, canned food sales manager of Canada Packers, Ltd., of Toronto, Ontario, Canada, after showing his qualifications, states:
* * * that during the months of April, May and June 1945 such or similar' canned pumpkin was offered for sale and sold by Canada Packers Ltd. as canners to all wholesalers in Canada, including wholesale branches óf Canada Packers Ltd. in any quantities at a price of $1.05 a dozen cans, less 1J4% cost [sic] discount, and less }í of 1% for leaks and swells; that this price was the ceiling price allowed by the Wartime Prices and Trade Board of Canada on sales by Canners to Wholesalers; * * * 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; that such price was the ceiling price allowed by the Waretime [sic] Prices and Trade Board of Canada on sales by Wholesalers to Retailers; * * * that during the period stated above all canners, wholesalers and manufacturers were subject to ceiling prices as prescribed by the Wartime Prices and Trade Board of Canada; * * * that during the period in question neither Canada Packers Ltd. or any other person firm or corporation freely offered or sold, or was permitted to offer or sell such or similar canned pumpkin to all purchasers without such restrictions; * * *.
From the foregoing, it appears that Canada Packers, Ltd., offered and sold canned pumpkin as canners to wholesalers in Canada at $1.05 (Canadian currency) per dozen tins, less V/ per centum, less-one-fourth of 1 per centum for leaks and swells, -and also offered and sold as wholesalers to retailers in Canada at $1.30 (Canadian currency) per dozen tins, each price being the ceiling price allowed by the-*478Wartime Prices and Trade Board of Canada on sales made to the respective type of purchaser. If, as stated in the affidavit (plaintiff’s exhibit 2), all canners, wholesalers, and manufacturers were subject to ceding prices as prescribed by the Wartime Prices and Trade Board of Canada, and no person, firm, or corporation in Canada offered for sale or sold or was permitted to offer or sell such' or similar canned pumpkin without adhering to the foregoing ceiling prices, and the ceding price to all retaders in Canada was $1.30 (Canadian currency) per dozen tins, then it would appear the resale prices by wholesalers reselling to retaders were governed by the restriction of the ceding price of $1.30 (Canadian currency) per dozen tins.
The evidence quoted from the affidavit (plaintiff’s exhibit 2) in regard to the Wartime Prices and Trade Board of Canada and its regulations is not challenged by this record. As a matter of fact, defendant’s exhibit 3, a photostatic copy of a report of the Treasury representative acting in charge, and the only direct evidence offered by counsel for the defendant-appellee does not even report the existence of the Wartime Prices and Trade Board of Canada.
In United States v. Graham & Zenger, Inc., 31 C. C. P. A. (Customs) 131, C. A. D. 262, our appellate court stated:
* * * The very essence of freedom is taken from a sale of goods accompanied by any restraint with respect to its resale, use or other disposition, regardless of the source of such restraint. * * *
This governmental restriction, at the wholesale to retail level, on the resale price thereof, creates a controlled or restricted market, since the restraint affected the resale price. Therefore, there can be no finding of a foreign value for this merchandise. United States v. Half Moon Mfg. & Trading Co., Inc., 28 C. C. P. A. (Customs) 1, C. A. D. 115.
I feel that the foreign market is controlled and accordingly it is not necessary to consider whether or not there was any single price at which such or similar merchandise was offered for sale to all purchasers in Canada for home consumption.
However, the record is clear that such or similar merchandise is freely offered for sale to all purchasers in the principal market of Toronto, Canada, in the usual wholesale quantities and in the ordinary course of trade, for - exportation to the United States at $1 (United States currency) per dozen tins, packed.
In my opinion the record establishes the following facts:
1. The merchandise consists of canned pumpkin exported from Canada during May 1945.
2. On sales for consumption in Canada, the Wartime Prices and Trade Board of Canada specified the different ceiling prices that could be charged wholesalers and retailers, depending upon the type of purchaser.
*479• 3. No person, firm, or corporation was permitted to offer or sell such or similar merchandise for consumption in Canada without adhering to the restrictions dictated by the Wartime Prices and Trade Board of Canada.
4. During the period of exportation, such or similar merchandise was freely offered for sale to all purchasers in the principal market of Toronto, Canada, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States at $1 (United States currency) per dozen tins, packed.
Based on the above-stated facts, the conclusions of law should be:
1. That there is no foreign value, as defined in section 402 (c) of the. Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, for the reason that the foreign market,was controlled or restricted.
2. That there does exist an export value, as defined in section 402 (d) of the Tariff Act of 1930, which is the proper basis for the determination of the value of this merchandise, and that such value was $1 (United States currency) per dozen tins, packed.
The decision and judgment of the court below should therefore be reversed.