DISSENTING OPINION
Mollison, Judge:I regret I cannot concur with my colleagues in their findings and conclusions with respect to the issues in this case, which, to the writer, at least, bring into sharp focus a basic proposition with respect to the interpretation of the words “all purchasers” as used in the valuation statute.
*630The merchandise involved was manufactured in Monterrey, Mexico, by Productos Cerámicos, S. A., and there is not in issue any question as to the existence of merchandise similar thereto, that is to say, we are here concerned with the value, for tariff purposes, of the imported merchandise insofar as such value is represented by the market value or price, under the statutory conditions set forth in section 402, as amended, of the Tariff Act of 1930 (19 U. S. C. § 1402), of merchandise “such” as that here involved.
Both pai’ties contend for values for the merchandise based upon foreign value, which is defined in section 402 (c), as amended, of the Tariff Act of 1930, it having been stipulated (and the stipulated facts are corroborated by the record) that during the times here material either no export value, as defined in section 402 (d) of the said tariff act, existed, or when such value existed it was not higher than the foreign value of the merchandise.
No question of usual wholesale quantities appears to be involved, it having been stipulated that the prices at which the merchandise was freely offered and sold were the same regardless of the quantity, and there is no question but that Monterrey, Mexico, was a principal market in Mexico for such merchandise.
The crux of the matter, and the main point on which the parties disagree, is the price at which the merchandise was freely offered for sale to “all purchasers.” The Government contended both below and here, and the trial court found, that sales and offers to sell by the manufacturer for home consumption were limited to a class of purchasers known as wholesalers or distributors, and, although it is not completely spelled out in either the findings of the court below or in the contentions of the Government, presumably that the class of purchasers to which offers and sales were limited did not embrace “all” purchasers within the meaning of that term as used in the statute. Additionally, it is contended by the Government that the price at which such merchandise was offered for sale to the limited class was not a uniform price, being subject to discounts from list prices established by the manufacturer ranging from 25 per centum to 10 per centum which were arrived at on the basis of the individual bargaining abilities of the purchaser and seller.
Citing the cases of United States v. American Glanzstoff Corp., 24 C. C. P. A. (Customs) 35, T. D. 48308; United States v. Mexican Products Co., 28 id. 80, C. A. D. 129; United States v. H. W. Robinson & Co., 19 id. 274, T. D. 45436; C. J. Tower & Sons v. United States, 24 Cust Ct. 502, Reap. Dec. 7770; United States v. F. W. Meyers & Co., Inc., 20 id. 382, Reap. Dec. 7539; United States v. J. J. Gavin & Co., Inc. (Soeldner-Heyman Co.), 24 id. 576, Reap. Dec. 7808; and United States v. L. Bamberger & Co., 26 id. 545, Reap. Dec. 7957, the court *631below held that the prices at which the manufacturer sold its merchandise did not constitute the statutory foreign value of the merchandise.
The trial court then found that the record established that at the sales level below the manufacturer, the wholesalers and distributors freely offered such merchandise for-sale for home consumption to all purchasers at prices represented by the manufacturer’s list prices with varying discounts, ranging from 15 per centum down to net, depending upon the bargaining ability of the purchaser. Citing the case of United States v. Mexican Products Co., supra, the court held that the only prices at which all purchasers could buy were the list pnces, which it found, with the addition of the cost of packing, to be the foreign value of each of the items involved.
On behalf of the importer, appellant here, it is contended that such merchandise was freely offered for sale to all purchasers for home consumption in Mexico by the manufacturer at the list prices, less a discount of 20 per centum, and that these prices, plus packing, represent the correct foreign values for the items involved.
Counsel for the appellant has pointed out that during the course of the .opinion rendered below, the trial judge referred to certain cases decided by this and our appellate court, viz, United States v. Oceanic Trading Co., Reap. Circ. 3233; Golding Bros. Co., Inc. v. United States, 6 Cust. Ct. 877, Reap. Dec. 5196; and Transatlantic Shipping Co., Inc. (Absorbo Beer Pad Co., Inc.) v. United States, 28 C. C. P. A. (Customs) 19, C. A. D. 118, which stand for the proposition that—
* * * the mere statement by a witness that the exporter is prepared and willing to sell identical merchandise to others does not warrant the finding of the existence of a statutory market value * * *
which type of evidence, it is contended, was not adduced herein and which cases are not pertinent to the issues herein.
An examination of the record before us indicates that the observations of counsel for the appellant are correct. However, it does not appear that the court below based its decision at ail upon the proposition of law or the cases just above cited, so that the error, if such it may be denominated, was harmless.
It is clear to the writer from an examination of all of the evidence that the primary effort of the manufacturer and exporter in the offer and sale of its products in Mexico for home consumption was to sell its products to the so-called wholesale level of trade, that is to say, to those who, in turn, would sell to retailers. Note the following testimony by Emilio Gracia, the assistant manager of the manufacturer and exporter, who supervised all the sales, prices, and discounts, when asked to whom in Mexico articles such as those here involved were sold:
A. To all purchasers handling figures like ours — I mean figurines — and everything for presents and gifts.
*632Q. And to what class of merchants did you sell them? — A. To what kind of merchants?
Q. Yes; retailers? — A. No; wholesalers; sometimes we call them distributors, some other times, wholesalers.
Q. Distributors and wholesalers mean the same to you? — A. Yes, sir. [Italics added.] (Tr. p. 66.)
$ $ ‡ ‡ ‡ ‡
Q. Now, your price lists 4 and 6, in evidence as Collective Exhibit 3-A and 3-B, 4 and 5, did those indicate any discount at which you were offering or selling the merchandise? — A. No; list prices do not show discounts.
Q. Did you, however, invariably offer discounts or not? — A. Yes, just to wholesalers. Just a few times some retailers bought from us on list prices, without any discount, but just a few.
Q. Just a few? — A. Yes.
Q. Did that happen often or seldom? — A. No; seldom — 2 or 3 in a year.
Q. I see. Now, was most of your merchandise sold with a discount?— A. Yes, I imagine 99 per cent. [Italics added.] (Tr. pp. 67-8.)
The Government offered in evidence a report of Treasury Representative J. Eugene Cauchon concerning an investigation made by him in Mexico in connection with the shipments here in question, and it was received in evidence as defendant’s exhibit 10 over the objection of counsel for the importer. The report is dated November 24, 1948, and states that the information therein contained was furnished by. Mr. Gracia during a visit made by the Treasury representative on November 15 and 16, 1948, about a year and a quarter prior to the testimony given by Mr. Gracia at the trial.
The Treasury representative quotes Mr. Gracia as saying that the manufacturer offered the merchandise only to certain selected distributors in each key city in Mexico and did not offer it to all distributors. A list of 26 firms in Mexico, said by the Treasury representative to be the selected distributors at the time of the exportations here involved, was examined by Mr. Gracia during the course of his testimony. He stated that the 26 were the only ones to whom sales were made, but stated that although the merchandise was “offered to everybody,” the 26 were “the only ones who came to us to buy” and whose credit warranted sales to them.
The court below was evidently convinced, as we are, from the record evidence that the manufacturer freely offered the merchandise for sale only to wholesalers or distributors. Citing the cases which have been already referred to, supra, for the proposition that where merchandise is offered by the manufacturers to one class of purchasers only, the sales prices may not be accepted as the proper foreign value, the court below eliminated from consideration the offered prices at the manufacturer’s level, and based her determination of the value upon a consideration of the evidence of the prices at which the merchandise *633was offered for sale at the wholesalers’ or distributors’ level. In so doing, the court below was motivated by her adoption of a construction of the term “all purchasers” as meaning “all who care to buy.”
This construction of the term, which first appeared in the opinion of a majority of the Court of Customs and Patent Appeals in the case of United States v. American Glanzstoff Corp., supra,1 has received considerable application in both this and our appellate court. The inescapable implication of the construction of the term has not, it seems to the writer, been carried into effect in the application of the construction in various cases, and this is illustrated by its use in the determination of the present matter by the court below, and by the majority here.
The quoted construction of the term seems to imply that merchandise must be offered at a uniform price to the entire buying public in the foreign market before the offered price may be accepted as meeting the requirement of the statute. Literally, “all of those who cared to buy such goods in such markets” would include purchasers and consumers at retail, which was quite obviously not the intention of the framers of the valuation provisions. Factually, the words contemplate a situation which rarely, if ever, exists, i. e., that in the markets of the world merchandise is offered at a uniform price to all classes of purchasers and all levels of trade.
In the application of the construction of the term by the courts since its enunciation, it seems to the writer that some departure has been made from the literal context of the words. In the case at bar, there does not seem to be any question but that “all of those who cared to buy such goods in such markets” were two classes of purchasers, i. e., wholesalers or distributors were one class, and retailers were the other class. The court below first determined that offers to the wholesalers or distributors class were not within the purview of the statute by reason of having been limited to a special class to the exclusion of the' other class and, consequently, rejected them and did not. consider them. She then, in effect, determined that the only offers which came within the purview of the statute were those to the retailers class.
But these latter offers were themselves limited, in the sense that they were made to only one class of purchaser, the retailers, to the exclusion of the other class of purchaser, i. e.,. wholesalers or distributors. Such offers certainly did not encompass “all of those who cared to buy such goods in such markets,” and it seems to the writer they are subject to the same defect which might be deemed to bar from consideration the offers by the manufacturer to wholesalers or distributors.
*634In this situation,.it is my view that there was no—
* * * price at the time of exportation of such merchandise to the United States, at which such or similar merchandise [was] freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, * * *
and, consequently, no foreign value therefor,' within the meaning of the statute as it has been construed, existed. As the parties have confined their proof to the single issue of foreign value and offered no proof as to any other basis of value other than to establish that no export value existed, I believe that this court and the court below have no evidence before them upon which the value of the merchandise can be determined.
Judgment should therefore issue reversing the decision and judgment of the court below and remanding the cases to the said court with instruction to dismiss the appeals for reappraisement for lack of proof.
The exact wording in the American Glanzstoff Corp. case is “all oí those who cared to buy such goods in such markets.”