DISSENTING OPINION
Donlon, Judge:I do not agree tfiat tfie record before us supports a finding tfiat export value is tfie basis of appraisement of these Japanese silk scarves.
Tfie specifications for a finding of export value are precise. * Apart from other factors included within tfie statutory definition, which are not here in dispute, a finding of export value requires tfiat there shall be a market, or price, at which such or similar merchandise is freely offered to all purchasers for export to the United States.
For reasons I shall state, it is my opinion tfiat tfie restraints on exports imposed by the Japanese Government, effective at tfie times of these exportations, preclude our finding as fact tfiat controlled merchandise, such as these scarves, could be or was then freely offered to all purchasers for export from Japan to tfie United States.
This merchandise was appraised at a purported export value of United States $2.99 per dozen scarves. Tfiat is tfie value for which appellant (defendant below) contends. Although this was tfie minimum price at which tfie exported scarves could be invoiced under tfie export control program, and it was tfie minimum price paid in dollars by American buyers of such scarves at tfie time of these exportations, it was not a freely offered price. It was tfie then-effective export control price, fixed by an authorized Japanese governmental agency.
Tfie evidence adduced in support of tfie lower export value for which appellee (plaintiff below) contends, is principally tfie statement of a *883Japanese agent, contained in an affidavit of record, that these scarves were freely offered for export to the United States at prices below the export control price. What are free offerings is an issue of fact, to be decided on all the evidence of record. This evidence, on which appellee chiefly relies, is evidence by affidavit. There was no opportunity, for the court to observe the witness, or for appellant’s counsel to cross-examine. While such evidence is admissible, it must be weighed with all other evidence.
The record as a whole makes it evident that prospective sellers for export, and prospective buyers also, knew that any offers at prices below whatever the Government control price might be, would not and could not eventuate in export transactions. As to the goods before us, the prices that were invoiced to the American importer in United States dollars, and the prices that were paid by the importer to the Japanese exporter in dollars, were not less than the United States dollar price fixed by the Japanese Government and effective at the times of these exportations.
It appears that there was a rebate or discount arrangement, outside the control program, by virtue of which appellee some time latex-received credit, within Japan, of an undisclosed sum in Japanese yen. Although the purchase price was in dollars, this was not a dollar rebate or a dollar discount. The record does not show exactly what yen sums were rebated. In a report of a Treasury agent, part of defendant’s exhibit A, there is quoted a statement by one Jerry Kondo, director of K. Kachi & Co., Ltd., Tokyo, seller of the merchandise in x-eappraisement 234863-A, that this merchandise was certified for export on April 24, 1953 (having been ordered on April 10, 1953), that payment was at $2.99 per dozen, and that, on December 17, 1953, considerably later, “12 cents per dozen was paid in yen” to buyer’s Tokyo office. Defendant’s exhibit A, pages 2, 3.
Mr. Kondo also stated, as reported by the Treasury agent in the same exhibit, that “K. Kachi & Company did not make a practice of rebating and did so only when required to do so by the importers concerned in order to hold their business.”
This attack on appellee’s case is in addition to the preponderance of evidence before us that Government restraints on exports and Government control over export permits preclude a finding that there were free offers of this merchandise to all purchasers for export. Even if there were such offers, and I am of opinion there were not, the fact that sellers in Japan made yen rebates to some customers, including appellee, but did not grant such rebates to all purchasers, or as a general practice, takes the so-called net prices for which appellee contends (that is, invoice price, less rebates) out of consideration as freely offered prices to all purchasers for export. That a price must be one offered to all purchasers, is a basic requirement of the statutory *884definition of export value. This proposition is fundamental and does not call for citation of authorities. On the weight of evidence before us, it appears that the net prices for which appellee contends were not prices offered to all purchasers.
Both the majority and the trial judge emphasize their view that the program of the Japanese Government, here involved, was a program of price control, and that this program was notably ineffective to accomplish the ascribed objective of price control.
I do not so read the record. The Government program we are considering was designed to achieve control over exports. Everything before us supports the view that the program was carried out in such a way as to be highly effective in accomplishing that objective.
The name of the so-called MITI agency of Government is revealing. It is the Ministry of International Trade and Industry. In December 1949, the Japanese cabinet issued an Export Control Order, under authority of the Foreign Exchange and Foreign Trade Control Law, No. 228 of December 1, 1949. It is that law and that cabinet order with which this litigation is concerned.
The purpose of the Foreign Exchange and Foreign Trade Control Law is stated in chapter I, article 1. The law was introduced in evidence as a part of defendant’s exhibit A, in Japanese text, with an English translation, stipulated by counsel to be true and correct. The purpose of the law, in English translation, reads as follows:
The purpose of this Law is to provide for the control of foreign exchange, foreign trade and other foreign transactions, necessary for the proper development of foreign trade and for the safeguarding of the balance of international payments and the stability of the currency, as well as the most economic and beneficial use of foreign currency funds, for the sake of the rehabilitation and the expansion of the national economy.
The law has to do with several categories of transactions, of which foreign trade is one. Chapter VI of the. law is entitled “Foreign Trade.” It provides that export of goods from Japan shall be permitted with the minimum restrictions consistent with the purpose oj this law (Article 47). As noted above, the purpose of the law is to develop international trade and safeguard the balance of international payments and the economic and beneficial’ use of foreign currency funds. It is common knowledge, of which a court should not be unaware, that at the close of World War II Japan desperately needed to promote its international trade. How successfully it has done so, at least as to trade with the United States, is also common knowledge.
Chapter VI of the law includes other provisions relative to foreign trade, of which pertinent provisions may be summarized as follows:
Any one desiring to export goods from Japan may be required to obtain approval of the Minister of International Trade and Industry for those types of export goods provided for by Cabinet order, and the restrictions imposed shall be within *885the limits of necessity for maintenance of international payment and sound development of international trade or national economy (Art. 48).
The Minister may require adequate certification that satisfactory payment is provided (Art. 49).
There are other provisions in chapter VI, including provisions for control of imports, that are not pertinent to this litigation.
Restrictions set under this law and the ordinances that were issued under the law appear to have adhered closely to the spirit of the law with respect to reasonable limits on the export of these scarves. I do not share the view of the majority that the Japanese Government was lax in the enforcement of its export control program. The price invoiced to, and actually paid by, the foreign buyer in United States currency for these goods had to be not less than the so-called “check” price for the merchandise at the time the export permit was issued. In any event, permit might be denied. Otherwise, there is no reason to suppose the Japanese Government had any interest, or reason for interest, in a side transaction with a favored buyer, made in yen and which did not adversely affect the dollar funds made available to the Japanese economy by the transaction.
Cases are cited in the briefs in which foreign price controls have been held not incompatible with a finding that foreign value existed. Here, we have no price controls, as such, nor is our problem that of foreign value.
Belgian syndicate controls over glassware have been held to be a merchandising practice that did not constitute the kind of trading contemplated by section 402 (c), and, hence, there was not a foreign value for the glassware. United States v. Graham & Zenger, Inc., 31 C. C. P. A. (Customs) 131, C. A. D. 262. Our appeals court commented, as to the export value for which the importer contended: “The Government does not contend that, if foreign value is not the proper dutiable basis, the export value is not such basis.” (At p. 133.) This is the only mention of export value in the well-considered opinion of Judge Jackson dealing, except for that sentence, with foreign value.
To the point, is the succinct attack on the argument that Government controls do not convert an otherwise free market into a restricted one. In the Graham & Zenger, Inc., case, supra, at page 135, Judge Jackson’s opinion says:
Appellant contends that restraints imposed by the sovereign on the interchange of goods because of war or abnormal world conditions do not convert an otherwise free market into a restricted one. To read this contention is to answer it. Where-ever a restraint is imposed upon the use of purchased goods there can be no free market, regardless of whether such restraint has been imposed by the sovereign or a private association, cartel, or syndicate. The very essence of freedom is taken from a sale of goods accompanied by any restraint with respect to its resale, use or othen disposition, regardless of the source of such restraint. Our tariff acts must be interpreted as written, and not so as to meet the exigencies of foreign trade or governments. If, as urged by appellant, the regulations by foreign *886governments of the free flow of goods might render it impossible to find a foreign value, export value, or United States value for many if not all commodities, in our opinion the remedy lies with the Congress and not with the courts.
Here, the restraint imposed by the Japanese Government was over export. Export might be prohibited, or conditions might be attached by the Minister. No purchaser for export knew, at the time goods were offered to him, or indeed until application was made for leave to export the goods, whether or not he could use the goods for export or what price in dollars he would have to pay for the goods. This is such restraint with respect to use or disposition, as to preclude here a finding of export value.
The Minister of International Trade and Industry had authority to deny export, or to attach conditions to his approval of export, “when he deems it- necessary for the maintenance of the balance of international payment and sound development of international trade or national economy.” . Defendant’s exhibit A, Export Trade C.ontrol Order (Cabinet Order No. 378, December 1, 1949). Appellee’s exhibit 1, affidavit of Tatsuo Nishiwaki, manager of Z. Horikoshi & Co., Ltd., Yokohama, avers that the Minister did, on occasion, refuse export licenses for shipments of silk scarves. That is to say, sanctions were imposed, and the use or disposition of goods purchased for exportation was pro tanto restrained by the Japanese Government.
These export controls made it impossible for sellers freely to offer controlled goods for export to the United States at any price. There were no published “check” prices. Except as rumor got around, no one knew whether or not a sale for export could be consummated, or if so, at what price.
It is said that the Government export control program bogged down because effective sanctions were not imposed on purchasers. In my view, the sanctions imposed on purchasers for export were effective. They could hardly have been more so. There could be a peremptory “no” to the export of any particular lot of controlled goods, and there surely would be such refusal, unless the Minister was well satisfied that the Japanese economy realized foreign exchange in payment of the merchandise on the basis of an arbitrary price unrelated to any so-called offers made by sellers. These were sanctions which purchasers for export could not and did not escape.
The apparent concurrence of the parties that export value is the appropriate basis of appraisement of this merchandise does not deny to the court its duty to review the evidence. The basis of valuation of merchandise for tariff purposes is an issue of law, to be decided by the courts. Weighing all the facts of record, ours is the duty of deciding whether or not the claimed basis of appraisement is proper. The majority find export value. I do not.
The proofs adduced show, in my opinion, that export value is not the proper basis of appraisement of these scarves. Congress has pro*887vided other bases of appraisement, in those cases where it appears that there is neither a foreign value nor an export value of the merchandise. However, appellee (plaintiff below) has not claimed, nor has it proved, either United States selling price or cost of production as an alternative basis of valuation of this merchandise. That being so, the appraisement should be affirmed.
* * * Whether or’ not the appraised value is erroneous, it stands, unless appellant proves the right to another value. It is the presumptively correct value until proven otherwise. [Nicholas Gal (Globe Shipping Co., Inc.) v. United States, 38 Oust. Ct. 728, A. R. D. 72, appeal dismissed by United States Court of Customs and Patent Appeals, 45 C. C. P. A. (Customs) 129.]
Findings of fact and conclusion of law should be as follows:
Findings of fact.
1. On the evidence of record, such or similar merchandise was not freely offered in Japan for sale to domestic users, at or about the time of these exportations.
2. On the evidence of record, such or similar merchandise was not freely offered in the principal market in Japan, at or about the times of the instant exportations, to all purchasers for exportation to the United States, nor does the record show a price that was so offered to all purchasers.
3. The evidence of record does not show facts sufficient to establish a value for this merchandise based on United States selling price or cost of production.
Conclusion of law.
1. Appellee (plaintiff below) having failed to overcome the presumptively correct appraised values, the values of this merchandise are those returned by the appraiser.
The decision of the trial judge should be reversed, and judgment should be entered that the values of this merchandise are the values returned by the appraiser.