U. S. V. D. J. POWERS, ETC., AND GEO. WM. RUEFF (INC.) 185 In Draeger Shipping Co. et al. v. United States, 13 Ct. Cust. Appls. 419, T. D. 41341, we approved the Wanamaker decision, and quoted exactly what we have quoted above. The decision in the Smillie case, based as it was on proof of the commercial meaning of the term ferromanganese on and prior to the date of the passage of the Tariff Act of 1913, would not, under the above authorities, control the classification of the merchandise at bar, even if the ferromanganese provisions of the two Tariff Acts were identical. It should be observed that paragraph 518 of the Tariff Act of 1913 provided for "ferromanganese," without any words of limitation, description, or definition, while paragraph 302 of the Tariff Act of 1922 provides for "ferromanganese containing more than 1 per centum of carbon, 17% cents per pound on the metallic manganese contained therein: Provided, That ferromanganese for the purpose of this act shall be such iron manganese alloys as contain 30 per centum or more of manganese." It seems to us since this is, admittedly, an iron manganese alloy, and since it contains 77.7 per centum of manganese and contains more than 1 per centum of carbon, that Congress has fixed its own definition of ferromanganese, as far as the issues of this case are involved, and that, by congressional mandate, the importation must be classified as such. We conclude, therefore, that the importation under consideration should be classified as ferromanganese under paragraph 302 and duty assessed at 1% cents per pound on the metallic manganese contained therein. The judgment of the court below is reversed and the cause remanded, with instructions for further proceedings not inconsistent with the views herein expressed. UNITED STATES v. D. J. POWERS (FOR FRANKLIN Co.) AND GEO. WM. RUEFF (INC.) (No. 3038 1) 1. EXPORT VALUE-NOT SHOWN, WHEN-FAILURE OF UNITED STATES CUSTOMS COURT TO MAKE FINDINGS OF OTHER VALUE. No export value is shown where the importer was the sole purchaser of merchandise in France for export to the United States and there is no evidence that similar merchandise was sold for export to the United States. The United States Customs Court having failed to make findings as to any other value, this court can do nothing more than reverse the judgment and remand the cause for further proceedings, as its jurisdiction is limited in reappraisement cases to questions of law only. 2. CERTAIN SPECIAL REBATES ON PURCHASES IN ADDITION TO REGULAR DISCOUNT NOT CONSIDERED IN ASCERTAINING FOREIGN VALUE. The allowance of special rebates at the end of a year on purchases of 20, 40, 80, and 100 tons of merchandise made during that period, in addition to the regular discounts allowed on purchases of 5 tons, can not be considered in ascertaining foreign value. 1T. D. 42811. United States Court of Customs Appeals, May 25, 1928 APPEAL from United States Customs Court, Circular Reappraisement 764 [Reversed and remanded.] Charles D. Lawrence, Assistant Attorney General (Philip Stein and Fred J. Carter, special attorneys, of counsel), for the United States. Comstock & Washburn (J. Stuart Tompkins of counsel) for appellees. [Oral argument May 7, 1928, by Mr. Carter and Mr. Tompkins] Before GRAHAM, Presiding Judge, and SMITH, BARBER, BLAND, and Hatfield, Associate Judges HATFIELD, Judge, delivered the opinion of the court: This is an appeal from a judgment of the United States Customs Court in reappraisements Nos. 45644-A and 47375-A. The merchandise involved consists of vegetable parchment paper. It was entered at the invoice price-the price paid by importers, which, at an early stage of the proceedings, they claimed was the export value. It was appraised by the local appraiser at an amount which he considered represented the foreign value. Importers appealed to reappraisement. Upon the trial before the associate justice, sitting in reappraisement, considerable evidence was introduced by the parties. We quote from the testimony of the witness, Buehler, the assistant secretary of the Franklin Paper Co., who testified for importers. He said: Q. How did you buy this paper, Mr. Buehler?—A. In what way? Q. Are you the sole agent in this country, I mean?-A. Well, we held the right for this country for one year, during this period. Q. What are your terms of contract; did you get a special price?-A. No; no special price, any more than any inquiry from this country was turned over to us, if there were any; the foreign mill would deal with nobody else in this country without consulting with us first. It is evident from this testimony that the Franklin Paper Co. was the sole purchaser of this merchandise in France from Etablissements Dalle Freres & Lecomte, the manufacturers and shippers, for export to the United States. There is no evidence that merchandise similar to that imported was sold in the markets of France for export to the United States. There is considerable evidence upon the question of foreign value. We quote from Exhibit No. 2, an affidavit of Antoine Dalle, president of the board of directors of the concern which manufactured and shipped the merchandise in question: From May, 1924, until the end of September, 1925, we sold to our French buyers at the basic price of 500 francs per 100 kilos vegetable parchment of the same grade and the same thickness as that stated in the invoices for the Franklin Paper Co. On this price, and during the whole period mentioned, we extended an U. S. V. D. J. POWERS, ETC., AND GEO. WM. RUEFF (INC.) 187 i mmediate discount of 4% on the orders for 5 tons, and, in addition, a special discount, at the end of the year, as per the following indications: 2% discount on a purchase of 20 tons in one year. In addition to these discounts, the witness stated that a further discount of 1 per centum was allowed for cash payments. There is other evidence in the record, but, for the purpose of this opinion, it need not be stated. The associate justice held that the entered value was the dutiable value of the merchandise. The Government filed an application for a review of the judgment of the associate justice. The appellate division of the Customs Court affirmed the judgment of the associate justice; and, in so doing, said: * * we find that the prices paid and invoiced and entered in the two cases represent and were the export values, which were higher than the homemarket values. We find that the values found by the single justice in the court below, to wit, the entered values, are and were the export values of the merchandise on the date of exportation as prescribed in the law for export values. We overrule all the assignments of error, and, having found the export value as prescribed in the law to be higher than the home-market value, and that the export values abroad were exactly stated in the entry, and in the decision of the justice below, we therefore affirm the decision of the justice below. It will be observed that the court below affirmed the judgment of the trial justice upon the theory that the evidence disclosed an export value which was higher than the foreign value of the merchandise. In view of the uncontradicted testimony of the witness for importers, which we have herein before quoted, that the manufacturer did not sell this merchandise in the markets of France for export to the United States to any other than the Franklin Paper Co., its sales for export being limited to this company; and, there being no evidence that similar merchandise was sold for export to the United States, there is no evidence of any export value. This was conceded by counsel for importers in this court at the time the case was argued orally. The court below made no findings as to foreign value, and, as the jurisdiction of this court is limited to questions of law only, we are unable to do more than reverse the judgment and remand the case for further proceedings. However, in so doing, we think it appropriate at this time to say that, if it were proper to allow the various special rebates on purchases of 20, 40, 80, 100, and 120 tons of the merchandise made during a period of one year, in addition to the regular discount of 4 per centum and the discount of 1 per centum for cash on purchases of 5 tons, in ascertaining foreign value, there would be at least six different "wholesale quantities" and as many foreign values for such merchandise. If such condition prevailed we would be unable to suggest how an appraiser might proceed to ascertain the foreign value of an importation of this merchandise. A careful reading of the statutory definition of foreign value is sufficient to show the fallacy of this contention of importers. Section 402, subsection (b) reads as follows: SEC. 402. (b) The foreign value of imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale 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, including the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States. See Keve & Young v. United States, 11 Ct. Cust. Appls. 94, T. D. 38747, and cases cited therein; also United States v. Proctor & Co., Hammacher-Schlemmer & Co., 15 Ct. Cust. Appls.-, T. D. 42564. The judgment is reversed and the cause remanded for proceedings consistent with the views herein expressed. F. W. WOOLWORTH Co. v. UNITED STATES (No. 30741) PETITION FOR REMISSION OF ADDITIONAL DUTIES. Where the merchandise was exported three months after the invoice declaration was made and eight months after date of purchase, a sufficient time had elapsed to require a reasonably prudent person to make due inquiry as to the dutiable value of the merchandise. Stone & Downer Co. v. United States, 13 Ct. Cust. Appls. 337, T. D. 41251, cited and approved. This duty is not performed by making inquiry of an examiner who has no information on the subject. United States Court of Customs Appeals, May 25, 1928 APPEAL from United States Customs Court, Abstract 4770 [Affirmed.] Sharretts, Coe & Hillis (Edward P. Sharretts of counsel) for appellant. Charles D. Lawrence, Assistant Attorney General (Philip Stein, special attorney, of counsel), for the United States. [Oral argument May 10, 1928, by Mr. Sharretts and Mr. Lawrence] Before GRAHAM, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIELD, Associate Judges HATFIELD, Judge, delivered the opinion of the court: This is an appeal from a judgment of the United States Customs Court denying a petition for remission of additional duties. The petition was filed pursuant to the provisions of section 489 of the Tariff Act of 1922, the pertinent part of which reads as follows: SEC. 489. * * * Such additional duties shall not be construed to be penal and shall not be remitted nor payment thereof in any way avoided, except in the case of a manifest clerical error, upon the order of the Secretary of the Treasury, or in any case upon the finding of the Board of General Appraisers, 1T. D. 42812. upon a petition filed and supported by satisfactory evidence under such rules as the board may prescribe, that the entry of the merchandise at a less value than that returned upon final appraisement was without any intention to defraud the revenue of the United States or to conceal or misrepresent the facts of the case or to deceive the appraiser as to the value of the merchandise. It appears from the record that certain rubber balls were purchased by appellant on March 25, 1924; that they were exported from Austria on November 6, 1924, and imported into the United States at the port of Seattle; that the invoice for the merchandise was received by appellant at New York; and that a clerk in the foreign department of appellant, who had no personal knowledge on the subject, presented the invoice to the examiner at the port of New York and requested information as to the dutiable value of the merchandise. In this connection the appellant's clerk, the only witness in the case, said: Q. What else did you do?-A. Asking whether these prices were correct, and he told me so far as he knew, he knew of no changes, and I entered as invoiced. We also noted the statement on the bottom of the invoice that the wholesale Austrian market value was in paper crowns at the time of exportation and of purchase. Q. Did you compare that with the invoice value which was in United States dollars?-A. I did. Q. And what did you find?—A. It figured out at less than the invoice price. He further said that when the invoice was received appellant had no price list showing a value higher than that stated in the invoice. Thereupon, the clerk mailed the invoice to appellant's brokers, Dow & Co., at Seattle, and instructed them to enter the merchandise at the invoice value, which they did. The appraiser returned a value higher than that declared in the entry. The final appraised value was less than that returned by the appraiser, but higher than that declared in the entry. The merchandise was, therefore, assessed by the collector with additiona duties in accordance with the provisions of section 489. In further explanation the witness stated that the examiner at the port of Seattle had "received a new price list which we did not have at the time, and we cabled abroad for information as to the new price list, and one month later we received a new price list which showed the export price higher than we entered it at that time"; that the shipper was instructed to keep the importer informed as to changes in the market value of the merchandise; and that importer had made no other entries of like merchandise at, or near, the time of the filing of the involved entry, although several entries for like merchandise were made during the year 1925. Upon this record the court below held that importer had failed to prove its case by satisfactory evidence, and judgment was entered. denying the petition for remission of additional duties. It is argued here that the judgment should be reversed for two reasons; namely, first, that |