pointed to any particular evidence which had been overlooked at the trial or that appellant had any new evidence to offer. It is further noted here that, according to the prevailing opinion of the court below, only a question of fact was there submitted for final decision on the merits of the case by the respective counsel and that no legal questions, even as to the rulings made by the trial court during the taking of testimony, had been raised.

The importer in support of his protest in customs litigation must establish not only the alleged erroneous classification of the merchandise but also the correctness and validity of his own position with respect to the proper classification thereof. United States v. Good Neighbor Imports, Inc., 33 C. C. P. A. (Customs) 91, C. A. D. 321. A great volume of testimony was presented by both sides in this case. The printed record comprises 474 pages. The briefs submitted by counsel for the respective parties and for amici curiae, collectively, represent 268 printed pages. All of the importer's witnesses were dealers in wools used for apparel and had little experience in the handling of carpet wools, whereas all of the witnesses for the Government had many years of experience in the purchase and handling of carpet wools.

The prevailing opinion of the Customs Court, C. D. 1289, has detailed at length the essential testimony of the entire record. We deem it unnecessary, therefore, to repeat that evidence here. Suffice it to say, that certain testimony of the witnesses for the parties is in direct conflict in various aspects. On some points brought to the attention of the court, the experts have disagreed among themselves. However, there is evidence in the record which supports the findings of fact made by the majority, and there is no legal justification presented here which would warrant our disturbance of their conclusions.

This court has constantly adhered to the long established principle that while the court has the power to review the findings of the United States Customs Court upon issues of fact, such findings will not be disturbed, especially where they turn upon the intelligence and credibility of witnesses, unless such findings are without evidence in the record to support them, or are clearly contrary to the weight of such evidence. United States v. C. J. Tower & Sons, 38 C. C. P. A. (Customs) 131, 136, C. A. D. 450; United States v. Riebe, 1 Ct. Cust. Appls. 19, T. D. 30776; Esposito et al. v. United States, 12 Ct. Cust. Appls. 334, T. D. 40485; In re Van Blankensteyn, 56 Fed. 474.

Counsel for appellant in its brief has characterized testimony given by the Government's witnesses as biased and not the "kind of evidence which can be properly evaluated without scrutiny as to its motivation,"and that in the case of Webb and Martin, Government's witnesses, the inference that they testified falsely seems inescapable in the light of certain affidavits previously filed by them. The latter

point was raised by appellant in the motion for rehearing before the Customs Court but apparently was not deemed a controlling factor by the majority.

The dual jurisdiction of this court involves the rendition of decisions and judgments which peculiarly affect the public interest. We deem it incumbent upon counsel in a controversy wherein he discovers or seriously suspects the existence of fraud or perjury to exercise diligence in bringing such matters, in timely fashion, to the attention of the trial court or other responsible officials. Appropriate action then may be taken thereon in the interest of justice; otherwise statements as to fraud and perjury are looked upon by this court with disapproval and as being irresponsible and unjustified. Kruger v. Resnick, 39 C. C. P. A. (Patents) 994, 197 F. (2d) 348, 94 USPQ 65, Patent Appeal No. 5853; Louis P. Josserand v. Samuel Herbert Taylor, Jr., 34 C. C. P. A. (Patents) 824, 159 F. (2d) 249, 72 USPQ 357.

While the dissenting opinion states "It appears to the writer that the witnesses for both sides were equally qualified to give expert testimony on the point in issue," the judge nevertheless found as a matter of fact that unless the aforementioned testimony were given the weight claimed for it by appellant, it must follow as a necessary result that Congress did a vain, nugatory and useless act in providing in paragraph 1101 (a) for assorted Cordova wools. As the Government's counsel correctly points out here, the dissenting judge failed to take into consideration that the paragraph provides for 29 named wools, some of which could be sorted and matched while others could not.

We have examined appellant's further contention with respect to the violation by the Collector of Customs of section 315 of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, and find no error on the part of the majority in the adverse ruling which they made on that point.

For the reasons herein before stated, the judgment of the United States Customs Court, and its decision denying appellant's motion to vacate the judgment, are affirmed.

BROOKS PAPER COMPANY v. UNITED STATES (No. 4686)1

1. REAPPRAISEMENT USUAL WHOLESALE QUANTITIES A MATERIAL ISSUE In order to prove foreign or export value as a basis for a valid reappraisement, under section 402, Tariff Act of 1930, the appellant must meet every material issue in the case, and must establish, inter alia, the usual wholesale quantities in which such or similar merchandise was freely offered for sale to all purchasers in the principal markets of the country from which exported. If he fails to establish the usual wholesale quantities, he has failed to meet his statutory burden of proof and the valuation by the appraiser must stand. 1 C. A. D. 495.

2. SAME-EVIDENCE-CONCLUSION OF ULTIMATE FACT

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The sole evidence in the case relating to usual wholesale quantities is a statement in an affidavit introduced by appellant, the importer, that "the great majority of sales were in quantities of 15,000 square meters or more." This court has established in prior decisions cited that the language "in the usual wholesale quantities," as used in section 402, refers to that particular wholesale quantity which constitutes the "major portion of sales or offers for sale" in wholesale quantities. Held that the above statement is nothing more than affiant's own conclusion of an ultimate issuable fact, namely, the usual wholesale quantities, unsupported by evidentiary facts; that affiant did not use statutory language, but juducial equivalent thereof, must be regarded as immaterial matter of form rather than substance.

3. EVIDENCE-ULTIMATE AND EVIDENTIARY FACTS DISTINGUISHED

Trial court must properly distinguish between ultimate facts and evidentiary facts. "Evidentiary facts" must be found from the testimony or other evidence. "Ultimate facts" are reasoned conclusions drawn from the evidentiary facts; they are the issuable facts without proof of which plaintiff cannot recover. 4. SAME SUBSTANTIAL EVIDENCE DEFINED

"Substantial evidence" as defined by the Supreme Court is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. Under this test, a mere declaration of an essential ultimate fact in issue is not substantial evidence.

5. SAME-AFFIANT'S STATEMENT NOT SUBSTANTIAL EVIDENCE

Held that affiant's statements pertaining to the question of usual wholesale quantities cannot properly be regarded as substantial evidence because they are merely statements of an essential, issuable, ultimate fact.

6. REAPPRAISEMENT, —JURISDICTION-SUBSTANTIAL EVIDENCE A QUESTION OF

LAW

Although the weight to be attached to proper evidence is the function of the trial court and appellate division, whether or not there is substantial evidence to support a finding of fact by those tribunals is a question of law which may be determined by this court.

7. PRIOR DECISIONS APPOSITE

Certain prior holdings by this court also compel the conclusion that affiant's bare statement pertaining to usual wholesale quantities is merely a conclusion of the witness which is not substantial evidence of the ultimate fact it seeks to establish. To hold otherwise would not only permit plaintiff, instead of the customs courts, to make his own inferences of fact, but to decide for himself important question of law as well. It would also place a premium on the withholding of evidence by the party challenging the appraiser's valuation. Semon Bache & Co. v. United States, 28 C. C. P. A. (Customs) 166, C. A. D. 140, Jenkins Brothers v. United States, 25 C. C. P. A. (Customs) 90, T. D. 49093, and F. S. Whelan & Sons v. United States, 39 C. C. P. A. (Customs) 168, C. A. D. 482, discussed.

8. REAPPRAISEMENT-STATUTORY BURDEN OF PROOF

A holding that statement by affiant that the great majority of sales were 15,000 square meters or more is substantial evidence sufficient to meet plaintiff's twofold statutory burden of proof in 28 U. S. C. section 2633 because

uncontradicted and unrebutted would vitiate the mandate of Congress in that section. It would permit plaintiff to avoid his statutory burden of proof by the simple expedient of introducing statements of issuable ultimate fact unsupported by evidentiary facts, and would place on defendant the burden to contradict or rebut plaintiff's "evidence."

9. SAME-EVIDENCE-AFFIDAVITS

Appellant's right to introduce evidence by means of affidavit is not questioned here, since Congress has expressly given the right to do so. However, those statutory provisions merely provide certain exceptions to the hearsay rule, and there is no evidence that Congress, by so providing, intended to change other established rules of evidence which apply to this court as to courts of general jurisdiction.

United States Court of Customs and Patent Appeals, June 30, 1952 Appeal from United States Customs Court, Reap. Dec. 7975

[Affirmed.]

Sharretts, Hillis & Paley (Howard C. Carter, Edward P. Sharretts, and Louis J. Paley of counsel) for appellant.

Charles J. Wagner, Acting Assistant Attorney General (Richard F. Weeks, special attorney, of counsel), for the United States.

[Oral argument February 5, 1952, by Mr. Edward P. Sharretts and Mr. Weeks]

Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Associate Judges

JOHNSON, Judge, delivered the opinion of the court:

This is an appeal from the judgment of the United States Customs Court, Third Division (Reap. Dec. 7975) reversing the judgment of the single judge (Reap. Dec. 7739).

Appellant, the importer, appealed for reappraisement seeking to establish a certain foreign or export value, as defined in section 402 (c) and (d) of the Tariff Act of 1930, as the proper basis for determining the dutiable value of the merchandise here involved. Section 402 provides in part as follows:

SEC. 402. VALUE.

(a) BASIS.-For the purposes of this Act the value of imported merchandise shall be

*

(1) The foreign value or the export value, whichever is higher;

(c) FOREIGN VALUE.-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,

* *

*

(d) EXPORT VALUE.-The export 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, for exportation to the United States,

*

The merchandise is known as matrix board which was exported from Germany on October 7, 1936, and entered at the port of New York on October 16, 1936. The board was in sheets 24 inches long, 0.80 mm. thick, in widths of 20 and 16 inches. It was valued on the consular invoice at 60 pfennig per square meter and entered pursuant to the provisions of section 503 (b) of the Tariff Act of 1930, 19 U. S. C. § 1503 (b), at 80 pfennig per square meter less 3 per centum, packed.

The difference between the value set out in the consular invoice and the entered value is the amount added by the importer by reason of advances made by the appraiser in previous entries of similar merchandise, a duress certificate having been duly filed.

It is claimed by appellant that the correct value of the merchandise, representing both foreign and export values as statutorily defined, is 60 pfennig per square meter, net packed.

1

By statutory provision Congress has directed that (1) the value found by the appraiser shall be presumed to be the value of the merchandise and (2) the burden shall rest upon the party who challenges its correctness to prove otherwise.

To sustain his burden of proof, and overcome this statutory presumption, it is incumbent upon appellant, the party challenging the value found by the appraiser in the first instance, to prove the action of the appraiser was erroneous and to establish some other dutiable value as the proper one. To do this, that party must meet every material issue involved in the case, and if he fails to do so the value fixed by the appraiser remains in full force and effect. United States v. Gane and Ingram, Inc., 24 C. C. P. A. (Customs) 1, T. D. 48264, citing United States v. T. D. Downing Co. (George H. Sweetnam, Inc.), 20 C. C. P. A. (Customs) 251, T. D. 46057. It is clear, from a reading of section 402 (c) and (d), supra, that in order to prove foreign value or export value as a basis for a valid reappraisement, the appellant must establish, inter alia, the usual wholesale quantities in which such or similar merchandise involved was freely offered for sale to all purchasers in the principal markets of the country from which exported, etc. This court has so construed the statute in the case of M. V. Jenkins et al. v. United States, 34 C. C. P. A. (Customs) 33, C. A. D. 341, wherein we held that failure to satisfactorily establish the usual wholesale quantities constitutes a failure to establish one of the essential elements of a valid reappraisement. If appellant has failed to establish the usual wholesale quantities, then, in accordance with the foregoing, it seems clear that he has failed to meet his burden of proof, and the valuation set by the appraiser must stand. For reasons presently to appear, the outcome of this case depends on whether

This provision appeared in section 501 of the Tariff Act of 1930, 19 U. S. C. § 1501, until June 25, 1948, when it was removed from that section to section 2633, Title 28, U. S. C.

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