The opinion
DISSENTING OPINION BY
BARBER, JUDGE.
I find myself unable to agree with the majority opinion in this case.
The importer stated in his entry, which the customs officers accepted, that the inland charges to Hamburg were about—
$4 p. t. 1,000 kilos_i-.-L $1, 218. 00
Ocean freight from Hamburg to Boston at 275 p. t., 1,000 kilos_837. 40
Insurance about__:__ -80. 00
Consul fees__■_i. 2. 50
Total_ 2, 137. 90 '
The examiner noted on the invoice that the estimated items were approximate and that the consular invoice would.show them correctly. They turned out in the aggregate to be $270.80 less than as estimated, two being higher, one the same and one lower.
It is obvious that the importer could not know on a pro forma invoice entry what the exact amount of each item was.
The main opinion holds that the importer was guilty of undervaluation and in effect that Frankfort was the place of foreign-market value. There is nothing in the entry papers or the record that *250 shows the principal market of the country from which the exportation was made or the foreign-market value of the merchandise.
It was the duty of the appraiser under paragraph K of section 3 ■qf the act of 1913,, to appraise the merchandise at its foreign-market value, or if he could not ascertain it, by one of the alternative methods provided in paragraph L of the same section.
There is no pretense or claim that he undertook to proceed under any of the provisions of paragraph L, and in my opinion the appraisment was void as not made in accordance with the statute then in force.
I am unable to agree with the conclusion that this case is ruled by United States v. Philips Co. (7 Ct. Oust. Appls. 497; T. D. 37110). There the place of principal foreign market was agreed to. Here it is neither agreed to nor found by the appraiser. There it was agreed that the appraiser advanced the entered value to make market value; here the appraiser appraised the merchandise at the entered value.
I would reverse the judgment of the. Board of General Appraisers on the ground that the appraisal was void as not having been made in accordance with law.
Smith, Judge, concurs in this dissent.•