The opinion
CON OTTERING OPINION
Donlon, Judge:
I concur in the result.
There are two issues before us. The first is whether there is evidence that would support a finding that United States value is the proper statutory basis for appraising this merchandise. The second, which we come to only after an affirmative finding on that issue, is whether the proofs adduced by appellant (plaintiff below) sufficiently establish what the United States value is.
As between United States value and cost of production as alternative bases of appraisement, our appeals court, in United States v. Robert Reiner, Inc., 35 CCPA 50, C.A.D. 370, found itself, as we do here, with a case in which the parties were in agreement that no basis existed for finding either foreign or export value and that, if there was no *778 statutory United States value, then the cost of production, in the amounts appraised, was correct. As to the emphasis proper to the court in such a case, our appeals court said:
As before stated, it is well understood that while Congress preferred the application of the defined foreign or export values, it next preferred United States value in preference to cost of production. The United States value is more easily ascertained than the cost of production. Sometimes this has been especially true on account of the unavailability of information abroad with respect to the cost of producing the imported article. These considerations, in the past and now, have been and are influential in prompting this court to liberally construe the language of said United States value provision so as to bring about the obvious purpose of Congress and so as to make the provision workable in reflecting a fair value for appraisement. [P. 54.]
I am of opinion that the liberal construction enjoined on us by our appeals court does not warrant a finding of law that, in order to support United States value as the basis of appraisement in all circumstances, it must be shown that offerings were freely made in wholesale quantities to ultimate consumers.
It is well established that the required freely made offerings in wholesale quantities are such offerings to those who, in the circumstances of the particular business, are likely to be buyers in wholesale quantities of merchandise such as or similar to the merchandise to be valued. Rico, Inc., v. United States, 48 CCPA 110, C.A.D. 778, Sani-Smoke, Inc. v. United States, 50 CCPA 82, C.A.D. 825.
Appellant’s proofs do not show that ultimate consumers would not buy in the usual wholesale quantity. What it has shown is that it would not sell in any quantity to ultimate consumers. This is not the proof that is required to meet the specifications of the statute. In my view, appellant’s predicament arises from its failure of proof, not from an illiberal interpretation of the law.
Moreover, even if a liberal construction of appellant’s proofs showed the free offerings in wholesale quantities which the statute requires, and I am of opinion that they do not, I concur that the proofs as to United States value are deficient.
For the reasons stated, I join in the judgment order but not in the findings.