The opinion
SMITH, Judge
(dissenting, with whom RICH, Judge, joins).
In respectfully disagreeing with the majority, I do so because I think the affidavits embraced by exhibits 7 through 20 are properly before us and that they support the findings of the Customs Cqjurt.
My reason for thinking the said affidavits are before us is that they were admitted by the trial court, after objection and a full discussion as to their admissibility. Unfortunately foj: present purposes, the record here does not disclose the details of what transpired between the time when the affidavits were first excluded and the point at which the trial court reversed its earlier ruling and admitted them. We do know from the portions of the record quoted by the majority that conferences concerning the admissibility of these affidavits were held in chambers, and apparently as a result, the trial judge changed his ruling.
The provisions of 28 U.S.C. § 2633 seem to me to vest a substantial discretion in the trial court as to whether affidavits and depositions may be received in lieu of oral testimony. The statutory provision permits them where attendance of the witness “cannot reasonably be had.” See Glanson Co. v. United States, 41 Cust.Ct. 510 , Reap.Dec. 9208. There is no question but that in originally ruling as he did, the trial judge in effect heTd that the testimony of the witnesses could reasonably be had. His discretion in subsequently changing this ruling is not properly subject for review unless it be shown that there was an abuse of the power. Judge Mollison’s statement upon admitting the affidavits is clear, and in the absence of proof that he had acted unreasonably in exercising the discretion vested in him by the statute, I think we are obligated to consider this appeal on thq record with the affidavits before us. I find nothing arbitrary nor otherwise unreasonable in Judge Mollison’s statement as to why he had changed his mind and had decided to admit the affidavits in evidence. The record shows the following :
Mr. Grossman: May I call the court’s attention to the fact, that the preqjse question was asked at the earlier hearing. At that time the court sustained the objection.
Judge Mollison: It might have had different reasons for sustaining it. Now we have a different situation. First we had a long and lengthy conference in chambers about the matter of proof, and for various reasons, the court now permits it. Objection overruled. [Emphasis added.]
*1018 There has been no showing that the trial judge was clearly erroneous in finding, as he must have found, that attendance of the witnesses could not reasonably be had. We are therefore obliged to accept such finding as fact.
Another factor which has influenced my view regarding this case involves the pertinent provision of the Tariff Act of 1930, section 402(e). Since the goods were imported in 1953-54, we must consider section 402(e) as it read at that time, without regard to the subsequent amendment of it by the Custom? Simplification Act of 1956. Thus in 1954, section 402(e) (as amended by the Customs Administrative Act of 1938, 52 Stat. 1081 ) provided in pertinent part:
Sec. 402(e) United States Valve. The United States value of imported merchandise shall be the price at whjch such or similar merchandise is freely offered for sale * * * to all purchasers * * * in the usual wholesale quantities * * *. [Emphasis added.]
Note that United States value as so defined does not contemplate a selling price based on actual sales, but a price at which the merchandise is freely offered for sale. I think the record clearly establishes, without resort to the disputed affidavits, that the instant merchandise was freely offered to all purchasers in lots of 100 pounds or more at $11.90 per pounc]. There is also substantial evidence of record which supports the conclusion that lots of 100 pounds or more were the usual wholesale quantities (Rautboard, appel-lee’s general manager, so testified). Indeed, in view of the continuing offer to sell and in view of the actual sales in quantities of 100 pounds or more, I have great difficulty in understanding how the majority can reach the conclusion that one-ounce samples mojje nearly represent the usual wholesale quantities. This conclusion seems to be based on the fact that there were more individual sales of one-ounce quantities than any other single amount. Wljile this rule of thumb might be useful in resolving cases where there .are a number of comparable wholesale quantities, it is of no aid where, as here, fhe largest offered quantity (100 pounds or more) is so great in comparison to the smallest offered quantity (one ounce) that it is anomalous to speak of the smaller as a “wholesale” quantity. Obviously it was not, for clearly the sales were of samples.
In Aceto Chemical Co. v. United States, 51 CCPA 121, C.A.D. 846, we held that where actual sales were at varying prices, so that no single price could be established for the merchandise, the price at which the merchandise was offered for sale becomes relevant. Under section 402(e) as it existed at the time of the importations in the instant case, the offering price is the onty relevant figure. The merchandise was clearly offered to all in lots of 100 pounds pr more, and common sense should tell us that 100 pounds, rather than one ounce, is the usual wholesale quantity. I would affirm.