elements that enter into his finding of dutiable value. In the case of export value, those findings, under old section 402(d), which is applicable here, include (1) market value, or price, (2) at the time of exportation, (3) at which such or similar merchandise, (4) is freely offered for sale in the principal markets of the exporting country, (5) in ordinary course of trade, (6) for exportation to the United States, (7) plus, when not included in such price, certain specified costs and charges that seem not to be in issue here. I take it that appellant does not argue that the appraiser should allow any deductions from market value, or price, for there is no statutory authority in section 402 (d) for any such allowance. What appellant argues is that he has overcome the presumption that the prices the appraiser found were correct, and has likewise borne the burden of proving that other prices are the correct export values of this merchandise. It is in the light of this problem of proof that I review the findings of the trial judge, the allegations of error, and the arguments advanced before us. Appellant's arguments concentrate largely on the findings of fact below, that "there is no competent evidence" to show freely offered ex-factory prices or to establish that the buyer commissionaire was a buying agent for appellant. While I might use somewhat different language to express the findings, I, too, would have found on the record before us that, on the weight of evidence of record, appellant (plaintiff below) had not shown the freely offered ex-factory prices which he claims. Appellant has seized on certain language of the opinion below to belabor an ingenious and complicated argument as to hearsay evidence. This appears the creation of a straw man for the dubious satisfaction of knocking him down. We have no issue here as to admissibility or nonadmissibility of hearsay evidence and, hence, no case for a requirement that there shall be timely objection to its introduction. Affidavits, such as that on which appellant relies, are made admissible in reappraisement appeals by statutory directive. No one may effectively object to their introduction into evidence. Congress, however, has not told this court that every statement in each such affidavit is to be taken as conclusively binding on the court, or as sole proofs of affidavit assertions. Doubtless, Congress could not effectively dictate the judicial judgment of a constitutional court. At least, no one, save only appellant, seems to have attempted to show that Congress has done so. The affidavit presents in the record one item of proof, to be weighed by the court as to its sufficiency either in overcoming or in failing to overcome the presumption. Like the trial judge, I find that the affidavit here has not overcome the presumption. Appellant's witness testified that he negotiated an f.o.b. price at the factory in Japan. He was unimpressive, under questioning, as to his understanding of what an ex-factory price is. Affiant, however, stated that the same goods, as those here in issue, could be bought by others at the same ex-factory prices; but did not state any facts in support of this conclusion, or facts as to what those asserted exfactory prices were at the times of exportation of this merchandise. Conclusory statements are not proofs of the facts on which the conclusions might be based. It is for the court to find, on the weight of factual evidence and where export value is the basis of appraisement, what price is and in what principal market. Mere assertion of the finding that is claimed by an importer, is not adequate proof of facts sufficient for the court to make the findings. As Judge Johnson, speaking for our appeals court, said in the oftcited case of Brooks Paper Company v. United States, 40 CCPA 38, C.A.D.495: "Evidentiary "Ultimate facts" Commissioner of Considered with It appears to us that the basic error of the trial court lies in the failure to properly distinguish between ultimate facts and evidentiary facts. facts" must be found from the testimony or other evidence. are reasoned conclusions drawn from the evidentiary facts. Internal Revenue v. Sharp et al., 91 F. (2d) 804, C.C.A. 3. reference to the facts or evidence by which they are established or proved, "ultimate facts" are but the logical results of the proofs, or, in other words, mere conclusions of fact reached by the processes of logical reasoning from the evidentiary facts. Hickey et al. v. Ritz-Carlton Restaurant & Hotel Co. of Atlantic City, 96 F. (2d) 748, C.C.A. 3. The ultimate facts are the issuable facts without proof of which plaintiff cannot recover. Maxwell Steel Vault Co. v. National Casket Co., 205 F. 515; see also United States v. Smith, 39 F. (2d) 851, C.C.A. 1. [Italics quoted.] The Supreme Court has defined "substantial evidence" as evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred. Substantial evidence, said the Court further, is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it 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. National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292. Under this test of substantial evidence we think it clear that a mere declaration of an essential ultimate fact in issue is not substantial evidence. As noted above, ultimate facts are to be deduced from evidentiary facts by inference, Hickey and Revenue cases, supra, and are the issuable facts which a complainant must prove to prevail, Steel Vault case, supra. This being the case, it seems clear that ultimate facts cannot at the same time also be the facts which afford a substantial basis of fact from which the fact in issue can be reasonably inferred. We believe these distinctions are implicitly recognized in the case of National Labor Relations Board v. Hudson Motor Car Co., 128 F. (2d) 528, wherein the Circuit Court of Appeals of the Sixth Circuit discussed the interrelationship between "substantial evidence," "ultimate facts," and "primary" or "evidentiary" facts. [P. 45.] In Kobe Import Co. v. United States, 42 CCPA 194, C.A.D. 593, Judge Cole said: Appellant's right to introduce evidence by means of affidavit cannot be questioned. It is expressly given to him by statute. 19 U.S.C. 1501; 28 U.S.C. 2633. The fact that the evidence in question was introduced by affidavit does not, however, affect the substantive issue of whether the statements therein appearing constitute substantial evidence of the ultimate facts sought to be proved thereby. [P. 199.] I concur in affirmance of the judgment below. INDEX A Accordions, table; musical instruments, not specially provided for, Abstract 68283 Household utensils, Abstract 68599 Metals, manufactures of, Abstract 68599 Agricultural Adjustment Act: peanuts, Abstracts 68244, 68261 Chains: Conveyor, C.D. 2433 For transmission of power, C.D. 2433 Use, classification by, Abstract 68555 Alcohol, what constitutes, C.D. 2440 Distillation of; solid content, C.D. 2449 Alcoholic compounds; terokal, C.D. 2440 Pumice stone, C.D. 2434 Regulations, compliance with, C.D. 2434 Amendment of protests: Jurisdiction of U.S. Customs Court, Abstract 68339 American goods returned: Bobbins, Abstract 68193 Clothespins, Abstract 68256 Dresser sets and wallets, Abstract 68564 Duties not paid, Abstract 68270 Grain, Abstract 68641 Palletainers, collapsible, Abstract 68245 Regulations, compliance with, Abstracts 68193, 68224, 68245, 68256, 68564, American manufacturer, what constitutes, C.D. 2453 American manufacturers' protests: Jurisdiction of U.S. Customs Court, C.D. 2453 Motions to dismiss, C.D. 2453 Angels, nylon; similitude, classification by, Abstracts 68259, 68506 Angle inserts, metal: Dishwashers, electric, parts of, Abstract 68321 Electric dishwasher, parts of; metals, manufacturers of, Abstract 68321 Animals: Miniature glass: Articles, colored, decorated, Abstract 68271 Antimony ore briquettes; mineral substances, manufactured, Abstract 68615, 68616 Appraised value, final; entered value, Abstract 68225 Sceptres, C.D. 2451 Made from fabrics with fast edges; belts, pistol, Abstract 68442 Automobiles: Acquired abroad; personal exemption, Abstract 68307 Motocarts, Abstract 68555 Parts of; pigtails for lights, Abstract 68393 Axe heads; cutting tools, C.D. 2452 Bags: B Nylon traveling v. bags, leather traveling; similitude, classification by, Abstract 68395 Reinforced paper; bamboo articles, C.D. 2454 Travelers'; rayon, manufactures of, Abstract 68324 Baked articles; bread, Abstract 68434 Baling wire; steel wire, Abstracts 68322, 68347 Bands and strips of iron or steel; steel strips, Abstract 68544 Bandsaws, steel; metals, manufactures of, Abstracts 68199, 68337, 68458, 68536, 68569, 68573, 68624, 68629 Barbecue grills, parts of; metals, manufactures of, Abstracts 68472, 68581 Rattancore: Napkin holders, Abstract 68437 Use, classification by, Abstract 68437 Bead chains; chains of beads, Abstracts 68274, 68491 Beads, not specially provided for; chains of beads, Abstracts 68274, 68491 Beams; form supports; structural steel shapes, Abstracts 68214, 68238, 68279, 68588, 68656 Belts, pistol: Articles made from fabrics with fast edges, Abstract 68442 Wearing apparel, cotton, Abstract 68442 Bicycles: General Agreement on Tariffs and Trade, Abstracts 68537, 68541, 68542, 68550, 68551, 68570, 68577, 68625, 68647, 68657 Parts of; horns: Electrical, Abstracts 68299, 68316, 68317, 68325, 68499, 68509, 68521, 68522, 68565, 68566, 68579, 68583, 68594, 68604, 68605, 68626, 68648 Rubber bulb, Abstracts 68260, 68326 Presidential proclamation (see Bicycles; General Agreement on Tariffs and Trade) Presidential proclamation, validity of, C.D. 2460 Weight (see Bicycles; General Agreement on Tariffs and Trade) |