defendant is not precluded from receiving judgment of value higher than the appraised value. Arkell Safety Bag Co. v. United States, 24 CCPA 26, T.D. 48307. I have found no decision to the contrary, and I abide the decision of the appeals court here.

I am not going to gainsay that the statute does not provide for any deductions from price as defined in section 402(b), as amended, or the force of defendant's argument, tracing and discussing the historical development of the export value statute in the various tariff acts, the judicial precedents with respect thereto, and the dicta expressed in various opinion decisions on deducting charges from price in appraisement on export value basis. American Commercial, Inc. v. United States, supra; Plywood & Door Manufacturers Corporation v. United States, 44 Cust. Ct. 541, Reap. Dec. 9581, affirmed, United States v. Plywood & Door Manufacturers Corporation, 46 Cust. Ct. 797, A.R.D. 133. But as a matter of law, and I avert to the judicial decisions defendant itself cites, charges which accrue subsequent to the time when the merchandise is in the principal market, "in condition, packed ready for shipment to the United States” have been held nondutiable in valuation on export value basis. The John Shillito Company v. United States, 5 Treas. Dec. 555, T.D. 23851; United States v. Samuel Shapiro & Co. et al., 65 Treas. Dec. 1650, Reap. Dec. 3268; John A. Steer & Co. v. United States, 30 Cust. Ct. 504, Reap. Dec. 8196, cited and quoted with approval in United States v. Paul A. Straub & Co., Inc., 41 CCPA 209, C.A.D. 553. See also United States v. The Heyman Co., Inc., 50 Cust. Ct. 564, A.R.D. 157. This general principle of law "has had the sanction of judicial approval over the course of the years since 1890." Luckytex, Ltd. v. United States, 56 Cust. Ct. 575, 579, Reap. Dec. 11119. Customs administrators have acceded to the above principle as their failure to contest, section 1501, supra, the price in these reappraisements illustrates. It is anomalous that the defendant now comes and seeks, as a matter of law, to overturn appraised nondutiable charges which, as a matter of law, are presumptively correct both as to plaintiff and defendant. 28 U.S.C. § 2633. Thus put, and considering there is no proof of the true substance of the appraised prices, aside from the presumptions, I am of opinion that the appraisements are insulated to claim and argument of defendant that they are wrong as a matter of law. Defendant, to put it another way, has selected the wrong appraisements to make its case for an export value, without deductions.

In close, I find nothing strained in the existing judicial construction that charges which accrue after merchandise is in the principal market packed ready for shipment to the United States are not part of dutiable export value as defined in section 402 (b), as amended.

Defendant's contention that the statute does not provide for any deductions, in some respects, begs the question of what the statute does say. If the test of time has any validity, the judicial construction has achieved a substantial fairness which Congress and those responsible for the administration of section 402 have undoubtedly recognized. The construction has survived reenactment of the export value statute without substantial change, and it is a settled principle that “*** interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes are deemed to have received congressional approval***." United States v. Correll et ux., 389 U.S. 299, 305.

I find as facts:

1. That the merchandise of these appeals for reappraisement consists of crushed dolomite (stone), invoiced as 3's, 4's, 6's, and screenings, exported to the United States by Port Colborne Quarries, Ltd., Canada, during the period April 20, 1962, to December 10, 1964.

2. That the stone was shipped to Breckling Concrete, Ltd., in reappraisement R66/3457; to Ontario Stone Corp. in reappraisements R66/3465, R66/3524, R66/3526, R66/3505, R66/3669, and to Osborne Concrete Stone Co. in R66/3793.

3. That the stone was appraised on export value basis, section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956.

4. That the stone was appraised at various prices, per net ton, less invoice amounts for nondutiable charges, less invoice amounts for handling fee and included duty noted by the appraiser, and that the appraiser noted the invoice amounts for trucking and stacking charges as dutiable.

5. That the appraised values represent the price at which the stone in these reappraisements was freely sold to all purchasers at wholesale as defined in section 402 (b), as amended.

6. That there is no evidence, that at the time Port Colborne Quarries, Ltd., shipped or sold the stone to Ontario Stone Corp. for export to the United States it did not also sell or offer to sell such stone for export to the United States to all purchasers at wholesale at the appraised values.

7. That there is no probative evidence that Port Colborne Quarries, Ltd., freely sold or offered to sell the stone ex-quarry, Canada, for export to the United States, without the transportation and stacking charges noted dutiable by the appraiser.

I conclude as a matter of law:

1. That export value, as defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956,

is the proper basis for determining the value of the stone in these reappraisements.

2. That the proper amount of export value for the stone in these reappraisements is the price at which the stone was freely sold or offered for sale to all purchasers at wholesale as defined in section 402(b), as amended, and section 402 (f) (1) (A).

3. That the appraised export values in these reappraisements are presumptively correct and there is no evidence of a different statutory export value, as defined in section 402 (b), as amended.

4. That the export value of the stone in these reappraisements is the appraised values.

Judgment will be entered accordingly.

(R.D. 11557)

CITY LUMBER CO. ET AL. v. UNITED STATES

Portland gray cement from Portugal

AMOUNT OF APPRAISEMENT UNDER TARIFF ACT OF 1930, AS AMENDED, NOT DISPUTED AFFIRMED

Where appraisers at Bridgeport, Conn., and Philadelphia, Pa., appraised imported portland gray cement from Portugal at values under section 402, Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, and the amounts thereof are not disputed, the appraised values will be affirmed.

ANTIDUMPING ACT OF 1921, AS AMENDED

Where statutory procedural requirements of the Antidumping Act of 1921 (19 U.S.C. § 160 (a) (c)), as amended by the Customs Simplification Act of 1954, 89 Treas. Dec. 242, T.D. 53599, have been complied with by the Treasury Department and the U.S. Tariff Commission, their respective discretionary powers delegated by Congress are not subject to review.

The Tariff Commission and the Acting Secretary of the Treasury acted within the authority delegated by Congress in finding that an industry in the United States "is being injured" by reason of the importation of portland gray cement from Portugal sold in the United States at less than fair value.

Injury, or "injured” as used in section 201 (a) of the Antidumping Act, as amended, does not only contemplate initiating an injury to domestic producers, or limiting it to causing injury, but also includes as well, injury which is concurrent, maintained, and continued when injury already exists to domestic producers of a product at the time of importation of such product at less than fair value. Congress made no provision for exclusive limitation.

The finding of dumping (26 F.R. 10476) was legal and proper, and the appraisers returned the unit foreign market values and the unit purchase prices pursuant to the Antidumping Act of 1921, as amended. As such values and prices as to the amounts thereof are not disputed, they will be affirmed.

Reappraisement R62/3973 and two others

Entered at Bridgeport, Conn.; Philadelphia, Pa.

Entry Nos. 1916, etc.

(Decided July 9, 1968)

Barnes, Richardson & Colburn (Norman C. Schwartz and Rufus E. Jarman, Jr., of counsel); Frank G. Parker, associate counsel; for the plaintiffs.

Edwin L. Weisl, Jr., Assistant Attorney General (Charles P. Deem and Sheila N. Ziff, trial attorneys), for the defendant.

Covington & Burling (Donald Hiss of counsel) as amicus curiae.

WILSON, Judge: The three appeals enumerated in the schedule attached hereto and made a part hereof were consolidated for purposes of trial. The imported merchandise consists of gray portland cement invoiced as "LIZ" brand complying with specifications ASTM C 150/56, Type 1. The cement in the first two appeals was exported from Portugal on May 7, 1960, and June 9, 1960, respectively, and was entered at Bridgeport, Conn., for the account of City Lumber Co. The cement in the third appeal was exported from Portugal on August 1, 1960, and was entered at Philadelphia, Pa., for the account of Port Everglades Steel Corp.

The appraisers at both ports of entry appraised the cement at values under section 402 of the Tariff Act of 1930, as amended by the Customs Simplication Act of 1956, 91 Treas. Dec. 295, T.D. 54165. The appraisers also reported the unit foreign market values on the respective dates of purchase, as well as the unit purchase prices under the Antidumping Act of 1921 (hereinafter ADA), sections 205 and 203, as amended (19 U.S.C. § 160 (a) (c)), as amended by the Customs Simplification Act of 1954, 89 Treas. Dec. 242, T.D. 53599, respectively, which resulted in special dumping duties under section 202 (a) of the Antidumping Act. This was done after the United States Tariff Commission (hereinafter referred to as the Commission) issued its "Determination of Injury," TC Publication 37, AA 1921-22 dated October 20, 1961, more particularly referred to infra. The Treasury Department on October 31, 1961, pursuant to section 201(a) made public its finding of dumping (26 F.R. 10476).

STATUTES AND REGULATIONS INVOLVED

Section 201 of the Antidumping Act, 1921, as amended (19 U.S.C. § 160):

Initiation of investigation; injury determination; findings; withholding appraisement; publication in Federal Register.

(a) Whenever the Secretary of the Treasury (hereinafter called the "Secretary") determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the United States Tariff Commission, and the said Commission shall determine within three months thereafter whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States. The said Commission, after such investigation as it deems necessary, shall notify the Secretary of its determination, and, if that determination is in the affirmative, the Secretary shall make public a notice (hereinafter in sections 160-173 of this title called a "finding")_ of his determination and the determination of the said Commission. For the purposes of this subsection, the said Commission shall be deemed to have made an affirmative determination if the Commissioners of the said Commission voting are evenly divided as to whether its determination should be in the affirmative or in the negative. The Secretary's finding shall include a description of the class or kind of merchandise to which it applies in such detail as he shall deem necessary for the guidance of customs officers.

(c) The Secretary, upon determining whether foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and the United States Tariff Commission, upon making its determination under subsection (a) of this section, shall each publish such determination in the Federal Register, with a statement of the reasons therefor, whether such determination is in the affirmative or in the negative. May 27, 1921, c. 14, § 201, 42 Stat. 110; Sept. 1, 1954, c. 1213, Title III, § 301, 68 Stat. 1138; Aug. 14, 1958, Pub. L. 85-630, §§ 1, 4(b), 72 Stat. 583, 585.

19 CFR (revised as of January 1, 1961), Part 201-United States Tariff Commission, Rules of General Application:

§ 201.7 [page 569] Methods employed in obtaining information.

(a) Questionnaires, correspondence, and field work. In obtaining information necessary to carry out its functions and duties, the Commission may employ any means authorized by law. It is the practice of the Commission to obtain much of its information through the use of questionnaires and correspondence, and through field work by duly authorized members of the Commission's staff who interview such manufacturers, farmers, distributors, importers, representatives of labor, consumers, and others, as may be necessary to obtain the required information. Official requests for information required by the Commission are made either in writing or orally, and responses are received either in writing or orally, depending upon the nature of the information requested and the use to be made of it.

(c) Formal hearings. In formal proceedings, the Commission obtains information from the evidence presented at hearings as well as through independent investigation by the Commission and its staff of