FoRD, Judge:
This is an. application for review of a decision and judgment of the trial court holding certain imported canvas-topped, rubber-soled footwear to be subject to appraisement on the basis of American selling price as defined in section 402a (g), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165. A. Zerkowitz & Co., Inc. v. United States, 55 Cust. Ct. 643, Reap. Dec. 11095.
The footwear the subject of the reappraisement appeals at bar which were consolidated for trial is of Japanese manufacture and origin, is composed of a cotton canvas upper and a rubber or rubber substitute sole, and is generally described as a circular vamp tennis-type oxford shoe. Footwear of this kind appears on the Final List promulgated by the Secretary of the Treasury in T.D. 54521, by reason of which, valuation of same for customs purposes is governed by section 402a, Tariff Act of 1930, as amended by the Customs Simplification Act of 1956.
Apraisement of the involved footwear under section 402(g) was predicated upon Presidential Proclamation No. 2027, in T.D. 46158, 63 Treas. Dec. 232, and the so-called flexible tariff provisions of section 336, Tariff Act of 1930. The appraisers adopted as the domestic counterpart shoe the “Rover” tennis-type oxford shoe manufactured in the United States by the United States Rubber Company and marketed under its U.S. Keds label, returning the following prices, less 2 percent cash discount, packed, for the period of the involved exportations, as representing the selling prices for the domestic counterpart article:
Price Tear Children’» sizes Juniors’ sizes Women’s sizes
5-12 12% -3 3%-10
1958-59 $2.10 $2.25 $2.50
1959-60 2.20 2.35 2.65
2.40
Appellant, the plaintiff-importer below, contended before the trial court and contends here that the imported footwear is not like or similar to the domestic counterpart footwear selected for appraisement purposes, nor like or similar to other domestically produced canvas-rubber tennis-type oxford shoes, and that the counterpart shoe and other domestically produced shoes as aforesaid were not offered for [988]*988sale or sold under conditions conforming to the statutory American selling price formula. In support of these contentions appellant adduced below the testimony of an officer and an employee of the importing firm here involved, two shoe wholesalers, a shoe retailer, a shoe buyer, a textile engineer, a college professor of marketing, two customs examiners and two customs appraisers, an officer and an employee of a subsidiary company of the United States Rubber Company, and an officer and employees of other domestic manufacturers of canvas-rubber footwear. Appellant placed in evidence numerous documents, among which are price lists and sales policies of U.S. Rubber Company and other domestic footwear manufacturers, a shoe patent, and laboratory test reports on footwear samples, as well as samples of the imported footwear and of domestic footwear manufactured by U.S. Rubber Company. In addition, appellant argued both before the trial court and here that appraisement of the involved merchandise on the basis of the American selling price formula is illegal, contending that the Protocol of Terms of Accession by Japan to the General Agreement on Tariffs and Trade, T.D. 53865, concluded between the United States and Japan pursuant to the Trade Agreements Act abrogated the flexible tariff statute and customs treatment of merchandise such as that at bar, returning customs treatment of such imported merchandise to its earlier treatment which in this case is conceded to be paragraph 1530(e), Tariff Act of 1930.
In support of the appraised values the Government adduced the testimony of the New York examiner of merchandise, and an officer and employees of the United States Rubber Company with a view toward establishing that the imported footwear was similar to the “Rover” oxford and that the “Rover” selling prices conformed to the American selling price formula. The Government, the appellee here, also contends throughout that the statutory American selling price basis of valuation is the only proper basis for appraising the involved merchandise. The parties have also stipulated that should the courts determine that American selling price is not the proper basis for valuation of the footwear at bar, that the invoice prices represent the correct export value for this merchandise, and that there is no higher foreign value therefor.
On the instant record the court below sustained the appraised values. First, the trial court rejected appellants contention that the Trade Agreements Act of 1934 rendered inoperative the Presidential Proclamation No. 2027 when the Japanese Trade Agreement, supra, became effective in 1955, stating (55 Cust. Ct. at page 647) :
The broad purpose of the Trade Agreements Act of 1934 and its subsequent extensions (section 350(a) of the Tariff Act of 1930, as amended, 19 USC § 1351, as amended) was to expand the foreign trade of the United States by permitting the President to enter into reciprocal trade agreements with other nations [989]*989by which existing duties or import restrictions would be modified within the limits provided. Star-Kist Foods, Inc. v. United States (Bruno Scheidt, Inc., Party in Interest), 47 CCPA 52 C.A.D. 728. Section 350(a) 2(a) was included in order that trade agreement concessions might not be nullified through the procedure provided in section 336. Existing proclamations would not have this effect since they would be known to the parties when trade agreements were negotiated and conditions under them would be the basis of negotiation. Where a rate of duty has been increased by a Presidential proclamation under section 336, it may be reduced by a trade agreement entered into under the authority of section 350(a), but if the trade agreement is terminated, the rate of duty reverts to that provided for in the Presidential proclamation. Barclay & Company, Inc. v. United States, 47 CCPA 133, C.A.D. 745. The section 336 proclamation is not abrogated by the trade agreement or the proclamation proclaiming it but is merely suspended.
With respect to appellant’s contention that the basis of appraisement here is illegal, raised in the late trial stages, we are in agreement with the trial court’s finding of legality. Apart from what the trial court had to say on the maitter as hereinbefore noted, we are of the opinion that 19 U.S.C.A., section 1352(a), the pertinent portion of which reads:
The provisions of section 1336 of this title shall not apply to any article with respect to the importation of which into the United 'States a foreign-trade agreement has been concluded pursuant to this part, or to any provision of any such agreement. * * *
addresses itself solely to the use of section 1336 as a procedural device, and that what is intended by the language above noted is the barring of the use of that statutory procedure in derogation of the operation of a trade agreement concluded pursuant to section 1351. To admit of the broad construction of section 1352 for which appellant contends would, in our view, require the addition of language to that above noted so as to make the statute applicable not only to the provisions of section 1336 of this title, but to make it also applicable to the customs treatment of articles pursuant thereto.
In any case, a construction of section 1352 as embracing prior proceedings and determinations made under section 1336 would seem to lead to redundancy. The obvious, if not avowed purpose of the Trade Agreements Act of 1934 as expressed in section 1351 is to empower the President to undo or nullify (at least temporarily) the tariff restrictions brought about by and resulting from the provisions of section 1336 among other things. Indeed, the extensive use of the Trade Agreements Act to this end to which both parties advert in the briefs attest to such purpose. Hence, Congress, having enacted legislation in section 1351 which enabled the President to effectively deal with restrictive tariff treatment of articles the subject of section 1336 (during the life of a trade agreement concession covering such articles), would, under [990]*990appellant’s interpretation oí section 1352, be deemed to have come back in the succeeding statute (section 1352) to deal with the same subject matter again. Or what is equally as bad as surplusage of language, is that under appellant’s construction of section 1352 the efficacy of section 1351 trade agreement proceedings to affect existing section 1336 is non-existent or is left in doubt apart from the provisions of section 1352. An interpretation of section 1352 which leads to the inharmonious results which appellant’s view invites is to be avoided over one that implements the legislative intent to broaden rather than restrict trade with foreign countries.
As we view the situation, section 1336 pertaining to canvas-rubber footwear of the type here involved effected only a change in the basis of valuation of such footwear, and not a change in the rate of duty assessable against such imported footwear. The subsequent section 1351 trade agreement pertaining to such merchandise effected only a modification of the duty rate on such footwear, and not a change in the basis of valuation. Hence, insofar as the impact of section 1351 upon section 1336 is concerned, it would seem following the reasoning of our appeals court in Barclay & Company, Inc. v. United States, 47 CCPA 133, C.A.D. 745, that section 1336 was at best only suspended, and this, pro tanto to the extent of the duty rate, leaving intact the basis of valuation of the merchandise affected by section 1336. In view of the bargaining limitations placed upon the actions of the trade negotiators perforce of section 1351, it is difficult to see how they could have effected a change in the basis of valuation of the subject merchandise within the framework of such limitations by their actions even if they were of a mind to do so. We are, therefore, under the circumstances attendant here, inclined to agree with appellee’s argument that the trade agreement rate of duty constitutes an American selling price rate of duty within the meaning of section 402(a)(4), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, since the trade agreement did nothing to abrogate the existing basis of valuation.
Moreover, we do not find any language in the Trade Agreements Act of 1934 which operates to regulate, prescribe, or circumscribe Presidential courses of action in negotiating trade concessions in bilateral or multilateral agreements within the expressed statutory limits, nor any prohibition therein against recognition by contracting parties to such trade agreements of the American selling price basis of valuation or aiiy other basis of valuation as a circumstance in the negotiation of concessions.
In view of our determination, supra, and since the imported shoes have “uppers” composed of the specified material and appellant does not challenge the validity of the Presidential proclamation, except as heretofore determined, appraisement must be made under the provisions of section 402(g), supra, if all the elements are present. This, [991]*991of course, is based upon the proviso that the domestic competitive article selected by the appraiser is like or similar to the imported article as required by section 336, supra. Such determination was made by the appraiser and his action under the law carries with it a presumption of correctness.
The question of whether an imported article is like or similar to a domestic article was before the court in Japan Import Co., Inc. v. United States, 2 Cust. Ct. 926, Reap. Dec. 4568, affirming 1 Cust. Ct. 607, Reap. Dec. 4389. The court therein set forth the following factors to be considered in making their determination:
1. Similarity of material
2. Commercial interchangeability
3. Adaptability to the same use
4. Competitive character
The record establishes and an ocular inspection of the imported article and the domestic shoe confirm similarity of material. Whether the cushioned innersole and shockproof arch cushion are recognized differences, we nevertheless feel they are legally “similar” within the purview of section 336, supra. The differences are not unlike those in Mutual Supply Co. v. United States, 14 Cust. Ct. 291, Reap. Dec. 6086, wherein the court stated: “They are the same in shape, in design, and practically the same in construction. Appellant points out that the presence of a strip of metal in the soles of the domestic shoe which tends to make it more rigid is an important point of dissimilarity.” This phase was also discussed at length in the case of Albert F. Maurer Co. v. United States, 51 CCPA 114, C.A.D. 845. Of particular significance are the following pertinent observations made by the court:
In summary, it is quite clear that the imported and the American rubbers have many points of similarity and many points of dissimilarity. They both serve the same purpose, to keep the feet ■dry. They are made of substantially the same material. Both are flexible enough to fold up and stuff in a case or pocket. Though there is a measurable difference in hardness according to the evidence, it would not be apparent to the average customer.
The true question here, as we see it, is whether, in order to carry out the intent of Congress in enacting the flexible tariff law, section 336, we should affirm the holding that the Moderna and Tingley rubbers are legally “similar” notwithstanding their differences.
We must not lose sight of the basic fact that the purpose of the Presidential Proclamation of 1933, and the statutory purpose which it implemented, was protection of American manufacturers and labor from foreign price competition with respect to the goods named in the proclamation. Among those goods was “footwear, wholly * * * of india rubber * * *.” The proclamation increased the tariff on such goods to 25% ad valorem based upon the Ameri[992]*992can selling price of “like or similar articles” made in the United States. Surely tbe underlying principle is to protect American manufacturers from foreign competition where foreign goods sufficiently “similar” to them to compete with them are imported. H. H. MacDonaugh & Co. v. United States, 38 CCPA 36, C.A.D. 436. If the collector can find no American article sufficiently similar to the one imported to create market competition with it, obviously no one is going to be disadvantaged, there is no point in applying the proclamation, and as a matter of law it would not apply. On the other hand, where imports are sufficiently similar to American goods to compete directly with them, and the goods are within a category named in the proclamation, it would seem to be within the intent of Congress that they receive the protection the proclamation was intended to afford. The whole scheme was to protect specified American manufactures whenever and if foreign competing merchandise came in by charging the latter with an ad valorem duty based on American selling price of the American-made protected articles, in the words of the statute itself, in order to “equalize the differences in the costs of production of the domestic article and the like or similar foreign article * * *.”
In taking into consideration the basic purpose behind section 336, we do not give much weight to prior adjudications involving the meaning of the word “similar” as it is used in other provisions of the Tariff Act. The problem is one of economics, not semantics. It therefore serves no useful purpose and only creates confusion to discuss all the shades of meaning of the word “similar” or how it has been construed in other cases involving other sections of the statutes.
The principle that goods may be legally “similar” for the purposes of section 336 notwithstanding the existence of numerous differences has been established in prior decisions. Japan Import Co. v. United States, 24 CCPA 167, T.D. 48642.
We are of the opinion that the innersole and arch fall within the same category of differences.
Commercial interchangeability and adaptability to the same use may be considered together since it is obvious that in an article such as this commercial interchangeability would in fact be based upon use. Notwithstanding the difference in the soles of the two types of tennis shoes and the testimony of their use on clay tennis courts, we are of the opinion that the imported article and the “Rover” are commercially interchangeable and adaptable to the same use. The additional reasoning as set forth in the opinion below relative to price, quality, advertisment, and retail sales outlets are adopted in our finding of compliance with the determining factors as set forth, supra, including competitiveness of character which we additionally would add the testimony of the witnesses of the domestic producers of such shoes, who all felt such shoes are competitive. Hence, the provisions of section 336, supra, are met.
[993]*993In view of the foregoing, appraisement must be made under the provisions of paragraph 402(g), supra, if such sales meet the requirements of said section, supra.
Section 402a (g) provides as follows:
The American selling price of any article manufactured or produced in the United States shall be the price, including the cost of all containers and coverings of whatever nature and all other costs, charges, and expenses incident to placing the merchandise in condition packed ready for delivery, at which such article is freely offered for sale for domestic consumption to all purchasers in the principal market of the United States, in the ordinary course of trade and in the usual wholesale quantities in such market, or the price that the manufacturer, producer, or owner would have received or was willing to receive for such merchandise when sold for domestic consumption in the ordinary course of trade and in the usual wholesale quantities, at the time of exportation of the imported article.
In the MacDonaugh case, siopra, involving the same proclamation and type of merchandise, the court made the following statement:
There are really two definitions. The first embraces the phrase “freely offered for sale,” which long has been used in tariff acts in defining (1) foreign value, (2) export value, and (3) United States value. (See paragraphs (c), (d), and (e) of section 402 of the Tariff Act of 1930.) The phrase as so used has been construed often and need not be discussed here.
The second definition is alternative. It is embraced in the clause reading, “or the price that the manufacturer, producer, or owner would have received or was willing to receive for such merchandise when sold in the ordinary course of trade and in the usual wholesale quantities, at the time of exportation of the imported article.”
So far as we have been able to ascertain, the last clause quoted appeared for the first time in section 402(f) of the Tariff Act of 1922. Obviously, it is a very broad provision, evidently inserted to supplement the first provision in a manner favorable to domestic industries.
* * * * * * *
Certainly all the pertinent testimony of Pennington and other witnesses is to the effect that the United States Rubber Company would have been “willing to receive” the list prices of the shoes (allowing discounts as is customary in business transactions) “sold in the ordinary course of trade and in the usual wholesale quantities, at the time of exportation of the imported article.”
It is apparent that the alternative definition as set forth in section 402a(g) does not require that the domestic merchandise must-be freely offered, etc., but only that there be a price which the manufacturer, producr or owner would have received or been willing to receive.
Since the method of appraisement under said section 402a (g) is alternative in the event the primary method cannot be established or [994]*994been shown not to exist, it is nevertheless incumbent upon the party challenging a presumptively correct appraisement to also negate the alternative existence of American selling price. Hudson Shipping Co., Inc. v. United States, 43 CCPA 19, C.A.D. 604.
We are of the opinion that the merchandise is freely offered for sale to all purchasers at wholesale in the ordinary course of trade. The record herein establishes that price lists are circulated in the trade and merchandise is in fact sold to retailers and two wholesalers while not being sold to other wholesalers or discount houses. This situation is not unlike the facts that existed in the MaeDonaugh case, supra, where the court said:
From Pennington’s testimony, it is apparent, we think, that the company which he represented was not actually trying to sell, in the region of which San Francisco was the principal market, shoes of the type here involved to any concerns other than retailers. In all the Pacific Coast region the company had just one jobber customer. It was located at Sacramento, California. There were other jobbers in the region. There is no evidence showing that salesmen called upon such jobbers, or that their patronage was sought by mail, or in any other manner, but, on the other hand, there is no evidence that any jobbers ever sought to become customers, or that the United States Rubber Company ever received an offer from any concern to purchase which it refused.
Certainly all the pertinent testimony of Pennington and other witnesses is to the effect that the United States Rubber Company would have been “willing to receive” the list prices of the shoes tallowing discounts as is customary in business transactions) “sold in the ordinary course of trade and in the usual wholesale quantities, at the time of exportation of the imported article.” [Emphasis quoted.]
The record also establishes that sales to retailers in the ordinary course of trade were at list prices less 2 per centum except at certain times of the year when different seasonal discounts were allowed and special discounts were allowed the two wholesalers. While the record is meager on the question of usual wholesale quantity, we are of the • opinion that this is sufficient evidence adduced to establish said quantity to be between 12 pairs and 480 pairs. The record indicates all such sales are at list price less 2 per centum which is basically, according to the record within the exception of seasonal discounts and wholesaler discount, the manner in which all sales are made. With respect to the principal market, the testimony of Mr. Anastasio, General Sales Manager, Consumer Goods, Footwear Division, United States Rubber Company, establishes to our satisfaction that New York City is the principal market.
In any event since the alternative method of appraisement under American selling price does not necessitate compliance with the requirement in the primary portion of section 402a (g) and since if the [995]*995party contesting the appraisement is able to eliminate the primary requirement, it still has the burden of negating the existence of American selling price. Under the alternative method, the importer has clearly failed to meet its burden of proof. The record herein clearly establishes, not only that the manufacturer selected, United States Rubber Company, but Bata Shoe, B. F. Goodrich, Bristol Manufacturing, and Tyer Rubber Company, all produced footwear which they considered comparable. Whether or not these firms met the primary requirements of section 402a (g), they did establish the prices they would be willing to receive which complies with the ultimate requirements of said section 402a(g).
The dissenting opinion brings to our attention that merchandise covered by appeal R61/6166 contains no notation of appraisement. A review of these entry papers does indicate that no notation of ap-praisement is contained therein with respect to tennis shoes. All other items covered by the invoice appear to carry the appropriate notation of appraisement and the reverse side of the “Summary of Entered Value,” customs Form 6417, contains the signature of the acting deputy appraiser indicating appraisement. Since the entry was deemed appraised by the designated official, we must assume since no advance was made that the appraisal was as entered. This is, of course, based on the premise that a Government official is presumed to have acted in accordance with the law. United States v. C. O. Mason, Inc., etc., 51 CCPA 107, C.A.D. 844. The record having established the proper value -to be the prices reflected in the price list for the “Rover,” the value of said merchandise is as reflected therein.
It is to be noted, as pointed out in the dissenting opinion, that in a number of entries the appraised value differed from the price list of U.S. Rubber. Former footwear examiner, Alexander, indicated the appraisement was made “by all reasonable ways and means.” This is not a unique situation and in fact is sanctioned by law.1
Upon the record here presented the court finds as facts:
1. That the merchandise involved herein consists of so-called tennis oxfords, having uppers wholly or in chief value of cotton and soles wholly or in chief value of rubber, exported from Japan during 1958, 1959, and 1960.
2. That the imported merchandise was of the class or kind described in Presidential Proclamation No. 2027, dated February 1,1933, 63 Treas. Dec. 232, T.D. 46158.
3. That the imported merchandise was of the kind described in paragraph 1530(e), Tariff Act of 1930, as modified by the Protocol [996]*996of Terms of Accession by Japan to the Genera] Agreement on Tariffs and Trade, T.D. 53865.
4. That the imported merchandise was appraised on the basis of the American selling prices of a circular vamp oxford produced by the United States Rubber Company, called the “Royer,” a style in the line sold under the registered brand name “U. S. Keds.”
5. That the Rover and the imported merchandise had a similar appearance, were made of similar material, were of similar construction, had substantially the same uses and purposes, and would compete for purchase by many of the same persons. That the Rover was heavily advertised and the imported article was not; that the Rover was somewhat superior in durability and sold at a higher price; that the channels of distribution were substantially but not completely different.
6. That, in the ordinary course of trade, the Rover was freely offered and sold only at list prices, less 2 per centum, the price not varying according to the quantity purchased, except for a surcharge of 50 cents for a purchase under 12 in quantity. That most sales were to retailers. That no additional discount was offered to wholesalers- or jobbers, except for two in -a restricted category. That factory makeup discounts were allowed for orders accepted from August 1 through December 31, for shipment December 1 through April 25, and quantity discounts for at-once orders of 480 pairs or more in case lots of 1 item.
7. The principal market of said merchandise is New York City.
8. That the manufacturer received or was willing to receive for the Rover, when sold in the ordinary course of trade and in the usual wholesale quantities at the time of exportation of the imported article, the list prices, less 2 per centum, which prices were equal to the appraised values.
9. That the merchandise covered by appeal R61/6166 was appraised as entered no notation by the appraising officer appearing on the entry.
The court therefore concludes as matters of law :
1. That Presidential Proclamation No. 2027 has not been abrogated or suspended by the modification of paragraph 1530(e), Tariff Act of 1930, by the Protocol of Terms of Accession by Japan to the General Agreement on Tariffs and Trade, T.D. 53865.
2. That the proper basis for determining the values of the imported merchandise is the American selling price, as defined in section 402a (g), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956,70 Stat. 943.
3. That the U. S. Keds “Rover” is similar to the imported merchandise.
[997]*9974. That the American selling prices of the IT. S. Keds “Rover” were those found by the appraiser.
5. That the dutiable values of the imported merchandise are the appraised values.
Judgment will be entered accordingly.