Mollison, Judge;
This case is before us on rehearing granted after the rendering of the decision of this division in the case of United [554]*554States v. American Agar & Chemical Co., 30 Cust. Ct. 607, A. R. D. 19, which reversed the decision of the trial judge, reported in American Agar & Chemical Co. v. United States, 27 Cust. Ct. 383, Reap. Dec. 8020, insofar as it held that a foreign value existed for the bleached flake agar-agar in question, and that such value was $2.25 per pound, net packed, f. o. b. Ensenada, Mexico.
In our previous decision, we held that there was no market and no foreign value for merchandise such as or similar to that here involved for home consumption in Mexico, inasmuch as no purchasers for the offered merchandise could be found. The implications of that holding have been brought to our attention by timely motion for rehearing, we granted the same for the purpose of reexamining the matter.
The findings of fact and conclusions of law contained in the previous decision, with respect to the nonexistence of merchandise similar to that here involved and the absence of an export value for merchandise such as that here involved, have not been disputed and are not involved at this time. We adhere to the findings and conclusions made in those respects and address ourselves to the question of whether the evidence before us will support the claim made on behalf of the plaintiff-appellee that a foreign value, as that term is defined in section 402 (c), as amended, of the Tariff Act of 1930, existed for merchandise such as that at bar, and, if so, whether the evidence shows what that value was.
The evidence as to the existence of offers to sell bleached flake agar-agar such as that here involved at or about the time of exportation of the instant merchandise is contained in the oral testimony given by Benjamin W. Shipman, vice president of the plaintiff company, and by Lucian K. Small, president of the said company, and in the affidavit of Francisco Cendejas, president of Alga-Mex, S. A. de C. V., shown to be the only producer of agar-agar in Mexico at the time here pertinent other than the exporter of the merchandise at bar.
It appears that the knowledge of the plaintiff’s officers as to the offers for sale of bleached flake agar-agar such as that here involved came about in the following manner: The plaintiff company was interested in the exporter of the instant merchandise, Compañía Mexicana de Agar, S. de R. L. (hereinafter referred to as C. M. A), from two standpoints: (1) The plaintiff company had furnished money for the equipment and construction of the plant of C. M. A., and (2) the plaintiff company had the right to purchase excess raw materials of C. M. A. and the obligation, up to August 31, 1944, to purchase such finished agar-agar as C. M. A. did not sell in Mexico.
About the time of the exportation of the merchandise herein, the plaintiff company found that agar-agar was plentiful in the United States, and as the time when its obligation to purchase such agar-agar as was produced by C. M. A. and not sold in Mexico was approaching [555]*555a termination, the two officers of the plaintiff company sought to assist C. M. A. in disposing in Mexico of its accumulating inventory of agar-agar. It appears that, under its charter from the Mexican Government, C. M. A. was obliged to offer its merchandise for sale for domestic consumption in Mexico and that C. M. A. made approaches through correspondence with possible users in Mexico to sell its agar-agar in Mexico, but was unsuccessful in attracting customers.
On behalf of C. M. A., Mr. Shipman made inquiry at the American Embassy and of the Foreign Economic Administration unit in Mexico City, consulted trade publications, magazines, directories, etc., of the industries of Mexico which might use agar-agar, and approached prospects found through such sources personally and by letter, without success in finding a purchaser. According to his testimony, the terms of the offer were 26.14 Mexican pesos per kilo, equivalent to U. S. $2.45 per pound, f. o. b. Ensenada, packed, the price being in no way affected by the quantity purchased.
Mr. Shipman's testimony is corroborated by that of Mr. Small and the affidavit of Mr. Cendejas and is not controverted by any evidence offered in behalf of the defendant.
We are of the opinion from the entire record that agar-agar was a legitimate product to be offered for sale in Mexico. By that we mean that there was nothing in the nature of the product which would indicate that it was not marketable or salable in Mexico for home consumption, and apparently the only reason why it was not sold in Mexico was purchaser indifference or apathy. We are also of the opinion that real and actual efforts were made to sell the product and that the offers were not sham or feigned or made for some purpose other than actually to sell the merchandise.
We, therefore, conclude that the offers were bona fide, and, as we have indicated, the terms of the offers are established by the evidence as 26.14 Mexican pesos per kilo, equivalent to U. S. $2.45 per pound, f. o. b. Ensenada, packed, for any quantity. It is noted that there seems to be some conflict in the evidence as to whether the offered price for domestic consumption in Mexico was 24 pesos per kilo, equivalent to U. S. $2.25 per pound, as found by the trial court, but, in our view, the preponderance in weight of the evidence indicates that the said offered price was 26.14 Mexican pesos per kilo.
The only question remaining is whether the offers made, under the circumstances detailed above, satisfy the requirements of the statute to establish the existence of a foreign value for the merchandise. In our previous decision, citing H. Redfern v. United States, Reap. Circ. 1207, affirmed in Same v. Same, 17 C. C. P. A. (Customs) 117, T. D. 43453, we held, in effect, that a previous history of actual sales of the product in question would be necessary in order to establish the existence of a market, and that the existence of such market was a sine quo non of foreign value- under the statute.
[556]*556In the brief filed in support of the motion for rehearing herein, counsel for the appellee pointed out that, in its decision in the Bedfern case, our appellate court specifically and expressly refrained from deciding the question of whether or not sales of merchandise such as or similar to that in issue must be’shown in order to establish that there was a free offering for sale of the same under the requirements of the statute. Moreover, counsel referred to other holdings and observations by our appellate court to the effect that bona fide offers for sale are sufficient to establish a foreign or export value, notwithstanding no actual sales may have been made. Among cases in which such holdings or observations have been made are Robinson & Co. et al. v. United States, 13 Ct. Cust. Appls. 644, T. D. 41486; Kuttroff, Pickhardt & Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 176, T. D. 41698; Kuttroff-Pickhardt & Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 381, T. D. 42032; Sandoz Chemical Works v. United States, 13 Ct. Cust Appls. 466, T. D. 41365; United States v. Baldwin Universal Co., 18 C. C. P. A. (Customs) 394, T. D. 44641 ; Oceanic Trading Co. v. United States, 21 C. C. P. A. (Customs) 146, T. D. 46478;
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Mollison, Judge;
This case is before us on rehearing granted after the rendering of the decision of this division in the case of United [554]*554States v. American Agar & Chemical Co., 30 Cust. Ct. 607, A. R. D. 19, which reversed the decision of the trial judge, reported in American Agar & Chemical Co. v. United States, 27 Cust. Ct. 383, Reap. Dec. 8020, insofar as it held that a foreign value existed for the bleached flake agar-agar in question, and that such value was $2.25 per pound, net packed, f. o. b. Ensenada, Mexico.
In our previous decision, we held that there was no market and no foreign value for merchandise such as or similar to that here involved for home consumption in Mexico, inasmuch as no purchasers for the offered merchandise could be found. The implications of that holding have been brought to our attention by timely motion for rehearing, we granted the same for the purpose of reexamining the matter.
The findings of fact and conclusions of law contained in the previous decision, with respect to the nonexistence of merchandise similar to that here involved and the absence of an export value for merchandise such as that here involved, have not been disputed and are not involved at this time. We adhere to the findings and conclusions made in those respects and address ourselves to the question of whether the evidence before us will support the claim made on behalf of the plaintiff-appellee that a foreign value, as that term is defined in section 402 (c), as amended, of the Tariff Act of 1930, existed for merchandise such as that at bar, and, if so, whether the evidence shows what that value was.
The evidence as to the existence of offers to sell bleached flake agar-agar such as that here involved at or about the time of exportation of the instant merchandise is contained in the oral testimony given by Benjamin W. Shipman, vice president of the plaintiff company, and by Lucian K. Small, president of the said company, and in the affidavit of Francisco Cendejas, president of Alga-Mex, S. A. de C. V., shown to be the only producer of agar-agar in Mexico at the time here pertinent other than the exporter of the merchandise at bar.
It appears that the knowledge of the plaintiff’s officers as to the offers for sale of bleached flake agar-agar such as that here involved came about in the following manner: The plaintiff company was interested in the exporter of the instant merchandise, Compañía Mexicana de Agar, S. de R. L. (hereinafter referred to as C. M. A), from two standpoints: (1) The plaintiff company had furnished money for the equipment and construction of the plant of C. M. A., and (2) the plaintiff company had the right to purchase excess raw materials of C. M. A. and the obligation, up to August 31, 1944, to purchase such finished agar-agar as C. M. A. did not sell in Mexico.
About the time of the exportation of the merchandise herein, the plaintiff company found that agar-agar was plentiful in the United States, and as the time when its obligation to purchase such agar-agar as was produced by C. M. A. and not sold in Mexico was approaching [555]*555a termination, the two officers of the plaintiff company sought to assist C. M. A. in disposing in Mexico of its accumulating inventory of agar-agar. It appears that, under its charter from the Mexican Government, C. M. A. was obliged to offer its merchandise for sale for domestic consumption in Mexico and that C. M. A. made approaches through correspondence with possible users in Mexico to sell its agar-agar in Mexico, but was unsuccessful in attracting customers.
On behalf of C. M. A., Mr. Shipman made inquiry at the American Embassy and of the Foreign Economic Administration unit in Mexico City, consulted trade publications, magazines, directories, etc., of the industries of Mexico which might use agar-agar, and approached prospects found through such sources personally and by letter, without success in finding a purchaser. According to his testimony, the terms of the offer were 26.14 Mexican pesos per kilo, equivalent to U. S. $2.45 per pound, f. o. b. Ensenada, packed, the price being in no way affected by the quantity purchased.
Mr. Shipman's testimony is corroborated by that of Mr. Small and the affidavit of Mr. Cendejas and is not controverted by any evidence offered in behalf of the defendant.
We are of the opinion from the entire record that agar-agar was a legitimate product to be offered for sale in Mexico. By that we mean that there was nothing in the nature of the product which would indicate that it was not marketable or salable in Mexico for home consumption, and apparently the only reason why it was not sold in Mexico was purchaser indifference or apathy. We are also of the opinion that real and actual efforts were made to sell the product and that the offers were not sham or feigned or made for some purpose other than actually to sell the merchandise.
We, therefore, conclude that the offers were bona fide, and, as we have indicated, the terms of the offers are established by the evidence as 26.14 Mexican pesos per kilo, equivalent to U. S. $2.45 per pound, f. o. b. Ensenada, packed, for any quantity. It is noted that there seems to be some conflict in the evidence as to whether the offered price for domestic consumption in Mexico was 24 pesos per kilo, equivalent to U. S. $2.25 per pound, as found by the trial court, but, in our view, the preponderance in weight of the evidence indicates that the said offered price was 26.14 Mexican pesos per kilo.
The only question remaining is whether the offers made, under the circumstances detailed above, satisfy the requirements of the statute to establish the existence of a foreign value for the merchandise. In our previous decision, citing H. Redfern v. United States, Reap. Circ. 1207, affirmed in Same v. Same, 17 C. C. P. A. (Customs) 117, T. D. 43453, we held, in effect, that a previous history of actual sales of the product in question would be necessary in order to establish the existence of a market, and that the existence of such market was a sine quo non of foreign value- under the statute.
[556]*556In the brief filed in support of the motion for rehearing herein, counsel for the appellee pointed out that, in its decision in the Bedfern case, our appellate court specifically and expressly refrained from deciding the question of whether or not sales of merchandise such as or similar to that in issue must be’shown in order to establish that there was a free offering for sale of the same under the requirements of the statute. Moreover, counsel referred to other holdings and observations by our appellate court to the effect that bona fide offers for sale are sufficient to establish a foreign or export value, notwithstanding no actual sales may have been made. Among cases in which such holdings or observations have been made are Robinson & Co. et al. v. United States, 13 Ct. Cust. Appls. 644, T. D. 41486; Kuttroff, Pickhardt & Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 176, T. D. 41698; Kuttroff-Pickhardt & Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 381, T. D. 42032; Sandoz Chemical Works v. United States, 13 Ct. Cust Appls. 466, T. D. 41365; United States v. Baldwin Universal Co., 18 C. C. P. A. (Customs) 394, T. D. 44641 ; Oceanic Trading Co. v. United States, 21 C. C. P. A. (Customs) 146, T. D. 46478; United States v. T. E. Ash (American Askania Corp.); Freedman & Slater, 22 C. C. P. A. (Customs) 395, T. D. 47401; and White Lamb Finlay, Inc. v. United States, 29 C. C. P. A. (Customs) 199, C. A. D. 192.
A perusal of the opinions in these cases leads to the conclusion that actual sales are not necessary in order to establish the existence of a value for the merchandise involved under the requirements of the valuation statute. Further, it would seem that it is not necessary that a demand for the offered product exist or that there be persons desiring to purchase the same. In two of the cases, to wit, Robinson & Co. et al. v. United States, 13 Ct. Cust. Appls. 644, T. D. 41486, and Kuttroff-Pickhardt cfc Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 381, T. D. 42032 (citing and quoting from Kuttroff, Pickhardt & Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 176, T. D. 41698), “demand” and “persons desiring to purchase” were referred to in connection with offers for sale, but the element involved in those references was evidence of the bonafides of the offers.
In White Lamb Finlay, Inc. v. United States, 29 C. C. P. A. (Customs) 199, C. A. D. 192, at page 207, our appellate court indicated the approach to this question in the following language:
It is true that in the case of United States v. Baldwin Universal Co., supra, we stated, as hereinbefore quoted, that in any given case the facts might be such as to require evidence of sales under a price list in order to establish such price list as effective; but it is plain that in such cases evidence of sales would be considered only for the purpose of establishing the bona fides of the offer. [Italics added.]
Here there is no question as to the bonafides of the offer, and we hold that the nature and terms thereof, as shown by the record, bring it within the requirements of the statute.
[557]*557It is argued on behalf of the appellant that the words “in the principal markets” and “in the ordinary course of trade,” found in the valuation statute, indicate that the value contemplated thereby must be predicated upon sales as well as offers, the theory being that “trade” and “markets” imply a previous course of dealing in the merchandise involved. We do not consider this to be a valid argument in view of the many cases, hereinbefore cited, holding that actual sales are not required under the valuation statute, it being sufficient if the merchandise is actually offered for sale, and the offers bona fide. It would appear in this case that the “ordinary course of trade” was the manner of doing business conducted by C. M. A., the only offeror, and that the “principal market” was the place in which the merchandise was offered for sale, Ensenada, Mexico.
It was suggested in our previous decision that there existed on the part of the offeror only a “willingness to sell.” “Willingness to sell” connotes a passive attitude which, upon reflection, we are of the opinion does not properly characterize the efforts made by C. M. A. and the president of the plaintiff company in its behalf to sell the merchandise for home consumption in Mexico. We think there was an active attitude toward the sale of bleached flake agar-agar which took the form of seeking out customers and making definite offers to them.
Upon the entire record before us we, therefore, find as facts:
. 1. That the merchandise consists of bleached flake agar-agar, manufactured by Compañía Mexicana de Agar, S. de R. L., of Ensenada, Mexico, and was exported from Mexico July 20, 1944.
2. That at the time of exportation all sales of such merchandise for export to the United States were restricted to the plaintiff.
3. That at the time of exportation no similar merchandise was sold or freely offered for sale, to all purchasers in Mexico, either for domestic consumption or for export to the United States.
4. That the price, at the time of exportation of the instant merchandise, at which such merchandise was freely offered for sale to all purchasers in Ensenada, the principal market therefor in the country of exportation, for domestic consumption, in the usual wholesale quantities and in the ordinary course of trade, was 26.14 Mexican pesos per kilo, net packed, f. o. b. Ensenada.
We conclude as matters of law:
1. That no export value, as defined in section 402 (d) of the Tariff Act of 1930, existed for merchandise such as or similar to that here involved.
2. That the proper basis of value of the agar-agar in issue is foreign value, as defined in section 402 (c) of said tariff act, as amended by the Customs Administrative Act of 1938.
[558]*5583. That such value was 26.14 Mexican pesos per kilo, net packed, f. o. b. Ensenada, Mexico.
The decision and judgment below are modified accordingly.