Lenroot, Judge,
delivered the opinion of the court:
This is an appeal from a judgment of the United States Customs Court (Third Division) in a reappraisoment proceeding affirming a judgment of the single judge holding that the proper basis for appraisement of the involved merchandise is its export value, and that such export value is its appraised value. The merchandise consisted of [201]*201woven flax paddings exported from Belgium in 1939, and was appraised at its export value at 6 Belgian francs per meter, packed, less 3 per centum. It was entered by appellant at the value of 4.15 Belgian francs per meter, packed, less 3 per centum.
The case was submitted to the trial court upon a written stipulation between the parties, which reads as follows:
It is Stipulated by and between counsel, subject to the approval of the Court’ as follows:
1. That the merchandise involved in the above-entitled suit, or merchandise similar thereto, was not freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, at the time of exportation of the instant merchandise or subsequent thereto, but was manufactured solely for exportation to the United States, by the manufacturer herein or by other manufacturers of such or similar merchandise.
2. That the merchandise forming the subject matter of this suit or merchandise similar thereto was freely offered for sale to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States, at the time of exportation of the instant merchandise and subsequent thereto, for future delivery by the exporter herein and by other manufacturers of such or similar merchandise.
3. That the merchandise involved in this suit was purchased by plaintiff on an order dated June 21, 1939, in accordance with which deliveries were to be made during September, October, and November, 1939, at the price of 4.15 Belgian Francs per meter, packed, less 3%.
4. That the merchandise involved in this suit was exported from Belgium on October 25, 1939.
5. Thát on or about September 20, 1939, the manufacturer of said merchandise had freely offered for sale to all purchasers for exportation to the United States such or similar merchandise for future delivery at 6 Belgian Francs per meter packed, less 3%.
6. That on September 20, 1939, plaintiff herein placed an order with the said manufacturer for such or similar merchandise at the price of 6 Belgian Francs per meter, packed, less 3%, for delivery during January, February, and March, 1940.
7. That in the ordinary course of trade such or similar merchandise was not carried in stock by the manufacturer in Belgium of the instant merchandise for spot delivery, and no deliveries had been made of such or similar merchandise by the manufacturer of the instant merchandise at the price of 6 Belgian Francs at the time of exportation of the merchandise involved herein from Belgium, namely, October 25, 1939.
8. That in the ordinary course of trade, such or similar merchandise was not carried in stock by other manufacturers in Belgium of merchandise similar to that imported herein for spot delivery, and no deliveries had been made by other manufacturers of such or similar merchandise at the price of 6 Belgian Francs at the time of exportation of the merchandise involved herein from Belgium, namely, October 25, 1939.
9. That if the invoice price under the order of June 21, 1939, is held to be the export value, for duty purposes, under section 402 (d) of the Tariff Act of 1930, of the merchandise involved herein, the entered value correctly represents such export value.
[202]*20210. That if the appraised value, equivalent to the price of the order placed September 20, 1939, is held to be the export value for duty purposes under section 402 (d) of the Tariff Act of 1930 of merchandise involved herein, then the appraised value correctly represents such export value.
Plaintiff waives the right to first docket call and the case is hereby submitted on this stipulation; plaintiff having 30 days from date of filing hereof for brief, and defendant 30 days after service of plaintiff’s brief for filing its brief.
No other evidence was introduced upon the trial of the case.
As will be observed, the stipulation recites in substance that the merchandise under consideration, and merchandise similar thereto, was manufactured solely for exportation to the United States; that in the ordinary course of trade such or similar merchandise was not carried in stock by the manufacturers in Belgium for spot delivery, but was freely offered for sale to all purchasers for exportation to the United States for future delivery; that the merchandise here involved was purchased by appellant on an order dated June 21, 1939, at 4.15 Belgian francs per meter, packed, less 3 per centum, and deliveries of the merchandise were, to be made during September, October, and November, 1939; that the merchandise was exported from Belgium on October 25, 1939; that on or about September 20, 1939, the manufacturer of the involved merchandise freely offered for sale to all purchasers, for exportation to the United States, such or similar merchandise for future delivery at the price of 6 Belgian francs per meter, packed, less 3 per centum, and that on September 20, 1939, appellant placed an order with the manufacturer for such or similar merchandise at the price of 6 Belgian francs per meter, packed, less 3 per centum, for delivery during January, February, and March, 1940.
The pertinent provisions of section 402 of the Tariff Act of 1930, under which the merchandise was appraised, and under which both parties agree that it should be appraised, read as follows:
SEC. 402. VALUE
# » * * * * *
(d) Expobt Value. — The export value of imported merchandise shall be the market value or the price, at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, 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 shipment to the United States.
The two tribunals below, in approving the appraised value, held that the price of 4.15 Belgian francs per meter, packed, less 3 per centum, which was the price at which the merchandise was contracted to be sold in June, 1939, the goods being exported on October 25 of the same year, did not constitute export value for them, but that the price [203]*203of 6 Belgian francs per meter, packed, less 3 per centum, at which similar goods were being freely offered for sale, and which appellant agreed to buy on its second order, but which goods were for future delivery in 1940, was the proper export .and dutiable value.
Appellant makes two main contentions:
First. That the value found by the tribunals below, to wit, 6 Belgian francs per meter, packed, less 3 per centum, based on the market price at which the goods were being freely offered for future delivery at the time of the exportation of appellant’s first order, was not the proper export value for the reason that at the time said offers were being made there were no goods on hand or which could be produced for reasonably prompt delivery, relying largely on the decision of this court in Kuttroff, Pickhardt & Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 176, T. D. 41698.
Second. That the entered value must be sustained by virtue of the applicability of the doctrine of legislative ratification of long-continued administrative practice.
We will first consider appellant’s second contention.
The tariff act of 1913 provided in paragraph B, for the assessment of duty on imported dutiable merchandise at its actual market value or wholesale price, but defined such value as:
* * * the price at which such merchandise is freely offered for sale to all purchasers in said markets,, in the usual wholesale quantities, and the price which the seller, shipper, or owner would have received, and was willing to receive, for such merchandise when sold in the ordinary course of trade in the usual wholesale quantities * * *.
On June 3, 1916, the Treasury Department, charged with the administration of the customs laws, issued T. D. 36448, which purported to interpret the above-quoted valuation provision of the tariff act of 1913. Said T. D. 36448 read as follows:
Treasury Department, June S, 1916.
To appraisers of merchandise and others concerned:
It appears from a discussion at the appraisers’ conference that there is a lack of uniformity in appraising merchandise of which notice of a change in value has been received. Some appraising officers apply the new price on all shipments made after the change of price, and others wait until they have evidence of deliveries at the new price either in the country of exportation or the United States.
It further appears that there are two classes of merchandise, viz., one which may be termed stock goods which are ready for delivery at all times, and the other goods which are manufactured on orders for future delivery.
As to the first class, the department is of the opinion that the new price should be put into effect on all purchases made after the date on which the new price is to take effect, but that as to purchases made before that date and not shipped until after the new price becomes effective the new price should not be applied unless there is evidence that sales have been made at the new price.
With respect to the second class, the new price should be applied to old contracts only when there is evidence that deliveries have begun at the new price. [204]*204When the appraising officer has no information as to whether sales have been made or delivery begun at a changed price, he should withhold appraisement until he can secure information on the subject.
Andrew J. Peters, Assistant Secretary.
It is with the second, class of goods referred to in said Treasury decision, that is, goods manufactured on orders for future delivery, that we are here particularly concerned.
The practice purporting to be authorized in said Treasury decision apparently continued in effect until February 2, 1938, when the Commissioner of Customs in T. D. 49381, 73 Treas. Dec. 165, directed a change in said practice, which change authorized appraisement under said section 402 of the Tariff Act of 1930 at the price at which such or similar merchandise was freely offered for sale to all purchasers at the time of exportation, regardless of whether or not there had been any sales or deliveries at the new price.
Appellant argues that the interpretation made by the Treasury Department in 1916 continued in effect for more than 20 years, during which time Congress enacted the Emergency Tariff Act, 1921, and the Tariff Acts of 1922 and 1930, with no change in the language “freely offered for sale to all purchasers” as interpreted in said T. D. 36448; that by the enactment of said tariff acts subsequent to the tariff act of 1913, Congress adopted the interpretation set forth in said Treasury decision, and that therefore the words “freely offered for sale to all purchasers,” as found in section 402 (d) of the Tariff Act of 1930, should be interpreted in accordance with said Treasury decision.
Appellant further contends, in effect, that the appellate division erred in holding that said T. D. 49381, issued in 1938, revoked the interpretation given in said T. D. 36448 to the words “freely offered for sale to all purchasers,” for the reason that such interpretation had, by implication, been adopted by Congress in the Tariff Act of 1930, and that such interpretation was not subject to revocation by the Treasury Department.
For the purposes of this case we may assume that if said T. D. 36448 was a valid regulation in effect at the time of the importation of the involved merchandise, and assuming that the price of 4.15 Belgian francs per meter, less 3 per centum, was the freely offered price for such or similar merchandise on June 21, 1939, for future delivery, the contention of appellant should have been sustained by the Customs Court.
However, we are of the opinion that said T. D. 36448 never had any validity and was a nullity from the date of its promulgation. Our reasons for so holding are hereinafter stated.
If T. D. 36448 was a nullity there could have been no proper administrative practice under it, and Congress could not, by use of the same. [205]*205language — “freely offered for sale,” etc. — in subsequent tariff enactments, be presumed to ratify the interpretation given by said T. D. 36448 to the phrase “freely offered for sale to all purchasers.”
In the case of United States v. Gruen Watch Co., 21 C. C. P. A. (Customs) 225, T. D. 46761, involving the question of the validity of a customs regulation, the court said:
We are not impressed with the argument of the Government that the issue in this ease is controlled by legislative practice. No authority has been cited, and we have found none, to the effect that legislative silence may validate an invalid regulation. If the regulation is invalid, the silence or absence of affirmative action on the part of Congress, in our judgment, cannot be regarded as a sufficient circumstance to warrant a holding that it is in fact valid. * * *
That long-continued administrative practice by the customs officials may not be properly invoked by a party if such practice is clearly contrary to law, is well established. Pacific Creosoting Co. v. United States, 1 Ct. Cust. Appls. 312, T. D. 31407; Lloyd Co. v. United States, 9 Ct. Cust. Appls. 280, T. D. 38217; United States v. Field & Co., 14 Ct. Cust. Appls. 376, T. D. 42031; United States v. Jules Raunheim (Inc.) et al., 17 C. C. P. A. (Customs) 425, T. D. 43867.
In harmony with the foregoing is the rule that in the construction of a statute administrative practice may be resorted to only where the meaning of the statute is doubtful. United States v. Jules Raunheim (Inc.) et al., supra; Pittsburgh Plate Glass Co. v. United States, 2 Ct. Cust. Appls. 389, T. D. 32162; James F. White & Co. v. United States, 23 C. C. P. A. (Customs) 224, T. D. 48061.
In our opinion the expression in section 402 (d) — “freely offered for sale to all purchasers * * * for exportation to the United States” • — is not ambiguous, and we have in effect so held.
In the case of Sandoz Chemical Works v. United States, 13 Ct. Cust. Appls. 466, T. D. 41365, this court, speaking of identical language— “freely offered for sale to all purchasers” — contained in section 402 (f) of the Tariff Act of 1922, stated:
* * * It will be noted that the statute (sec. 402 [f]), does not require a sale of the product; it is sufficient if it be freely offered for sale.
In section 302 of the Emergency Tariff Act, 1921, it was provided that “the export value of imported merchandise shall be the price, at the time of exportation of such merchandise to the United States, at which such or similar merchandise is sold or freely offered for sale to all purchasers * * * for exportation to the United States.” [Italics ours.]
In the case of Robinson & Co. et al. v. United States, 13 Ct. Cust. Appls. 644, T. D. 41486, there was involved the appraisement of certain merchandise under said s'ection 302. In its opinion the court stated:
If that section had provided that export value was the price at which merchandise was sold to all purchasers in the principal markets of the country from which [206]*206exported, there might be some ground for saying that the appraisement was not made in accordance with law. Section 302 does not so provide, however, and clearly contemplates not only actual sales, but offers for sale freely made to all purchasers for export to the United States. Under the emergency tariff act mere offers for sale if made to all persons desiring to purchase goods for export to the United States were just as effective in making export value as sales actually made and concluded. * * * [Last italics supplied.]
If Congress intended that only sales passing title should be determinative of export value, it would have defined export value as the price at which merchandise was sold for export to the United States and left out of the “equation” the price at which such merchandise was freely offered for sale to all purchasers. * * *
To the like effect are the cases of Oceanic Trading Co. v. United States, 21 C. C. P. A. (Customs) 146, T. D. 46478, aud United States v. T. E. Ash, etc., 22 C. C. P. A. (Customs) 395, T. D. 47401, respecting similar language in section 402 of the Tariff Act of 1930.
In the case of United States v. Baldwin Universal Co., 18 C. C. P. A. (Customs) 395, T. D. 44641, there was involved paragraph (b) of section 402 of the Tariff Act of 1922, which defined the foreign value of merchandise. The trial court had held that a certain price list could not be considered as evidence of foreign value for the reason that there was no proof of deliveries made at the prices shown thereon.
We stated in our opinion in'said case that we saw no reason why the same construction should not be given to the words “freely offered for sale” under paragraph (b) of section 402 of the Tariff Act of 1922 as we had given the same words in section 402 (f) in the case of Sandoz Chemical Works v. United States, supra, and to the same words in section 302 of the Emergency Tariff Act, 1921, in the case of Robinson & Co. et al. v. United States, supra. A like observation is here applicable as to paragraph (d) of section 402 of the Tariff Act of 1930 here involved. In the case of United States v. Baldwin Universal Co., supra, we said:
* * * It is perfectly true that in any given case the facts may be such as to require evidence of sales under a price list, in order to establish such price list as effective, but we cannot hold, as a matter of law, that in all cases there must be sales at the prices named in a price list, and that it is not effective prior to the date of such sales. This the lower court did, as we construe its decision, and we think this constitutes reversible error. * * *
We now proceed to apply the foregoing principles to the case at bar.
It will be observed from said T. D. 36448 that, as to stock goods, or goods on hand, purchased before the date on which the new price is to take effect, and not shipped until after the new price becomes effective, the new price should not be applied unless there is evidence that sales have been made at the new price; and that, as to goods manufactured for future delivery, the new price should be applied to old contracts only when there is evidence that deliveries have begun at the new price.
[207]*207It is true that in the case of United States v. Baldwin Universal Co., supra, wo 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 bonajides of the offer. In that case the lower court had held that in all cases there must be evidence of sales at prices named in a price list in order to make such price list effective. This we held to be reversible error. Under T. D. 36448, a new price could not in any case be applied to old contracts unless there had been deliveries under the new price; this is exactly what we held in the case last above cited was contrary to law.
Furthermore this court, prior to the enactment of the Tariff Act of 1930, had held, in effect, that the language “freely offered for sale to all purchasers” in paragraph (f) of section 402 of the Tariff Act of 1922 was not ambiguous, and that it did not require a sale of the product offered, but that “it is sufficient if it be freely offered for sale.” Sandoz Chemical Works v. United States, supra.
This holding in the case last cited was clearly contrary to the interpretation given to the words “freely offered for sale to all purchasers” in said T. D. 36448, and if there be any legislative ratification of the interpretation of said words, it must be presumed that Congress adopted the judicial interpretation thereof.
The rule as laid down in said Treasury decision is so clearly contrary to the provisions of section 402 of the Tariff Act of 1930 and so clearly •contrary to our decisions hereinbefore cited, and many others which might be cited, that further comment thereon is unnecessary.
Convinced as we are that said T. D. 36448 was invalid ab initio the question to be decided is whether the free offer for future delivery -of such or similar merchandise on September 20, 1939, for export to the United States, at the price of 6 Belgian francs per meter, packed, less 3 per centum, constituted any substantial evidence of the export value of the involved merchandise. This is the question embraced in appellant’s first contention as hereinbefore set forth.
In our opinion such offer of September 20, 1939, does constitute -very substantial evidence warranting the trial judge and appellate •division in finding the export value of the merchandise at the time of its exportation to the United States to be 6 Belgian francs per meter, packed, less 3 per centum.
There is here no question as to the bonajides of the offer of September 20, 1939, for appellant availed itself of it and made a purchase on said date at the offered price for future delivery in January, February, and March, 1940.
[208]*208In the ease of Kuttroff, Pickhardt & Co. (Inc.) v. United States, supra, this court, in considering paragraph (f) of section 402 of the Tariff Act of 1922, said:
To freely offer an article for sale within the contemplation of subdivision (f) it should, at least, appear that some reasonable quantity of the offered article was ready or could be produced for reasonably prompt delivery. * * * [Italics oúrs.]
■Section 501 of the Tariff Act of 1930 provides:
* * * The value found by the appraiser shall be presumed to be the value of the merchandise and the burden shall rest upon the party who challenges its correctness to prove otherwise.
It is presumed that the appraiser found every fact to exist that was necessary to sustain his appraisement. See E. I. du Pont de Nemours & Co. v. United States, 27 C. C. P. A. (Customs) 146, C. A. D. 75.
’ Therefore it must be presumed that the appraiser found that there could be prompt delivery of the merchandise embraced in the September 20, 1939, offer, and the burden was upon appellant to prove the contrary.
We find nothing in the stipulation herein to the effect that such or similar merchandise could not have'been manufactured and promptly delivered at the September 20, 1939, price.
It does not appear that offers for future delivery were not accepted prior to October 25, 1939, at the September 20 price of 6 Belgian francs per meter, packed, less 3 per centum, the merchandise to be delivered at a time which would constitute prompt delivery after the offer was accepted. If there were such, under the principle of our decision in the case of Kuttroff, Pickhardt & Co. (Inc.) v. United States, supra, the offer of September 20, 1939, was substantial evidence of the export value of the involved merchandise at the date of exportation thereof.
The stipulation before us merely states that no deliveries had been made at the September 20 price at the time of the exportation of the involved merchandise, viz, October 25, 1939. Deliveries, however, might have been normally possible on or before October 25, or within such time thereafter as to constitute a prompt delivery. bZHÜ
'The stipulation was evidently drawn with the intent to make applicable the provisions of said T. D. 36448 if said Treasury decision was effective at the date of exportation of the involved merchandise.
Inasmuch as we hold that said T. D. 36448 was never effective, the rulé obtains that free offers of merchandise for future delivery establish a market price if the delivery can be prompt, and the ability of sellers to' mike' prompt delivery of such merchandise under the September 20 offer is not negatived by the stipulated fact that there had been no deliveries of merchandise so offered on or prior to October 25, 1939; for, as hereinbefore stated, there might have been deliveries [209]*209after October 25, or ability to make deliveries on or before or after October 25, in fulfillment of orders placed prior thereto, which would have been prompt deliveries under the September 20, 1939, offer.
Therefore, we are of the opinion that upon the stipulation before us the September 20,1939, offer of 6 Belgian francs per meter, packed, less 3 per centum, for merchandise such as is here involved, is substantial evidence of the export value of the involved merchandise. Furthermore, there is nothing in said stipulation overcoming the presumption of the correctness of the appraisement by the local appraiser.
We have not discussed the holding of the lower court that T. D. 49381 revoked T. D. 36448, which holding is challenged by appellant, for the reason that, since we hold that T. D. 36448 was invalid from the beginning, a discussion of this question is unnecessary.
For the reasons stated herein, the judgment appealed from is affirmed.