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1. That as to the merchandise marked "V" and initialed VWJ by V. W. Johnson on the invoices accompanying the entries covered by the appeals for reappraisement enumerated in the attached Schedule of Cases, which is incorporated herein, the merchandise and the issues involved are similar in all material respects to those in United China & Glass Co. v. United States, 50 Cust. Ct. 378, Reap. Dec. 10438, Treasury Decisions Advance Sheets, Vol. 98, No. 7, page 39 and United China & Glass Co. v. United States, 50 Cust. Ct. 474, Reap. Dec. 10515, Treasury Decisions Advance Sheets, Vol. 98, No. 21, page 40, and that the record in said cases may be incorporated with the record herein.

2. That as so limited, the market values or the prices at which such or similar merchandise was freely sold or offered for sale for exportation to the United States, on the dates of exportation thereof to the United States, to all purchasers in the principal markets of the country of exportation in the usual wholesale quantities and in the ordinary course of trade, such prices 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 shipment to the United States, were the ex-factory invoiced unit values, net packed.

3. That all of the merchandise the subject of this stipulation was entered or withdrawn from warehouse for consumption subsequent to February 27, 1958. 4. That as to any of the merchandise covered by this stipulation which is included in the Final List of articles designated by the Secretary of the Treasury in T.D. 54521, 93 Treas. Dec. 14, issued January 20, 1958, pursuant to Sec. 6(a) of the Customs Simplification Act of 1956, Public Law 927, 84th Congress, there were no higher foreign values for such or similar merchandise on the dates of exportation involved herein.

5. That the appeals for reappraisement enumerated in the attached Schedule of Cases may be deemed submitted for decision on the foregoing stipulation, which is limited to the merchandise and the issues described hereinabove and abandoned in all other respects.

On the agreed facts, I find that the proper basis for appraisement of the merchandise, represented by the invoice items marked "V" and initialed "VWJ," is statutory export value and hold that such value for said merchandise is the ex-factory invoiced unit values, net, packed.

As to all other merchandise included on the invoices covered by the entries involved herein, the appeals for reappraisement are dismissed. Judgment will be rendered accordingly.

REHEARING MOTIONS GRANTED

JUNE 15, 1964

Reap. Dec. 10778.-Glazer Steel Corporation v. United States, reappraisement R63/10606. Reappraisement dismissed April 21, 1964. Entered at New Orleans, La. (Not published.) Motion by plaintiff.

JUNE 17, 1964

Reap. Dec. 10779.-Metal Purchasing Co. et al. v. United States, reappraisement R60/8562, etc. Reappraisements dismissed April 28, 1964. Entered at New York, N.Y. (Not published.) (Initial No. R60/20864.) Motion by plaintiffs.

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Stein & Shostak (Marjorie M. Shostak and S. Richard Shostak of counsel) for the appellant.

John W. Douglas, Assistant Attorney General (Morris Braverman and Bernard J. Babb, trial attorneys), for the appellee.

Before OLIVER and WILSON, Judges

WILSON, Judge: This is an application for review of a decision and judgment of a single judge in a reappraisement proceeding involving the value of certain bubble gum having the brand name "Chiclines" (50 Cust. Ct. 379, Reap. Dec. 10439), which was purchased from Chiclera Industrial Mexicana, S.A., of Mexico City.

The merchandise was entered at 6.50 Mexican pesos per 100 tablets, plus stamp tax. It was stipulated by counsel that the merchandise had been appraised at 8 pesos per 100 pieces, plus 1.65 per centum Mexican stamp tax, on the basis of export value of similar merchandise, to wit, Ace brand bubble chewing gum, manufactured by a company, Chicles Hercip, in Monterrey, Nuevo Leon, Mexico.

The decision of the trial judge was rendered on a rehearing, wherein the court held that export value was the proper basis of appraisement and that such value was represented by the appraised value. In the initial decision, the trial judge held to the same effect (Joseph Tanous v. United States, 45 Cust. Ct. 522, Reap. Dec. 9817).

The trial court found that there existed a foreign value for such merchandise and that such value was 6.50 pesos per 100 tablets plus

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tax, which was equal to the entered value of the merchandise. The appellant herein contends that such foreign value was the correct value for the importation at bar.

Two hearings were had by the trial court. In the first case (Reap. Dec. 9817), the court found that the plaintiff's evidence was insufficient to overcome the presumption of correctness attaching to the appraiser's finding that the export value of similar merchandise, i.e., the Ace gum, was correct. A rehearing was granted and, at the second trial, an affidavit made by one Cipriano Garza Elizondo, manufacturer of bubble chewing gum under the firm name of Chicles Hercip, was received in evidence (plaintiff's collective exhibit 4). This additional proof, in our opinion, established that there was no export value for the "Ace" gum, since it was not generally sold or offered for sale for exportation to the United States, but was sold and offered for sale to one customer only. It was not, therefore, freely offered for sale in the usual wholesale quantities to all persons desiring to buy for exportation to the United States. When competent evidence to that effect was introduced by the plaintiff at the trial, the Government could no longer rely upon the presumption of correctness of its appraisement. If it relied upon such appraisal after the introduction of the evidence referred to by the plaintiff, the defendant should have gone forward with proof. The presumption of correctness attaching to the Government's appraisal stood only so long as there was no competent evidence introduced to refute or overcome the presumption. Once such evidence was introduced, the Government lost the protection of the presumption and faced the necessity of offering evidence in support of its appraisal, if it continued to rely upon it.

The trial court, in the second case (Reap. Dec. 10439), made the following statement:

While it would appear from this affidavit that the "Ace" brand of bubble chewing gum could not properly be used as a basis of appraisement, since it was not freely offered to all purchasers for exportation to the United States, even if the appraiser's action is erroneous, it is incumbent upon plaintiff to establish that there was an export value for such merchandise and what that export value was. ** [Italics by the court.]

Citing Kobe Import Co. v. United States, 42 CCPA 194, C.A.D. 593, the court, in the Tanous case, supra (Reap. Dec. 10439), further stated that:

The ultimate fact to be established here is that, at the time of exportation of the within merchandise, such merchandise was freely offered for sale to all purchasers in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States at 6.50 pesos per 100 tablets, plus

tax.

The Kobe case, supra, does not sustain, in our opinion, the position taken by the single judge. That case really is not applicable to the situation now before us. In the Kobe case, both parties relied upon export value as the correct basis of appraisement. They contended, however, for different export values. No question concerning foreign value was involved. In the case at bar, the plaintiff established and the trial court held that a foreign value for such merchandise in the same amount as the entered value existed. The trial court (Reap. Dec. 10439) also found that the evidence was not sufficient to establish that such merchandise was freely offered for sale for export nor to overcome the presumption of correctness attaching to the appraiser's finding of an export value for similar merchandise higher than the foreign value of such merchandise. However, the plaintiff, at the trial below, offered, in our opinion, competent evidence that no export value existed for "Ace" gum at the time of exportation of the merchandise in question. Furthermore, the plaintiff's evidence shows that, if an export value existed for the imported gum, it was no higher than the foreign value established.

We make reference now to the statement of the single judge (Reap. Dec. 10439) that: "The ultimate fact to be established here is that, at the time of exportation of the within merchandise, such merchandise was freely offered for sale to all purchasers in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States at 6.50 pesos per 100 tablets, plus tax." This, in our opinion, is not the burden imposed upon the appellant under the law. When the presumption of correctness attaching to the official appraisal was overcome, as we find in this case, the merchandise should have been appraised on the basis of foreign value, as contended by the appellant. Whether the written contract, referred to in the opinions of the trial court, ever became effective or not, makes no difference, since plaintiff's evidence showed that, if an export value for such merchandise existed, it was not higher than the foreign value of the imported merchandise. Since, as established by the record, there was no export value for similar merchandise-relied upon by the Government as the basis of appraisal-then the export value for "such" merchandise, if such export value existed, should have been used only if it was higher than the foreign value claimed and established by the plaintiff below. The evidence in the case at bar indicates that, if an export value for "such" merchandise existed, it was the same as the foreign value shown to be equal to the entered value of the merchandise.

The Government, in the case at bar (brief, page 14), contends that "it is incumbent upon the appellant to show either that there is an export value for such merchandise which is equal to or higher than the foreign value of such merchandise, or in the absence of such proof,

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