American Factors, Ltd. v. United States , 16 Cust. Ct. 307 ( 1945 )

Eewall, Judge:

These are appeals by the importer of certain canned clams from a finding of value by the appraiser. They have been consolidated and submitted upon the following stipulation:

It is hereby stipulated and agreed by and between counsel for plaintiffs and the Assistant Attorney General, attorney for the United States, subject to the approval of the court, as to merchandise covered by the reappraisement appeals listed in annexed schedule:

(1) That this stipulation is limited to so much of said merchandise as is described in the invoices as clams in 5-ounce cans or tins and marked “A” and initialed BAB by Examiner Bion A. Bridges, and clams in 8-ounce cans or tins •and marked “B” and initialed BAB by examiner Bion A. Bridges; said articles being appraised on the basis of the American selling price in accordance with the Presidential proclamation published in T. D. 47031.

(2) That such merchandise is the same in all material respects as the imported •clams involved in United States v. Mutual Supply Co. et al. and Mutual Supply Co. et al. v. United States, Reap. Dec. 5950, and that the issues herein are the same in all material respects as the issues involved in said decision.

(3) That upon the dates of exportation to the United States of the merchandise covered by these appeals, like or similar merchandise manufactured or produced in the United States was being freely offered for sale and sold to all purchasers in the principal market of the United States in the ordinary course of trade and in the usual wholesale quantities, including all containers and coverings and all costs, charges, and expenses incident to placing the merchandise in condition packed ready for delivery, at the following prices per dozen cans or tins, less a cash discount of 1J4 per centum:

6-ounce size

June 1, 1935 to November 30, 1936_$0. 90

8-ounce size

June 1, 1935 to November 30, 1935_$1. 50

(4) That the record in said Reap. Dec. 5950 may be incorporated herein, and that upon this stipulation these appeals may be deemed submitted, they being abandoned as to all merchandise not marked “A” or “B” on the invoices as above indicated.

Accepting this as an agreement of fact I find as follows:

1. That the merchandise described in the invoices as clams in 5-ounce cans or tins, marked “A” and initialed BAB by Examiner Bion A. Bridges, and clams in 8-ounce tins or cans marked “B” and initialed in the same manner by the same examiner, are like or similar to soft-shelled clams packed in Maine, as represented by the B & M brand and sold by Burnham & Morrill of Portland, Maine.

2. That by reason of the proclamation of the President, T. D. 47031, the imported merchandise, canned clams, is subject to appraisement upon the basis of the American selling price.

3. That the principal market for canned clams like or similar to the clams herein imported is Portland, Maine.

4. That the American selling price of the canned clams described in paragraph 1 above in 5-ounce cans or tins was $0.90 per dozen less 1% per centum cash discount; and of the 8-ounce cans or tins described in said paragraph 1 was $1.50 per dozen less 1}{ per centum cash discount, at the time of exportation.

Judgment will be rendered in accordance with this decision.