Pan-American Lumber Co. v. United States , 30 Cust. Ct. 625 ( 1953 )

OliveR, Chief Judge:

This case comes before us as a review of the decision in Pan-American Lumber Company v. United States, 26 Cust. Ct. 720, Reap. Dec. 8018, wherein the trial judge sustained the appraised values of certain semiporcelain figurines exported from Mexico on November 23, 1944, and April 30, 1945, and entered for consumption at the port of Laredo, Tex.

The specific dates.«of exportation are significant. The earlier one» November 23, 1944, was within the period, fixed by contract (collective exhibit 1), when appellant was the sole representative of the Mexican manufacturer (Productos Cerámicos, S. A.) for the United States and Canada. At the later date, April 30, 1945, such relationship between the said parties had been terminated, and the Mexican manufacturer was freely offering its products for exportation to the United States and Canada.

Consistent with those conditions, the parties agreed to a set of facts showing that there was no export value for the merchandise in question during the period covered by the said contract but there was a foreign value during that period; that subsequent thereto, there were both foreign and export values; that the export value was no higher than the foreign value; and that foreign value, as defined in section 402 (c) of the Tariff Act of 1930, as modified by the Customs Administrative Act of 1938, is the proper basis for appraisement of the present merchandise.

Under additional stipulated facts, it is established- that prices for this merchandise were the same, regardless of the quantity purchased, and that the place of manufacture, Monterrey, Mexico, was one of the principal markets in the country of exportation.

Appellant entered its merchandise on the basis of the list prices set forth in price list No. 5, dated December 1, 1944, less a discount of 20 per centum, plus packing. Appraisement was made on the basis of the list prices, net, plus cost of containers. Thus, the sole issue herein is whether the freely offered prices, as contemplated by section 402 (c), as modified, supra, are the list prices, net, as appraised, or the list prices, less a discount of 20 per centum, as entered.

The record consists of oral testimony and documentary evidence offered by appellant, and a Treasury representative’s report (exhibit 10) introduced by appellee. The decision of the trial judge contains a clear, concise, and correct review of the evidence. It is deemed unnecessary to repeat such a detailed analysis herein. We shall, therefore, refer to only such portions of the evidence as are necessary to support our conclusions.

The record amply supports the finding by the trial judge that the Mexican manufacturer limited its sales and offers for sale of merchandise, such as that under consideration, to distributors or wholesalers. Accordingly, the trial court held — and we are in complete accord with the conclusion — that the manufacturer’s prices, not being freely offered to all purchasers, are not representative of statutory foreign value.

It follows' therefrom that the conditions surrounding the transactions of the wholesalers or distributors become the primary consideration in determination of the present issue. In this connection, there is record evidence, introduced by both parties, showing that the wholesalers or distributors sold or freely offered for sale articles, such as those in question, “to all purchasers, anywhere in Mexico, at whatever price they pleased”- (exhibit 10). We refer to specific parts of the record establishing these facts.

Emilio Gracia, the Mexican manufacturer’s assistant manager who supervised everything concerning sales of the merchandise and directed the preparation of price lists issued by his company, testified as follows:

X Q. Now, were these distributors or dealers or wholesalers, about how many were there that you sold to in Mexico? — A. I don’t remember the number. It was 4 or 5 years ago, but about 20, I guess — 20 or 30. I don’t remember the number.

X Q. Would you say they were somewhere around 26 — approximately 26?— A. Approximately, yes, but I am not sure.

X Q. And according to your oral agreement or verbal agreement with them they could sell in Mexico to anyone, is that right? — A. Yes, yes.

* * * * * * *

X Q. Mr. Gracia, did I understand you to say that you had sort of a little arrangement with these distributors so that they would sell in Mexico, for consumption in Mexico at the list prices? — A. We recommended that, but we didn’t force them; they were free.

X Q. They were free to sell at whatever prices they so desired? — A. Yes, but we only recommended to sell at list prices.

X Q. And you are not familiar with the way, that is, with any of their books as to the method of the way they sold the merchandise or the prices at which they sold? — A. No, no.

Corroborative of appellant’s testimony, as hereinabove quoted, is information under the heading “FobeigN Value,” in the Treasury representative’s report, reading as follows:

Mr. Gracia said that such merchandise was not freely offered to all purchasers for home consumption. In the Republic of Mexico, Productos Cerámicos S. A. had selected distributors in each key city, and it had offered and sold only to those selected agencies, in the usual wholesale quantities, and in the ordinary course of trade.

At first, Productos Cerámicos, S. A. had three main distributors who had been given exclusive sales rights in specified districts. Mr. Gracia said, however, that his firm had soon realized that said distributors could not be controlled as to sales within their respective restricted territories, and it forthwith had proceeded to remove all territorial restrictions within the Republic, so that all distributors had been free to offer and sell to all purchasers, anywhere in Mexico, at whatever price they pleased.

The Treasury representative’s report further shows, based on information obtained directly from distributors, that “such merchandise had been freely offered by all distributors to all purchasers for home consumption without restriction as to resale or use,” that “all distributors had used as base wholesale prices the current list prices of Productos Cerámicos, S. A.),” that various discounts were granted, ranging from 15 per centum down to net, and that “there was no fixed policy in regard to discounts, the final agreement being arrived at by bargaining in each case” (exhibit 10, page 8).

The case of United States v. H. W. Robinson & Co., 19 C. C. P. A. (Customs) 274, T. D. 45436, presented a situation analogous to that existing herein. There, as here, the manufacturer sold the merchandise to wholesalers only, and the wholesalers freely offered the products to all purchasers. Because of the restriction exercised by the manufacturer, the court properly held that the manufacturer’s price did not represent the dutiable value. The wholesalers’ price, being freely offered to all purchasers, was accepted as the statutory foreign value. The same reasoning has application to and is controlling of the present issue. Accordingly, the wholesalers’ or distributors’ prices meet the requirements of foreign value for the present merchandise.

The case of United States v. Mexican Products Co., 28 C. C. P. A. (Customs) 80, C. A. D. 129, is also in point. There, the merchandise in question consisted of Mexican glassware. The record established that the articles were sold both for home consumption and for export to the United States at the manufacturer’s list prices net, or at net, less varying rates of discount which depended either on the status of the purchaser or his bargaining ability. Under such conditions, the court found the manufacturer’s list prices to be the proper values. The court’s conclusion was stated as follows:

As there is no evidence of record that merchandise like that here involved was sold or freely offered for sale to all purchasers in the usual wholesale quantities and in the ordinary course of trade in the principal market of Mexico, either for consumption in Mexico or for export to the United States, at prices less than the manufacturer’s list prices, it should have been held that the proper dutiable values of the involved merchandise are the manufacturer’s list prices, plus packing * * *. [Italics quoted.]

The record herein establishes facts the same as those which prevailed in the Mexican Products Co. case, supra. Hence, the reasoning employed and the conclusions reached in that case have equal application in the present case.

For the reasons hereinabove set forth, we find as a matter of fact:

1. That the merchandise herein consists of semiporcelain figurines escorted from Mexico on November 23, 1944, and April 30, 1945.

2. Tbat tbe place of manufacture, Monterrey, Mexico, was one of the principal markets for the merchandise.

3. That the prices were the same regardless of the quantity purchased.

4. That on November 23, 1944, the date of exportation of the merchandise involved in reappraisement No. 176358-A, the manufacturer sold for export to the United States, solely through the appellant, its exclusive agent.

5. That on April 30, 1945, the date of exportation of the merchandise involved in reappraisement No. 176359-A, the manufacturer freely offered its merchandise for export to the United States at list prices, less a discount of 25 per centum.

6. That during the period covered by both appeals herein, the manufacturer offered and sold its merchandise for home consumption to wholesalers, dealers, distributors, and a few retailers only.

7. That during the period covered by both appeals herein, wholesalers and distributors freely offered the merchandise for sale for home consumption to all purchasers at the manufacturer’s list prices with varying discounts, ranging from 15 per centum down to net, depending upon the bargaining ability of the purchaser.

Accordingly, we conclude as matter of law:

1. That there was no export value on November 23, 1944, the date of exportation of the merchandise involved in reappraisement No. 176358-A.

2. That an export valué existed on April 30, 1945, the date of exportation of the merchandise involved’ in reappraisement No. 176359-A.

3. That a foreign value existed during the period covered by both appeals herein.

4. That the foreign value is higher than the export value which existed on April 30, 1945.

5. That the foreign value, as that value is defined in section 402 (c) of the Tariff Act of 1930, as modified, supra, is the proper basis for determining the value of the merchandise herein.

6. That such values are the appraised values.

The judgment of the trial court is affirmed.