United States v. Baar & Beards, Inc. , 40 Cust. Ct. 874 ( 1958 )

Richardson, Judge:

These are two appeals from a judgment of a single judge sitting in reappraisement in the second division sustaining an appeal from the appraiser’s decision determining the dutiable export value of the merchandise here involved. Boar & Beards, Inc. v. United States, 37 Cust. Ct. 552, Reap. Dec. 8696.

The merchandise consists of certain habutae solid-colored scarves, exported from Japan on April 16 and 25, 1953, and entered at New York on May 25 and June 1, 1953, respectively.

These appeals raise the question of whether the merchandise involved was “freely offered for sale to all purchasers in the principal markets of the country from which exported ... in the ordinary course of trade, for exportation to the United States,” within the meaning of 19 U. S. C., section 1402 (d) (section 402 (d) of the Tariff Act of 1930), at the prices contended for by the importer ($2.85 per dozen, f. o. b. Yokohama, in reappraisement No. 234862-A and $2.87 per dozen, f. o. b. Yokohama, in reappraisement No. 234863-A) or at the prices contended for by the Government ($2.99 per dozen, f. o. b. Yokohama, in both reappraisement cases).

The respective parties, through their attorneys, have agreed, in effect, that merchandise such as or similar to that here involved was not sold or offered for sale for home consumption in Japan, within the provisions of section 402 of the Tariff Act of 1930, and that the proper basis for finding a value for the merchandise is export value. No question is raised in this case regarding the principal market, usual wholesale quantity, or inland freight charges.

At the trial of these two appeals, counsel for the plaintiff offered and there was received in evidence as exhibit 1 an affidavit of Tatsuo Nishiwald, manager of Z. Horikoshi & Co., Ltd., and the plaintiff rested. The defendant offered in evidence seven reports, which were admitted and marked exhibits A through G. Exhibit A is a report addressed to the Commissioner of Customs, Washington, D. C., and is signed by Lester D. Johnson, appraiser of merchandise. Exhibit C is a report addressed to Department of State and is signed by Laurence W. Taylor, American consul general. The other reports bear the heading: Foreign Seevice oe the Uotted States oe Ameeica, OperatioNS Memorandum, and are addressed to Department of State. These reports do not bear the signature of any one, but the party making these reports has been properly identified as “officers of the Government” by a certificate signed by John Foster Dulles, Secretary of State. These reports come within the class of documents made admissible in evidence by 28 U. S. C., section 2633, which provides that:

In finding the value of merchandise, in reappraisement proceedings before a single fudge of the Customs Court, affidavits and depositions of persons whose attendance cannot reasonably be had, price lists, and catalogues, reports or depositions of consuls, customs agents, collectors, appraisers, assistant appraisers, examiners, and other officers of the Government may be admitted in evidence.

All of the evidence submitted is documentary and consists of the official papers and the exhibits listed above.

In an affidavit in exhibit 1, dated September 30, 1955, Tatsuo Nishiwald, the manager of Z. Horikoshi & Co., Ltd., Yokohama, stated that he was thoroughly familiar with the prices at which silk scarves had been freely offered for sale and sold for exportation to the United States in Tokyo, Yokohama, and Kobe, which, according to the affidavit, are the principal markets of Japan for the sale of silk scarves. He stated further that:

3. On or about July, 1951 the Ministry of International Trade and Industry, commonly known as “MITI”, an agency of the Japanese government having jurisdiction over the issuance of export licenses for the exportation of silk scarves from Japan, began a survey of the Japanese scarf industry for the announced purpose of discovering ways and means for the economic stabilization of the Japanese silk scarf industry. .The Japanese Scarf Manufacturers Association and MITI officials held a great many meetings and every manufacturer submitted cost of production statements for each of the styles of scarves that it manufactured. On or about September 1951 MITI began to refuse to issue export licenses for shipments of silk scarves that had been sold at a price lower than MITI considered to be the median cost of production of that item in the industry. There was never any publication of the prices that MITI considered to be the lowest prices at which the product should be sold, but the approximate amount of the price (which has become known as the “check price”) can be and was determined by submitting a series of invoices covering the same article in connection with the application for an export license. For instance, if an export license application covering silk scarves of a specific size, quality and print is denied when the selling price was'shown to be $2.75 per dozen or $2.78. per dozen, but is granted when the price was $2.80 per dozen, I know that the “check price” is either $2.79 or $2.80, but the “check ‘price” has no relationship whatsoever to the price at which the merchandise was freely offered for sale and was sold. During the period from September 1951 to date, actual market prices have often been lower than “check prices”. [Italics added.]

4. On or about April 3, 1953 I sold 101 % dozen 4 momme Habutae Solid colored scarves with handrolled hems, 33%" by 35%", Grade A to Baar & Beards, Inc. of New York City at $3.10 per dozen, F. O. B. Yokohama. My company exported these scarves to the United States in a case marked H. E. 2063 laden aboard the S. S. Surabaya Maru which sailed from Japan on April 16, 1953. On April 16, 1963 silk scarves identical with those shipped were freely offered for sale and were sold to all persons in Tokyo, Yokohama and Kobe, the principal markets of Japan for the sale of such merchandise for exportation to the United States at $8.85 per dozen F. O. B. Yokohama, and the price did not vary by reason of the quantity purchased. Said price of $2.85 per dozen included 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. To the best of my knowledge and belief, the “check price” on April 16, 1953 for these scarves was $2.99 per dozen, F. O. B. Yokohama, but all offers of sale and sales of identical merchandise and of merchandise substantially similar in quality and weight of .material, quality of workmanship, dyed in the same or similar colors and produced or manufactured at about the same cost of production on that date (April 16, 1953) were sales or offers for exportation to the United States at $2.85 per dozen, F. O. B. Yokohama. . . . [Italics added.]

Appellant’s exhibit B contains the following statement, regarding a sale of scarves by K. Oyama & Co. of Yokohama:

It can be presumably considered that the check prices exist only to the extent of forcing the exporters to invoice their merchandise at MITI’s check prices in order to obtain an export license for the merchandise. . . . [Italics added.]

Appellant’s exhibit C contains the following statement, with respect to the sale of silk scarves by Mutoh Shoten of Yokohama:

... In order to obtain an export license from MITI the seller conformed to the “check price” level. . . . [Italics added.]

Appellant’s exhibit D contains the following statement:

. . . Check prices exist only to the extent of forcing the exporters to invoice their merchandise at MITI levels in order to obtain export licenses for shipment of the merchandise. [Italics added.]

Appellant’s exhibit F contains this statement:

• . . . The seller conformed to the MITI check price in order to obtain an export license. . . . [Italics added.]

Appellant’s exhibit G contains this statement:

. . . MI TI’s control . . . existed only to the extent of forcing the exporters to invoice their merchandise at MITI check prices in order to obtain export licenses. [Italics added.]

The Japanese Ministry of International Trade and Industry shall hereinafter in this opinion be referred to as MITI.

MITI was aware, however, of the practice of arranging credits during the period in which the sales in question were consummated, and, despite the widespread evasion of its orders, as reflected in the above-mentioned exhibits, took no steps to enforce its unpublished minimum price, even though the Foreign Exchange and Foreign Trade Control Law provided methods for doing so. Article 53 provided that the Minister of International Trade and Industry “may prohibit any person who, in connection with the export or import of goods, has violated the provisions of this Law, ordinances or measures based thereon, from engaging in export or import transactions for a period not exceeding one year.” Article 68 of the said law provided for spot inspections of the books, documents, and other articles of places of business or offices of the foreign exchange banks and money changers and interrogation of the persons concerned. Article 72 provided for penal servitude up to 6 months or a fine not exceeding (50,000) yen for persons who refused, obstructed, or evaded the inspection under article 68, or failed to respond or made false response to the interrogation under article 68.

Counsel for the appellant conceded that, though the above sanctions were available, there was no enforcement of the law during the period under consideration (R. 6, oral argument).

There is a question as to whether a price control law, even when adhered to, purports to represent actual value. It is designed to stabilize a market or channels of distribution. Minimum prices are established to provide a floor below which certain merchandise is not to be sold when there is an over-abundant supply. Maximum prices are established to provide a ceiling above which certain merchandise is not to be sold when there is a short supply. The Japanese Administrative Regulation invited evasion. The only sanction available was on the seller — he could be refused an export license, if his application for a license did not show a sales price at or above the unpublished check price; or his export privileges could be suspended for a period of not to exceed 1 year, if it were ascertained that he had sold below the unpublished check price. There were no sanctions on the purchaser, if he paid below the floor price. Thus, the regulation was, in effect, only a floor on the amount the seller could charge. It did not provide a floor or limitation on what the purchaser could pay. Any price control law which places a floor or ceiling on the amount a seller can charge and provides for sanctions on him without, at the same time, placing a floor or ceiling on the amount the purchaser can pay and providing for sanctions on the purchaser is an open invitation to evasion.

It was conceded by counsel for plaintiff and the Government, and the evidence clearly establishes, that there was no enforcement of the regulation and not a single license was refused or suspended because the contract and actual sales price differed from the price stated in the exporter’s application. In an atmosphere of almost universal evasion and no application of available sanctions, it is difficult to see how it can be said that the unpublished so-called check prices either stabilized the market or determined the value of silk scarves during the period involved. To say that the so-called check on MITI prices, which were not adhered to or enforced in the foreign country, should be used as a standard of export value in this case is tantamount to asking that we impose a penalty against nationals in this country which was not provided for in the foreign regulation.

The United States Customs Court is a court of law concerned with the value of merchandise under the tariff acts as written. It does not have equity powers. Supply and demand and the price at which merchandise actually flows in the traffic of the market place determine its value at a given time. An administrative regulation of a foreign country providing for an unpublished floor price which is not ordinarily adhered to in commercial transactions and is not enforced by the agency establishing it does not determine value. As laudable as it would be and as much as this court would like to see commercial transactions walk arm in arm through the market place with business ethics, it does not always happen. “Our tariff acts must be interpreted as written, and not so as to meet the exigencies of foreign trade or governments.” United States v. Graham & Zenger, Inc., 31 C. C. P. A. (Customs) 131, 135, C. A. D. 262.

In reaching the conclusion we do, we are not consenting to what appellant refers to as an illegal practice, but merely recognizing what the evidence overwhelmingly establishes was the method of doing business which was so pronounced as to be regai’ded as “ordinarily” and “freely” indulged in. Section 402 of the tariff act does not require that the price be in accordance with a foreign administrative regulation which is not adhered to and not enforced. No law required the purchaser to pay any price at, above, or below any particular level. If the bulk of the sales were being made at one price in fact, regardless of the subterfuge indulged in to make believe a price control law was being complied with, we think the prices in fact for such sales would represent the basis for determining value. A foreign Government mandate issued to sellers that a price should be a particular figure cannot void the price at which the merchandise is actually selling for openly on the mai’ket, when the Government mandate is widely “disregarded, overlooked, and run away with by the actual market.” E. J. Reynolds v. United States, 39 Treas. Dec. 146, 147, T. D. 38645. 28 U. S. C., section 2633, provides:

The value found by the appraiser shall be presumed to be the value of the merchandise. The burden shall rest upon the party who challenges its correctness to prove otherwise.

Exhibit 1, the affidavit of the manager of Z. Horikoshi & Co., Ltd., was admitted in evidence under 28 U. S. C., section 2633, which also provides that:

In finding the value of merchandise, in reappraisement proceedings before a single judge of the Customs Court, affidavits and depositions of persons whose attendance cannot reasonably be had . . . may be admitted in evidence. . . .

The affidavit was made by a person experienced in the business of selling the merchandise involved in the principal markets of Japan and, as such, he was in a position to know the market conditions in Japan on April 16, 1953. His affidavit was sufficient to overcome the presumption of the correctness of the appraiser’s findings and established that merchandise identical with that covered by reappraisement No. 234862-A was being freely offered and sold, in what was then the ordinary course of trade, to all purchasers in the principal markets in Japan for exportation to the United States at $2.85 per dozen, f. o. b. Yokohama, on April 16, 1953. The Government introduced no evidence to show that any sale was in fact freely made in what was then the ordinary course of trade at any price other than $2.85 per dozen, f. o. b. Yokohama, on April 16, 1953, and thus did not overcome the sworn statement of the manager of Z. Horikoshi & Co., Ltd. United States v. Sabin, 12 Ct. Cust. Appls. 520, T. D. 40731.

The affidavit of the manager of Z. Horikoshi & Co., Ltd., deals specifically with the merchandise covered in reappraisement No. 234862-A, which was exported from Japan on April 16, 1953. The ruling of the single judge sitting in reappraisement that the affidavit may well be considered as some evidence of value of the merchandise covered by reappraisement No. 234863-A, which was exported from Japan 9 days later, April 25, 1953, was error. The affiant did not expressly or impliedly indicate what the value of the merchandise was between April 16 and 25 or on April 25, 1953, and we cannot assume that a price of $2.85 for silk scarves on April 16, 1953, would be some evidence of a price of $2.87 for such scarves on April 25, 1953. The case of R. Mohr & Sons et al. v. United States, 16 Ct. Cust. Appls. 448, T. D. 43198, cited by the single judge, is distinguishable from this case, in that the affiant in the Mohr case, supra, stated that there was “no appreciable change in the value of the merchandise” during the entire period involved, and, in this case, the affiant, in exhibit 1, does not go beyond the value of the merchandise on April 16, 1953. The affiant did state as a general proposition that “the ‘check price’ has no relationship whatsoever to the price at which the merchandise was freely offered for sale and was sold.” In view of the short period of 9 days between the two sales and the consistent statement persisting through all of appellant’s exhibits that there was widespread evidence of circumvention of MITI’s regulation, it is proper to consider the statement from the affidavit just quoted as some evidence of the ineffectiveness of the check prices from April 16, 1953, through April 25, 1953.

The error of the single judge sitting in reappraisement is not a reversible error, however, since he reached the correct conclusion on the export value, and the conclusion is amply supported by the weight of the evidence, as established in appellant’s exhibit A. Exhibit A contains this statement:

. . . : The merchandise covered by Consular Invoice Number 22466, certified at Tokyo, Japan, April 24, 1953, was ordered by Baar and Beards, Inc., through their Tokyo representative on April 10, 1953, and is covered by K. Kachi & Company’s contract No. 225, which was for 100 dozen 4 momme habutae silk scarves, style number 5100, solid color, hand rolled hems, at a unit price of $2.87 per dozen F. O. B. Yokohama. Payment for this shipment was made by means of Letter of Credit No. 60223 issued by the Bank of Manhattan Company in the sum of $305.98, which represents 101J4 dozen scarves at $2.99 per dozen, totalling $303.48 plus $2.50 consular fee. $2.99 per dozen was the check price for this type of merchandise on the date of exportation concerned and the difference of 12 cents per dozen was paid in yen to the Tokyo office of Baar and Beards, Inc., on December 17, 1953.

There is no evidence by the Government of any other price on the date of exportation, April 25, 1953.

The importer may be relieved of the burden of proof usually required to overcome the presumption of the correctness of the finding of value by the appraiser, when the Government submits documents, as here, which contain evidence in support of the importer’s claim.

... If there be contained therein [the Government’s evidence] competent evidence beneficial to the importer, we think [the] importer is entitled to have the same considered and weighed along with all the evidence in the case. [Golding Bros. Co., Inc. v. United States, 21 C. C. P. A. (Customs) 395, 400, T. D. 46926. See also Florea & Co., Inc. v. United States, 7 Cust. Ct. 581, Reap. Dec. 5489.]

Had the Government not elected to introduce evidence on its own behalf and moved to dismiss the appeal, with respect to reappraisement No. 234863-A, at the conclusion of importer’s presentation of evidence, the situation would have been different.

We are of the opinion that there is some substantial evidence of record to support the appraisement by the single judge. We find as facts: (1) That appellee’s exhibit 1, the affidavit of Tatsuo Nishiwaki, manager of Z. Horikoshi & Co., Ltd., was sufficient to overcome the presumption of the correctness of the finding of value by the appraiser in reappraisement No. 234862-A and establish the export value of the silk scarves in that case of $2.85 per dozen, f. o. b. Yokohama, on April 16, 1953; (2) that appellant’s exhibit A, which contains a report of a statement made by Jerry Kondo, director of K. Kachi & Co., Ltd., was sufficient to overcome tfie presumption of tfie correctness of tfie finding of value by tfie appraiser in reappraisement No. 234863-A and establisfi tfie export value of tfie silk scarves in tfiat case of $2.87 per dozen, f. o. b. Yokohama, on April 25, 1953; (3) tfiat tfie record does not contain evidence of any sale of silk scarves consummated at tfie MITI price of $2.99 per dozen, f. o. b. Yokohama, except where a rebate or refund was made to tfie purchaser for tfie difference between tfie MITI price and tfie contracted purchase price. Based upon the findings of facts in tfie record before this division and after weighing all' of tfie evidence, we find tfiat tfie weight of tfie evidence supports tfie appraisement by tfie single judge and tfiat tfie merchandise involved in this appeal was freely offered for sale to all purchasers in tfie. principal markets of Japan, in tfie ordinary course of trade for exportation to tfie United States, within the meaning of 19 U. S. C., section 1402 (d) (section 402 (d) of tfie Tariff Act of 1930), at tfie export value of $2.85 per dozen in reappraisement No. 234862-A and $2.87 per dozen in reappraisement No. 234863-A.

The judgment of the trial court is affirmed. Judgment will be rendered accordingly.