DocketNumber： No. 4712
Citation Numbers： 40 C.C.P.A. 171, 1953 CCPA LEXIS 260
Judges： Cole, Connell, Garrett, Herein, Jackson, Place, Recalled, Worley
Filed Date： 1/14/1953
Status： Precedential
Modified Date： 10/18/2024
ON PETITION FOR REHEARING
The foregoing decision was agreed upon January 14, 1953. In conformity with our practice copies were distributed to the parties in interest but the decision was withheld from publication pending expiration of the time within which reconsideration or rehearing or other relief might be sought.
On January 30, 1953, a “Petition for rehearing” was filed on behalf of the Government and on February 5th a memorandum in opposition to the petition was filed on behalf of appellant. The memorandum denied the necessity for a rehearing but indicated “some clarification” might be helpful.
The petition has received our careful study with the result that we are not convinced that a rehearing is necessary, or desirable, but it is recognized that the final statement in our decision respecting the second importation made on January 6, 1944 (Entry 3770, Re-appraisement 160604-A) requires a correction in phraseology to express properly the views of this court as to the law here applicable and set forth the actual intent of this court's judgment.
Such correction is, of course, within the authority of the court at this stage of the proceedings.
As to the first importation, made December 2, 1943 — Entry No. 3009, Reappraisement 160603-A, we held, in effect, that sales and offers of sales made prior to the importation properly should have been taken into consideration in determining United States value as defined in section 402 (e) of the Tariff Act of 1930; and as to the second importation, entered January 6, 1944, we held, in effect, that sales and offers of sales of the merchandise included in the first importation (that of December 2, 1943) should have been considered in determining such United States value.
Relative to that importation, we pointed out that the evidence had not been evaluated by either of the tribunals of the Customs Court and, recognizing that court’s exclusive jurisdiction in the matter of fact finding, we directed that the case be remanded to the end that a restudy might be made and action taken in conformity with our holding as to the law.
* * * in view of the new interpretation of the law, as expressed in said opinion, the reversal and remand in connection with that reappraisement case are deemed proper. [Italics quoted.]
So no correction or clarification of the decision in that regard is required or sought.
The situation with respect to the second importation is different.
As to it, the petition first quotes verbatim the following from our decision:
The judgment of the appellate division of the Customs Court is reversed and the casé is' remanded to the end that the judgment sustaining the entered value in entry No. 3770, Reappraisement No. 160,604-A may be entered * * *. (Italics in petition.)
The petition then states:
If it [the so quoted excerpt] is to be read as though the word “the” refers to a judgment theretofore rendered by the Customs Court, then it is in error because no court ■previously entered a judgment sustaining the entered value in connection with said reappraisement case.
If it is to read with the word “a” substituted for the woid “the”, then it is also in error for the entered value in each case is in Mexican currency (Mex. pesos 2.42 and 2.75 per kilo) and represents the invoice price and alleged purchase price in Mexico (see page 2 of opinion, as well as page 2 of appellant’s and appel-lee’s briefs). It does not represent the gross or net selling price in the United States.
The purchase price in Mexico, in Mexican currency per kilo, could not conceivably represent the statutory United States value in the United States, for in the United States the importer claims a selling price in United States currency of $.55 per pound, from which it asserts that deductions should be made. Obviously, any sales made in the United States would be in United States currency.
Moreover, appellant’s brief, page 21, suggests a net United States value in Entry No. 3009 (Reappraisement No. 160603-A) of $.291 per pound, and, at page 22, a United States value, without asserting any entry number and presumably it refers to Entry No. 3770 (Reappraisement No. 160604-A) of $.2202 per pound, which mathematically should be $.2562 per pound as we note an error in deducting $.1406 from $.3608 instead of deducting $.1046.
Neither of these claimed values is the equivalent of the entered values in either case at the rate of exchange published for the respective dates of exportation in T. D. 50973 and T. D. 50985.
The foregoing criticism is conceded by us to be apropos and we regret that our views and intent were not more accurately phrased.
It should have been made clear that the Customs Court did not evaluate the evidence as to either of the two importations, and, instead of remanding the second to the end that a judgment be entered “sustaining the entered value,” it should have been remanded for an evaluation of the evidence by that court just as in the case of the second importation, with entry of judgment in conformity with its findings of fact under the law as stated in our decision.
The'original judgment will be amended to conform to this supplemental statement.
Other incidental matters mentioned in the petition (such, for example, as an expression concerning a “closed market,”) are deemed irrelevant to the case under the assignments of error accompanying the appeal.
It is thought that the correction herein made renders a rehearing or reargument unnecessary and, in so far as such is sought by the petitioner, it is denied.