DocketNumber: Reap. Dec. 10109; Entry Nos. A-866; A-32
Citation Numbers: 47 Cust. Ct. 525
Judges: Wilson
Filed Date: 11/27/1961
Status: Precedential
Modified Date: 9/9/2022
These appeals for reappraisement involve the dutiable value of certain metal pencil sharpeners, exported from West Germany on June 20,1958, and April 30,1959. The articles in question were entered at the unit prices in deutsche marks, represented by the same unit figures listed in deutsche marks on the invoices under the heading “current price home consumption.” Upon entry, the importer added one-third to make market value, less 2 per centum cash discount, plus packing. The merchandise in question was appraised as entered.
Plaintiff, in the appeals, apparently contends that the proper dutiable values are the entered values, less 25 per centum discount, or, alternatively, the entered values, less 10 per centum, less 2 per centum cash discount, plus packing. Essentially, the issue here is whether an allowance of 25 per centum discount, claimed by the plaintiff as that given to so-called “wholesalers,” or, alternatively, an allowance of 10 per centum, claimed given to so-called retailers in purchases of large quantities, should be made in the determination of the value of the involved merchandise.
It was agreed by both parties that foreign value, as that value is defined in section 402a(c) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165, is the proper basis for appraisement of the imported merchandise.
Section 402a (c) of the Tariff Act of 1930, as amended, supra, defines foreign value as “the market value or the price at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, 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.”
Plaintiff’s exhibit 2 is really inconsistent with plaintiff’s exhibit 1. The affiant in plaintiff’s exhibit 2 states that a 5 per centum rebate was given to retailers whose orders amounted to 100 DM, that a 10 per cen-tum rebate was given to retailers whose purchases amounted to 250
The plaintiff has been completely misguided in his approach to this case by confusing the term “wholesaler” with the provision of the law referring to “all purchasers * * * in the usual wholesale quantities and in the ordinary course of trade.” In a long series of cases, our appellate court has uniformly held that “The law is not concerned with the persons who buy, but the manner in which they buy,” and, furthermore, that the merchandise must have been offered at a certain price to all purchasers, not just to a select group. United States v. Richard & Co., 15 Ct. Cust. Appls. 143, T.D. 42216; Adolph Goldmark & Sons Corp. v. United States, 22 C.C.P.A. (Customs) 358, T.D. 47378; United States v. Mexican Products Co., 28 C.C.P.A. (Customs) 80, C.A.D. 129; United States v. Glanson Co., 47 C.C.P.A. (Customs) 110, C.A.D. 740.
In the Richard & Co. case, supra, the court stated the law as follows, page 147:
It is argued because sales to wholesalers are all made at the same price that therefore this price thus becomes the wholesale price. But it will be observed that the statute does not thus establish the wholesale price. Section 402(b) [now section 402a (e), supra] does not provide that the wholesale price shall be the price to wholesalers, but the price in the usual wholesale quantities.*528 The law is not concerned with, the persons who buy, but the manner in which they buy. [Italics quoted.]
In tbe Glanson Co. case, supra, the Richard & Co. case, supra, was cited with, approval, the court holding, page 113:
The importer contends that if a foreign value is to be found here it should be on the basis of the price offered to jobbers and wholesalers since the record shows that the majority of the manufacturer’s sales were made to purchasers of that type. However, as was said in United States v. Richard & Co., 15 CCPA [sic] 143, T.D. 42216, with respect to foreign value, “The law is not concerned with the persons who buy, but the manner in which they buy.” The comparative volume of sales is pertinent where the merchandise is sold at different wholesale prices depending upon the quantity purchased, but where, as is the case here, the price to any given purchaser is the same regardless of quantity, it is immaterial what classes of purchasers buy the most. In both American Shipping Co. v. United States, and United States v. Mexican Products Co., supra, the foreign value was found to be the price charged to the least favored class of purchasers, notwithstanding the fact that most of the sales were made to more favored purchasers who paid lower rates.
In this case, the evidence is wholly insufficient to discharge the burden placed upon the plaintiff of overcoming the presumption of correctness which, as a matter of law, attaches to the appraisement fixed by the appraiser. Nor does the evidence even tend to establish any other foreign value than that placed upon the goods by the appraiser.
For the reasons above set forth, I find as matters of fact:
1. That the involved merchandise consists of metal pencil sharpeners, exported from West Germany on June 20, 1958, and April 30, 1959.
2. That such or similar merchandise was freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, at the manufacturer’s list price, represented by the entered value, in each case.
3. That the evidence adduced by the plaintiff fails to establish that the appraised value is erroneous or that other values claimed by the plaintiff are correct.
4. That such or similar merchandise was not freely offered for sale for export to the United States.
I conclude as matters of law:
1. That there is no export value, as that value is defined in section 402a (d) of the Tariff Act of 1930, as amended, for the importations at bar.
2. That foreign value, as that value is defined in section 402a (c) of the Tariff Act of 1930, as amended, is the proper basis for appraisement of the merchandise in question.
3. That the value returned by the appraiser, which is presumptively correct, has not been overcome.
Judgment will be entered accordingly.