Appraisement-separability-Where an appraisement is made at invoice
unit values and does not specifically reveal that alleged buying commis-
sions and inland charges, as invoiced, are included, the appraisement is
not separable and thus may not be challenged in part to dispute only the
dutiability of the commissions and inland charges. In such circumstances,
a party challenging the appraisement must establish that his claimed
values meet all elements of statutory value. R.D. 11774_.
Export value-selected purchaser-In the absence of sales in the home
market and to third countries, the price paid by the selected purchaser
can be shown to fairly reflect market value if it was the result of bona
fide negotiations between independent and unrelated parties, covered
the seller's costs of production, general expenses and profit, and was
similar to that of other sellers of the same type of merchandise. R.D.
11772_
Separability-burden of proof-Even if an appraisement is separable, it is
still part of the importer's burden of proof to establish that merchandise
such as or similar to the imported merchandise was freely sold or offered
for sale to all purchasers on an ex-factory or ex-warehouse basis. R.D.
11774.
Similar merchandise-remand-Where the Court of Customs and Patent
Appeals remanded the case for the purpose of permitting the Customs
Court to determine which, if any, importations of Japanese tennis shoes,
at the time of exportation, were "similar" to the domestically manu-
factured "Rover" being sold for domestic consumption and which were
not, and the plaintiff on the remand moved for an order dismissing the
case, it was held that the proper basis for determining the values of the
imported merchandise was the American selling price, as defined in sec.
402a (g), Tariff Act of 1930, as amended by the Customs Simplification
Act of 1956, and that under the authority of the decision of the Court of
Customs and Patent Appeals in A. Zerkowitz & Co. v. United States, 58
CCPA 60, C.A.D. 1005, 435 F. 2d 576 (1970), the dutiable values of the
imported merchandise were the appraised values. Accordingly, the
appeals for reappraisement were dismissed. R.D. 11773_.
Summary judgment, motion and cross-motion for-constructed value-
separability-Plaintiff moved for summary judgment, and defendant
cross-moved for the same relief, under Rule 8.2 of the Rules of the U.S.
Customs Court. In the pleadings it was conceded that constructed value
as defined in 19 U.S.C.A., sec. 1401a(d) (sec. 402(d), Tariff Act of 1930,
as amended by the Customs Simplification Act of 1956), was the proper
basis for the determination of the value of the imported merchandise,
and that the said merchandise and the parties were the same as the
merchandise and parties in H. M. Young Associates, Inc. v. United
States, 64 Cust. Ct. 642, R.D. 11695 (1970), wherein the reappraising
court held that amounts for royalty and trademark certification payments
totalling 36 cents which had been added to the invoice unit value of
U.S. $0.62 per yard, packed, in the appraisement of the merchandise
under the constructed value basis formed no part of the constructed
value of the merchandise. On the evidence presented, the court held that
the issues in the instant action were the same as those adjudicated in
R.D. 11695, and on the strength of the said evidence, coupled with
Summary judgment, motion and cross-motion for-Continued
certain pleading admissions, granted the plaintiff's motion and denied
the defendant's cross-motion under the doctrine of estoppel. C.D. 4388_
Rehearing denied; Appeal to U.S. Court of Customs and Patent
Appeals; Appeal: 5532.
United States value-negation of foreign or export value-Plaintiff,
claiming appraisement under United States value, as provided for in
section 402a (e) of the Tariff Act of 1930, as amended, must first negate
the existence of a foreign or export value. This includes proving that
there was no such value for similar merchandise or that there was no
similar merchandise. R.D. 11771 (Application for review filed).
Constructed value-burden of proof-Appellants must prove the elements of constructed value set out in section 402(d) of the Tariff Act of 1930, as amended. They need not reconcile a constructed value proved in this manner with a higher home market sale price. Appellee, if it seeks to counter appellants' proof with evidence derived from the home market, must show that elements of constructed value of the same merchandise sold by the exporter in the home market are higher than those in the claimed value. A.R.D. 306__-.
Appeal to U.S. Court of Customs and Patent Appeals; Appeal 5522 Constructed value-fair reflection of market value-There is no requirement that a constructed value fairly reflect market value. It is the elements of constructed value which must reflect their counterparts in sales in the export market. A.R.D. 306__
Appeal to U.S. Court of Customs and Patent Appeals; Appeal 5522 Constructed value-higher home market price-The existence of a home market price higher than the claimed constructed value does not, of itself, discredit the accuracy of the claimed elements of constructed value and is irrelevant to the issue of whether the elements of constructed value fairly reflect those which are usual in sales of merchandise of the same class or kind by other producers for export. A.R.D. 306.......
Appeal to U.S. Court of Customs and Patent Appeals; Appeal 5522 Constructed value-home market-Proof derived from constructed value in the home market relates to the accuracy of the figures used for the elements of constructed value of the exported merchandise and does not relate to the issue of whether the appropriate elements are in the amounts usual in sales of merchandise of the same general class or kind by other producers in the export market. A.R.D. 306.
Appeal to U.S. Court of Customs and Patent Appeals; Appeal 5522 Constructed value--jurisdiction-agent-consignee-presumption of correctness-failure of proof-profit-The trial court in its decision and judgment had sustained the appellee's claimed values respecting certain imported merchandise, and upheld the Government's appraised value respecting certain other merchandise. In a per curiam opinion, the Third Division, Appellate Term, unanimously reversed the trial court's judgment insofar as it sustained the appellee's claimed values. Judges Landis and Newman were of the view that the court had jurisdiction of all of the consolidated appeals for reappraisement, and on the merits, they reversed in part the judgment of the trial court. Judge Richardson was of the opinion that the court lacked jurisdiction of some of the appeals, and as to those cases he did not reach the merits, but would rather dismiss them. In the remaining cases, Judge Richardson was of the opinion that the court had jurisdiction and concurred with the holding of Judges Landis and Newman reversing in part on the merits. A.R.D. 310_
Appeal to U.S. Court of Customs and Patent Appeals; Appeal 5531
Evidence-sufficiency-A bare minimum of proof that the merchandise
was freely offered to all purchasers on an ex-factory basis, consisting of
statements of manufacturers unsupported by copies of offers, orders,
invoices, or lists of sales, or references to actual sales or offers, is insuffi-
cient in the face of other evidence which casts doubt on the statements or
discloses other elements bearing on the accuracy and completeness of
the evidence presented. A.R.D. 308----
Evidence-weight-The weight to be given to a report of a customs agent
made admissible by statute, 28 U.S.C. 2633 (1964 ed.), is a matter for
the trial court, as is the weight to be given evidence propounded by a
witness convicted of a crime involving moral turpitude. A.R.D. 308..........
Export value-usual wholesale quantities-Under the export value basis
of appraisement, market value must, among other things, represent a
price at which the imported merchandise in question is freely sold or
offered for sale in the usual wholesale quantities. In ascertaining the
usual wholesale quantities, the price for which merchandise sold in equiva-
lent individual unit quantities must be shown, which, when combined,
form the greatest aggregate volume. Usual wholesale quantities are not
derived from the total volume of goods sold over a given period of time
to one or more purchasers. A.R.D. 309...
Final List-machines-(similar to chain hoists)-In affirming the decision
and judgment of the trial judge holding that the imported chain hoists
were properly found by the appraising official to be included on the
Final List published by the Secretary of the Treasury, T.D. 54521, as
"Machines, lifting and pulling (similar to chain hoists)***,"the appel-
late term held that the meaning of the parenthetical language "similar
to chain hoists" in the Final List is intended to cover both chain hoists
and similar machines as found by the trial court; that such language is
explanatory, intending to indicate the type of article covered by the
language "Machines, lifting and pulling;" and that the imported chain
hoists were properly subject to appraisement under sec. 402a of the
Tariff Act of 1930, as amended by the Customs Simplification Act of
1956, T.D. 54165. A.R.D. 305..
Selected purchaser fairly reflects market value-export value-In
affirming the decision and judgment of the trial court, the appellate term
held that on the basis of the record presented, the plaintiff had failed to
make a prima facie case in that it had failed to establish that certain
types of key chains were freely sold to all purchasers at wholesale or that
the claimed values fairly reflected market value, and therefore the
appraised values were correct. A.R.D. 307..
Separability of appraisement-commissions-The invoices listed the
various articles of merchandise and gave unit ex-godown prices, total
ex-godown prices, amounts for commissions, bank interest, and inland
shipping charges, and resulting total invoice values. Entry was made at
the total invoice values less the bank interest charges, which were
stipulated to be nondutiable. The merchandise was appraised as entered.
HELD: In the absence of evidence showing how the appraising officer
arrived at the appraised values, the appraisements are not separable.
It is presumed that he properly ascertained the unit values of the
merchandise. It does not follow that those values consisted of the
invoiced ex-godown unit prices plus a proportionate share of the charges.
The fact that a mathematical computation can be made which would
equal the total appraised values does not establish that the appraisements
were made in that fashion. Even if the commissions are bona-fide buying
commissions, they may not be deducted where the evidence does not
establish that the appraised values included the commissions. The
decision and judgment of the trial court was affirmed. A.R.D. 304__.
Appeal to U.S. Court of Customs and Patent Appeals; Appeal 5519.
Remand to single judge-export value-Where the court held that an article invoiced as a "Small Nud Nick w/gold ball chain," consisting of a key chain and a "Nud Nick" head, was improperly classified as an entirety, and that the key chain and the "Nud Nick" head were properly dutiable as separate items, the matter was remanded to a single judge sitting in reappraisement to determine the proper dutiable values of the key chain and the "Nud Nick" head. On remand the single judge, based upon the findings of fact and conclusions of law as agreed to by the parties, found that export value as defined in sec. 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, was the proper basis for determining the value of the merchandise; that the correct export value for the key chains was $0.13 per dozen pieces plus 3.22 percent, packed; and that the correct export value for the "Nud Nick" heads was $0.68 per dozen pieces plus 3.22 percent, packed. V.D. 157..
Merchandise-Reappraisements
Elastics, waistband, C.D. 4388
Footwear, R.D. 11773
Musical instruments, R.D. 11774
Waistband elastics, C.D. 4388
Wearing apparel R.D. 11772
Bamboo articles, etc., A. R.D. 308
Chains, key, A.R.D. 307
Electronic machinery and equipment, A.R.D. 310
Key chains, A.R.D. 307
Mechanical equipment, A.R.D. 305
Phonograph records, A.R.D. 306
Plaster-of-paris statuettes and bas reliefs, A.R.D. 309
Tape recorders A.R.D. 304
Key chain, V.D. 157
"Nud Nick" head, V.D. 157
ADMINISTRATIVE EXEMPTION
JUDICIAL DISCOVERY PRIVILEGE (see MOTION FOR DISCOVER Y;
DISCOVERY, MOTION FOR, C.R.D. 72–19).
APPEALABLE CONTROVERSY, NO
CONSENT TO ENTRY OF JUDGMENT (see MOTION TO SUSPEND UNDER
TEST CASE; TEST CASE, MOTION TO SUSPEND UNDER,
C.R.D. 72-22).
APPEALED, RECORD OF ACTION
SUMMARY JUDGMENT, BRIEFS IN SUPPORT OF CROSS-MOTIONS NOT INCLUDED IN RECORD OF ACTION APPEALED (see MOTION TO SETTLE RECORD; RECORD, MOTION TO SETTLE, C.R.D. 72–15). APPEALS COVER VARIETY OF MACHINE TOOLS DIFFERING AS TO TYPE, ETC.
CONSOLIDATION OF APPEALS, OBJECTION TO (see MOTION TO CON-
SOLIDATE APPEALS AND SERVE SINGLE COMPLAINT
COVERING ALL CONSOLIDATED CASES; CONSOLIDATED
CASES, MOTION TO CONSOLIDATE APPEALS AND SERVE
SINGLE COMPLAINT COVERING ALL, C.R.D. 72–17).
APPRAISEMENT
MADE PRIOR TO ENACTMENT OF NEW LAW; LIQUIDATION MADE SUBSE-
QUENT TO ENACTMENT OF NEW LAW (see MOTION TO DISMISS
CIVIL ACTION; CIVIL ACTION, MOTION TO DISMISS,
C.R.D. 72-20).
NOT FINAL; NOTICE OF APPRAISEMENT NEVER RECEIVED, VALID (see
MOTION TO DISMISS CIVIL ACTION; CIVIL ACTION, MO-
TION TO DISMISS, C.R.D. 72-20).
BRIEFS IN SUPPORT OF CROSS-MOTIONS FOR SUMMARY
JUDGMENT NOT INCLUDED IN RECORD OF ACTION
APPEALED
RECORD OF ACTION APPEALED (see MOTION TO SETTLE RECORD;
RECORD, MOTION TO SETTLE, C.R.D. 72–15).
BURDEN OR EXPENSE FOR DEFENDANT, UNDUE
MOTION TO TAKE DEPOSITION UPON ORAL EXAMINATION (see MOTION
TO TAKE DEPOSITION UPON ORAL EXAMINATION; DEP-
OSITION UPON ORAL EXAMINATION, MOTION TO TAKE,
C.R.D. 72-27).
PROTECTIVE ORDER (see MOTION TO TAKE DEPOSITION UPON
ORAL EXAMINATION; DEPOSITION UPON ORAL EXAMI-
NATION, MOTION TO TAKE, C.R.D. 72–27).
CASES INVOLVE DIFFERENT TYPES AND MODELS OF MA-
CHINE TOOLS
CONSOLIDATION OF CASES, OBJECTION TO (see MOTION TO CON-
SOLIDATE APPEALS AND SERVE SINGLE COMPLAINT
COVERING ALL CONSOLIDATED CASES; CONSOLIDATED
CASES, MOTION TO CONSOLIDATE APPEALS AND SERVE
SINGLE COMPAINT COVERING ALL, C.R.D. 72-16).
CIVIL ACTION, MOTION TO DISMISS
MOTION TO DISMISS CIVIL ACTION (see MOTION TO DISMISS CIVIL ACTION; CIVIL ACTION, MOTION TO DISMISS, C.R.D. 72-20).
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