Ampex Professional Products Co. v. United States

68 Cust. Ct. 249, 1972 Cust. Ct. LEXIS 2549
CourtUnited States Customs Court
DecidedMarch 14, 1972
DocketR.D. 11765
StatusPublished
Cited by2 cases

This text of 68 Cust. Ct. 249 (Ampex Professional Products Co. v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ampex Professional Products Co. v. United States, 68 Cust. Ct. 249, 1972 Cust. Ct. LEXIS 2549 (cusc 1972).

Opinion

Wilson, Judge:

The involved merchandise herein, consisting of six Marconi Mark IY television cameras and parts, purchased by plaintiff-importer from the manufacturer, The Marconi Company Limited (Marconi) of Chelmsford, England, and exported from that country on January 31, 1964, was appraised on the basis of export value, as defined in section 402 (b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, utilizing the sales price to the “least favored purchaser at wholesale”,1 the Columbia Broadcasting System (CBS) of Mark IV television camera equipment which had been modified in part to meet CBS’ specifications. Each of the 20-odd different items comprising this shipment was appraised, as indicated by the red ink markings on the customs invoice, at “Invoice Unit values, plus 11.11%, pkd.”

Plaintiff, in agreement with defendant that the merchandise is not on the Final List (T.D. 54521) and that export value is the proper basis of appraisement, contends that the invoice unit prices, packed, are the correct dutiable values.

The pertinent provisions of section 402, Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, are as follows:

(b) Expoet Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of [251]*251exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States.
(f) Definitions. — For the purposes of this section—
(1) The term “freely sold or, in the absence of sales, offered for sale” means sold or, in the absence of sales, offered—
(A) to all purchasers at wholesale, or
(B) in the ordinary course of trade to one or more selected purchasers at wholesale at a price which fairly reflects the market value of the merchandise,
without restrictions as to the disposition or use of the merchandise by the purchaser, except restrictions as to such disposition or use which (i) are imposed or required by law, (ii) limit the price at which or the territory in which the merchandise may be resold, or (iii) do not substantially affect the value of the merchandise to usual purchasers at wholesale.
(2) The term “ordinary course of trade” means the conditions and practices which, for a reasonable time prior to the exportation of the merchandise undergoing appraisement, have been normal in the trade under consideration with respect to merchandise of the same class or kind as the merchandise undergoing appraisement.
(3) The term “purchasers at wholesale” means purchasers who buy in the usual wholesale quantities for industrial use or for resale otherwise than at retail; or, if there are no such purchasers, then all other purchasers for resale who buy in the usual wholesale quantities; or, if there are no purchasers in either of the foregoing categories, then all other purchasers who buy in the usual wholesale quantites.
(4) The term “such or similar merchandise” means merchandise in the first of the following categories in respect of which export value, United States value, or constructed value, as the case may be, can be satisfactorily determined:
(A) The merchandise undergoing appraisement and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, the merchandise undergoing appraisement.
(B) Merchandise which is identical in physical characteristics with, and was produced by another person in the same country as, the merchandise undergoing appraisement.
[252]*252(C) Merchandise (i) produced in the same country and by the same person as the merchandise undergoing appraisement, (ii) like the merchandise undergoing ap-praisement in component material or materials and in the purposes for which used, and (iii) approximately equal in commercial value to the merchandise undergoing appraisement.
(D) Merchandise which satisfies all the requirements of subdivision (C) except that it was produced by another person.

The record consists of the testimony of three witnesses called by plaintiff, and one exhibit. The Special Customs Invoice and accompanying papers were received in evidence without being marked (R. 5).

James Scott, the import specialist who had handled the subject entry and advisorily appraised the merchandise, testified that the addition of 11.11 percent which was made to reflect the sales price of the Mark IV camera equipment to CBS was based on a Bureau of Customs ruling (exhibit 1) resulting from an inquiry into the relationship of Marconi with Ampex and CBS.

Exhibit 1, dated April 8, 1965, is a letter addressed to plaintiff’s counsel stating in pertinent part:

The record in this case reflects that the manufacturer sells its merchandise for export to the United States at two prices without regard to the quantities purchased. To the Columbia Broadcasting System (CBS), an industrial user, and to other users, sales are made at the full price without discount. The report reflects that the price to the CBS takes into account certain modifications rnactó to the CBS’s own specifications. CBS’s purchasing agent and engineer handling this equipment reports, however, that these modifications are minor in nature, such as different paint colors and different connectors, hinges, focus handles, etc.
Ampex Video Products Company, a wholesaler, purchases at the CBS prices less 10 percent (less 5 percent prior to September 22,1962). The manufacturer states that the discount is granted to Ampex in view of the services it provides to its purchasers, which services the manufacturer provides on direct sales to end users. These special services rendered by Ampex were previously enumerated as follows:
* * * * * * *
It is the Bureau’s opinion that the manufacturer’s policy in selling to purchasers for export to the United States reflects different prices to different classes of purchasers at the wholesale level, section 402(f) (3). Hence, the appraisement of television cameras and parts, pursuant to section 402, should proceed on the basis of export value as reflected by the price to the CBS, the least favored purchaser at wholesale.
This price is reflected either by the f.o.b. price to the CBS, net, or the f.o.b. price to Ampex, plus 11.11 percent (100 percent divided by 90 percent). * * *

[253]

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Related

J. E. Bernard & Co. v. United States
84 Cust. Ct. 122 (U.S. Customs Court, 1980)
Ampex Professional Products Co. v. United States
70 Cust. Ct. 312 (U.S. Customs Court, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
68 Cust. Ct. 249, 1972 Cust. Ct. LEXIS 2549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ampex-professional-products-co-v-united-states-cusc-1972.