C. J. Tower & Sons of Niagara, Inc. v. United States

61 Cust. Ct. 488, 1968 Cust. Ct. LEXIS 2220
United States Customs Court·Decided September 12, 1968·No. R.D. 11577; Entry No. NF 8915, etc.·Published·Cited by 1 cases

Opinion

Ford, Judge:

The cases listed in schedule “A,” annexed hereto and made a part hereof, consolidated for the purpose of trial, cover the importation of certain repair parts for can-closing machines and can-making machines, exported by a subsidiary of the actual importer herein, American Can Co.

All of the merchandise was entered after the effective date of the Customs Simplification Act of 1956,91 Treas. Dec. 295, T.D. 54165, and does not appear on the final list promulgated by the Secretary of the Treasury, 93 Treas. Dec. 14, T.D. 54521. The merchandise was appraised on the basis of constructed value as defined in section 402(d), Tariff Act of 1930, as amended, infra, at the “invoiced unit prices, plus 7.53 percent, plus 36.7 percent profit, pkd., Can. $.”

[489]*489Counsel for tbe respective parties stipulated that the invoiced value represents cost of materials and fabrication, and other processing employed in producing the merchandise as well as the cost of all containers and coverings. It was also agreed that no amount for general expenses and profits was included in the invoiced price and the increase of 7.53 percent represents an exchange conversion factor, which plaintiff does not contest. The parties have also stipulated that the figure of 36.7 percent added to the appraisement represents 20.8 percent for general expenses and 15.9 percent for profit. The balance of the stipulation insofar as is pertinent provides as follows:

1. The merchandise involved in the instant appeal for reappraisement consists of can making machine repair parts (hereinafter called MRP) and can closing machine repair parts (hereinafter called CMRP) entered in ten separate entries at Niagara Falls, New York, between the dates of December 21,1962 and March 27,1963. * * * The exporter American Can Company of Canada, Limited, Hamilton, Ontario, is a wholly-owned subsidiary of the American Can Company, a domestic corporation, on whose account the merchandise was entered.

$ $ ‡ ‡ $

5. CMRP are items of the same general class or kind as MRP in that they are alike in component materials and in the purposes for which used, and they are approximately equal in commercial value. MRP and CMRP are not manufactured and sold in Canada by any other producer, either for consumption in Canada or for export to the United 'States. MRP are not sold by American Can Company of Canada, Limited, to any customers in Canada. The only sales of CMRP and MRP for export to the United States by the American Can Company of Canada, Limited, are to the American Can Company. CMRP are sold in the ordinary course of trade by American Can Company of Canada, Limited, for home consumption.

6. This appeal is limited to a challenge to the amounts included by the appraiser for general expenses and profits under Section 402(d) (2) of the Tariff Act of 1930, as amended.

Plaintiff contends the figures representing general expenses and profit, as added by the appraiser, are incorrect since they include certain expenses incurred in sales for the home market which are not incurred in sales to the United States. The elimination of these items, plaintiff claims, will result in a proper appraised value. The pertinent portions of the statutes involved herein read as follows:

Section 402(d) of the Tariff Act of 1930, 46 Stat. 708, as amended by the Customs Simplification Act of 1956,70 Stat. 944:

(d) CoNStrtjcted Value. — For the purposes of this section, the constructed value of imported merchandise shall be the sum of—

_(1) the cost of materials (exclusive of any internal tax applicable in the country of exportation directly to such materials or [490]*490their disposition, but remitted or refunded upon the exportation of the article in tbe production of which such materials are used1) and of f abrication or other processing of any kind employed in producing such or similar merchandise, at a time preceding the date of exportation of the merchandise undergoing appraisement which would ordinarily permit the production of that particular merchandise in the ordinary course of business;
(2)' an amount for general expenses and profit equal to that usually reflected in sales Of merchandise of the same general class or kind as the merchandise undergoing appraisement which are made by producers in the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for shipment to the United States; and
(3) the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the merchandise undergoing appraisement in condition, packed ready for shipment to the United States.

Section 402(g) of the Tariff Act of 1930, 46 Stat. 708, as amended by the Customs Simplification Act of 1956,70 Stat. 495:

(g) Transactions Between Related Persons.—
(1) For the purposes of subsection (c) (1) or (d), as the case may be, a transaction directly or indirectly between persons specified in any one of the subdivisions in paragraph (2) of this subsection may 'be disregarded if, in the case of any element of value required to be considered, the amount representing' that element does not fairly reflect the amount usually reflected in sales in the market under consideration of merchandise of the same general class or kind as the merchandise undergoing appraisement. If a transaction is disregarded under the preceding sentence and there are no other transactions available for consideration, then, for the purposes of subsection (d), the determination of the amount required to be considered shall be based on the best evidence available as to what the amount would have been if the transaction had occurred between persons not specified in any one of the subdivisions in paragraph (2).
(2) The persons referred to in paragraph (1) are:
* $ # Jfc # $ ‡
(E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting stock or shares of any organization and such organization; * * *.

The record herein consists of the testimony of one witness called on behalf of plaintiff and two witnesses called on behalf of defendant as well as seven exhibits received on behalf of plaintiff. Mr. Mix, Director of Accounting Services of the rigid container operation of American Can Co., testified relative to the operation of the company [491]*491and an explanation of tlie various cost accounting forms used by bis company, which were offered in evidence.

Mr. Mix testified that during 1962 and 1963 he held the positions of Manager of the Budget Financial Analysis Division of the CANCO Division and Assistant Comptroller of the CANCO Division. In the latter capacity, he was responsible for the machine shop and closing machine station accounting, having functional authority in the maintenance of the books for the Canadian firm. There were six container manufacturing locations in Canada, and machines and repair parts were manufactured at Niagara Falls. Separate facilities are maintained for the service function at Niagara Falls, Montreal, and Vancouver. At the closing machine stations, closing equipment was leased and overhauled and repair parts were sold to leasing customers in Canada. Such parts were sold at Niagara Falls and Vancouver.

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C. J. Tower & Sons of Niagara, Inc. v. United States, 61 Cust. Ct. 488, 1968 Cust. Ct. LEXIS 2220 (cusc 1968).

61 Cust. Ct. 488 (C. J. Tower & Sons of Niagara, Inc. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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