C. S. Emery & Co. v. United States

73 Cust. Ct. 84, 1974 Cust. Ct. LEXIS 3011
CourtUnited States Customs Court
DecidedAugust 27, 1974
DocketC.D. 4557; Court No. R67/913
StatusPublished
Cited by1 cases

This text of 73 Cust. Ct. 84 (C. S. Emery & 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
C. S. Emery & Co. v. United States, 73 Cust. Ct. 84, 1974 Cust. Ct. LEXIS 3011 (cusc 1974).

Opinion

Re, Judge:

In this appeal for reappraisement the merchandise consists of two-inch thick sawn slabs of black granite exported from [85]*85Canada on July 30,1964 and entered at the border port of Derby Line, Vermont. The granite "was shipped by truck from Alma, Quebec by the seller, National Granite, Ltd. (National) to the John Swenson Granite Co., Inc. (Swenson) at Concord, New Hampshire.

The customs and commercial invoices disclose that the granite was sold to Swenson at a delivered price (“FOB Concord N.H.”) of U.S. $3.35 per square foot, including duties. It was entered at an invoiced unit value of U.S. $2.10 per square foot (selling price less claimed nondutiable charges of 97 cents per square foot for bracing and transportation, and 28 cents per square foot for duty and brokerage ifees).

The merchandise 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, at U.S. $3,015 per square foot, net packed. According to the testimony of the appraiser, the appraised value was calculated by deducting 28 cents for duty and brokerage, and then deducting the freight charges within the United States from the border (Derby Line) to Barre, Vermont.

Plaintiff agrees that export value, section 402 (b) supra, is the correct basis of appraisement, but contends that U.S. $2.10 per square foot, the alleged ex-quarry price of the granite slabs, represents the correct dutiable value. Plaintiff urges, alternatively, that if the appraiser’s method of determining value is upheld, he should have made a larger allowance for duty, i.e., 36.41614 cents which, with the uncontested deductions for brokerage and freight, would result in a dutiable value of U.S. $2.91% per square foot, net packed.

The record consists of the official papers, the testimony of two witnesses called by plaintiff, and four exhibits also submitted by plaintiff.

Mr. Paul Bobitaille, president and general manager of National, who supervised production, administration and sales, testified that National produces rough, semifinished and finished granite mainly for building work; that the imported granite came from a quarry located about 25 miles from its office in Alma, Quebec; and that the shipment herein was delivered pursuant to a contract (exhibit 1) with Swenson for the sale of granite slabs and blocks to be used in construction of a building in New York City. National used its own trucks and braces to transport most of the merchandise to Concord. Swenson, which has finishing facilities in Concord, New Hampshire, put the finish on the rough sawn slabs and cut them to size, ready for installation in the building then under construction.

The contract, which is dated March 21, 1963, in relevant part, provided that National “deliver sufficient wire sawed slabs so that Swenson may fabricate therefrom * * * approximately 190,000 net square feet of 2 inch thick stones * * Delivery of the two-inch slabs was to [86]*86commence oh or about February 20, 1963 in quantities of “approximately 5,000 net square feet of 2 inch slabs each week until completion.” Deliveries, Mr. Robitaille testified, commenced early in 1903 and ended about two years later.

The agreement called for payment of U.S. $3.35 per net square foot for two-inch slabs “delivered to and accepted by Swenson” with the proviso that—

“(8) The prices for slabs set forth in paragraph (7) include the costs of delivery to Swenson at its plants in Concord, New Hampshire. If Swenson shall direct delivery of slabs to other fabricating plants in New England, the prices shall be adjusted to reflect any increase or decrease in the cost to National of delivery. * * *”

The contract provided that National could bill Swenson at the rate of $2.50 per square foot for any slabs in stock it had on hand at the end of any month. It also provided that in the event Swenson terminated the agreement for any cause except breach or default by National, Swenson would pay $2.50 per square foot for all slabs produced by National and in stock in Canada.

Mr. Robitaille, who had participated in the contract negotiations with Swenson, said that National “tried to arrive at a higher price, of course, and we came to this final price” of $3.35 per square foot, lie had estimated that National would make a profit on the $3.35 price by figuring on 50 cents per foot for material, $1.50 for labor and 25 cents for depreciation and profit, which came to $2.25 in Canadian currency and $2.10 in United States currency. He then arrived at the $3.35 figure by adding 97 cents to cover the cost of bracing and transportation down to Swenson’s plant, and 28 cents for duty and brokerage fees.

Mr. Robitaille testified that bracing was necessary to protect the brittle granite slabs against breakage during shipment. He admitted, on cross-examination, that in establishing a “cost of the price for the Swenson order, I took into consideration the volume of the job and the size of the stone.”

The witness “would” have sold the merchandise ex-quarry to Swen-son at a price of U.S. $2.10 per square foot. However, since the slabs were brittle and subject to excessive breakage if hauled by inexperienced people, Swenson wanted a delivered price so that National would be responsible for breakage.

Mr. Robitaille testified that, during the 1963-1965 period that National was delivering granite to Swenson, it had quoted a price of $2.25 per square foot, Canadian Currency, f.o.b. its plant to a Canadian firm for black granite slabs similar to those in issue. It produced three invoices (exhibits 2, 3 and 4) for sales in December 1964 and [87]*87February 1965 of two-inch black granite slabs at $2.25 per square foot to a firm in Quebec.

The witness was willing to sell the material at the $2.25 price to anybody at that time. But he could “not recall” whether he sold similar slabs to other firms during this period, stating that “[t]hese [Quebec invoices] are the only invoices we found.” However, he noted that “[i]t does not mean that we. did not sell more.” He subsequently stated under cross-examination that he could not recall sales in 1963, but that “[w]e had other customers in 1964, I think,” which sales were made “ [p]robably by written orders.”

When asked if he had entered into written agreements during 1965 with purchasers other than Swenson for the sale of two-inch granite slabs, Mr. Robitaille replied “[p]ossibly, but I do not recall either.” Upon further questioning, he agreed that during 1963, 1964 and 1965 he sold to others than Swenson; that the sales were usually in the form of a written order; and that he would keep a copy of the order “[f]or a certain period of time * * However, he could not produce any contracts or memoranda of the sales made during this period.

The witness explained that it was not possible to have price lists, and that National seldom gave standard prices because they “vary with the type of granite, the finishes, the thicknesses, and the work involved in the stone.”

Mr. Robitaille stated that the provision in the Swenson contract for payment of $2.50 per net square foot, for.all undelivered slabs National had on hand at the end of the month, covered storage costs. It was also intended to assist National financially since its plant had burned down and the machinery had to be rebuilt.

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Related

Majestic Electronics, Inc. v. United States
84 Cust. Ct. 38 (U.S. Customs Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
73 Cust. Ct. 84, 1974 Cust. Ct. LEXIS 3011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-s-emery-co-v-united-states-cusc-1974.