Carmichael International Service v. United States

78 Cust. Ct. 143, 1977 Cust. Ct. LEXIS 938
CourtUnited States Customs Court
DecidedJune 9, 1977
DocketC.D. 4700; Court Nos. R70/9113, etc.
StatusPublished

This text of 78 Cust. Ct. 143 (Carmichael International Service 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
Carmichael International Service v. United States, 78 Cust. Ct. 143, 1977 Cust. Ct. LEXIS 938 (cusc 1977).

Opinion

Maletz, Judge:

These eight consolidated cases involve the proper dutiable values of certain wigs and other human hair pieces which were sold in Hong Kong for exportation to the United States by Croset & Company, Ltd. of Hong Kong. The merchandise covered by seven of the eight cases was exported from September 1964 through November 1965 and entered at the port of Los Angeles during the same period by Carmichael International Service (Carmichael) for the account of the M. Calig Company of Los Angeles. The merchandise covered by the eighth case was exported in November 1965 and entered at the port of Los Angeles in the same month by Carmichael for the account of the Hong Kong Trading Corporation of Los Angeles.

The imported merchandise was appraised by the government on the basis of export value as defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, based on prices for similar merchandise. Plaintiff agrees that export value is the correct basis of the appraisement, but contends that the correct export values are represented by the actual prices paid to the manufacturer for such merchandise, as set forth in the invoices.

The Statute

Section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956 (19 U.S.C. 1401a) provides as follows:

(b) Export value.
For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at [145]*145which 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.
(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.
(C) Merchandise (i) produced in the same country and by the same person as the merchandise undergoing appraisement, (ii) like the merchandise undergoing appraisement 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.

[146]*146The Issue

The question presented is whether plaintiff has proven by a preponderance of the evidence that its claimed values, i.e. the invoice prices, represent the proper dutiable values of the importations in question. This, in turn, depends on whether plaintiff has established that “such merchandise, i.e. merchandise identical to the merchandise in question, was freely sold or, in the absence of sales, freely offered for sale, in the ordinary course of trade, for exportation to the United States at prices equal to the invoice prices.1

The Record

The record consists of (1) an affidavit of Fanny Wan who identified herself as -'bookkeeper and secretary” of the Croset company (plaintiff’s exhibit 1); (2) the testimony of Milton Calig, president of the Calig company; (3) aletter dated July 9, 1965 from Mr. Calig to the customs appraiser of merchandise at Los Angeles (defendant’s exhibit A); (4) a customs agent’s report dated December 14, 1965 concerning wigs sold by the Croset company (defendant’s exhibit B); and (5) the official papers in the eight cases. In addition, the record in Majestic Electronics, Inc. v. United States, 63 Cust. Ct. 628, R.D. 11686 (1969) was incorporated on motion by plaintiff and over objection by defendant on the ground that it was immaterial.

Summary of Record

Given the circumstances present here, the action is best understood by summarizing the relevant portions of the record starting with plaintiff’s exhibit 1, the affidavit executed by Fanny Wan on September 24, 1970 in Hong Kong. In her affidavit Miss Wan states that during the period January 1, 1964 to December 31, 1965 she was bookkeeper and secretary of the Croset company (Croset); that in that capacity she was fully and personally familiar with all sales and offers for sale made by Croset during that period, involving wigs and other human hair pieces, and with their selling prices; that she was fully familiar with sales of wigs2 by Croset to the Calig company (Calig); and that all of the sales to Calig consisted entirely of items which were being closed out, or which had been overstocked.

Miss Wan further states in her affidavit that the prices of wigs sold by Croset to Calig varied from time to time, depending upon market [147]*147conditions, but that such wigs were at all times freely offered for sale, for exportation to the United States, to anyone wishing to purchase, at the same prices at which they were sold to Calig. Attached to the affidavit are copies of an invoice to Calig and an invoice to Hong Kong Trading Corporation of Hollywood, California, dated November 2 and November 8, 1965, respectively,3

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Cite This Page — Counsel Stack

Bluebook (online)
78 Cust. Ct. 143, 1977 Cust. Ct. LEXIS 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmichael-international-service-v-united-states-cusc-1977.