Descoware Corp. v. United States

58 Cust. Ct. 698, 1967 Cust. Ct. LEXIS 2411
CourtUnited States Customs Court
DecidedMay 4, 1967
DocketR.D. 11297; Entry No. DE 26707
StatusPublished
Cited by5 cases

This text of 58 Cust. Ct. 698 (Descoware Corp. 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
Descoware Corp. v. United States, 58 Cust. Ct. 698, 1967 Cust. Ct. LEXIS 2411 (cusc 1967).

Opinion

Wilson, Judge:

The imported articles covered by this reappraisement appeal consist of 11 separately identified items of enamelware which were manufactured in Brussels, Belgium, and exported therefrom on or about October 16, 1959. This merchandise is included in the final list promulgated by the Secretary of the Treasury, 93 Treas. Dec. 14, T.D. 54521.

Counsel for the parties entered into the following stipulation relative to the value of 5 of the 11 items appearing on the invoice:

That with regard to the following items appearing on the invoice, the foreign value for such merchandise as defined by Section 402a (c) [700]*700as amended, at the time of exportation, are the unit values appearing opposite the listed items, plus 10 per cent Belgium tax, minus 40 per cent discount, plus the prorated part of the invoiced export packing. Such items a,re:

17/D Covered Casserole, RC 22 — 170 Belgium Francs each.
7/A Sauce Pans, SP 214 — 70 Belgium Francs each.
7/A Sauce Pans, SP 21403 — 84 Belgium Francs each.
23/D 1200 Skillet [SK 28] — 120 Belgium Francs each.
23/D [480] Cast Cover [for Skillet CC 28] — 95 Belgium Francs each.

I further offer to stipulate that with regard to the foregoing, there was no higher export value as defined by Section 402a (d) as amended, for such or similar merchandise at the time of exporation. [R. 3-4.]

Counsel further stipulated that there was no foreign value, export value, or United States value as defined in sections 402a (c), (d), and (e) of the above amended tariff act for the other six items appearing on the invoice consisting of items 81/A skillet SK 23; 81/C skillet SK 19; 7/A cast cover for saucepan CC 14; 81/A skillet SK 2303; 81/C skillet SK 1903; and 7/A cast iron cover for saucepan CC 1403, and that they are properly dutiable on the basis of cost of production as defined in section 402a(f) of the above amended tariff act, which was the basis for appraisement of said identified six items.

The only evidence introduced in this case is the affidavit of Octave Rary, plaintiff’s exhibit 1, which was executed before an American Consul on February 3, 1966, at Brussels, Belgium, more than 6 years after the date of exportation. It was received as plaintiff’s exhibit 1 subject to the right of the defendant to raise objections in its brief (R. 10).

The only question remaining for decision is whether the evidence in the record supports a statutory cost of production for the foregoing six identified items different from the presumptively correct cost of production returned by the appraiser (28 U.S.C. § 2633).

The statutory provision under consideration is section 402a(f) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, which reads as follows:

(f) Cost or Peoduction*. — For the purpose of this title the cost of production of imported merchandise shall be the sum of—

(1) The cost of materials of, and of fabrication, manipulation, or other process employed in manufacturing or producing such or similar merchandise, at a time preceding the date of exportation of the particular merchandise under consideration which would ordinarily permit the manufacture or production of the particular merchandise under consideration in the usual course of business;

(2) The usual general expenses (not less than 10 per centum of such cost) in the case of such or similar merchandise;

[701]*701(3) The cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the particular merchandise under consideration in condition, packed ready for shipment to the United States; and

(4) An addition for profit (not less than 8 per centum of the sum of the amounts found under paragraphs (1) and (2) of this subdivision) equal to the profit which ordinarily is added, in the case of merchandise of the same general character as the particular merchandise under consideration, by manufacturers or producers in the country of manufacture or production who are engaged in the production or manufacture of merchandise of the same class or kind.

Plaintiff’s exhibit 1 discloses that the affiant was the managing director of the exporter from June 1951 to April 1960 at which time he became its president. Mr. It ary further states that he is personally familiar with the sale of the firm’s enameled cast-iron ware for home consumption and for export to the United States; and that as managing director he was personally familiar with the cost accounting of the various enamel cast-iron ware that the firm manufactured for home consumption and for export to the United States. Since 1951, sales to the United States have been limited to two purchasers and in more recent years to one purchaser. Such or similar merchandise was not freely offered for sale in the United States to other buyers. The iron handle skillets were first manufactured in late 1949 and 1950 for export only to the United States and were never sold for home consumption in Belgium. The skillets with wooden handles are sold for home consumption and are produced one piece at a time, whereas iron handle skillets and covers are mass produced in multiple cavity molds and, therefore, are manufactured at a considerably cheaper production cost than the wooden handle skillets.

The affiant further alleges that, during the latter half of 1959, the pricing of iron handle skillets for exportation to the United States “was so low that we were selling at a loss.” He also sets forth that the cost of production figures which are stated in the affidavit “are taken from my copies of profit and loss statements and represent the actual costs to my company in the manufacture of the iron handle skillets during the latter half of 1959.” He lists the cost of production of the six items contested herein under the following subdivisions:

1. Raw materials and consumption materials — power—labor cost and their extensions — paying off of the equipment

2. General expenses including foremen wages — staff wages — office expenses

3. Cost of Packing and delivery F.O.B.

The affiant also asserts that one other named firm, located at Aude-narde, Belgium, “is the only other manufacturer of enamelled cast-iron [702]*702ware similar to that manufactured by” the exporter, but adds “However, that firm to my knowledge did not make any of the iron handle skillets or cast iron covers such as we manufactured solely for export to the United States.” [Emphasis supplied.]

Plaintiff’s brief, page 3, alleges that, although exhibit 1 reveals that there was one other manufacturer of enamelware in Belgium, “that firm did not make any iron handle skillets or cast iron covers such as involved herein, therefore, following the case of United States v. F. B. Vandegrift & Co. et al., 26 CCPA 360, 368, C.A.D.

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Related

Kaysons International, Ltd. v. United States
66 Cust. Ct. 560 (U.S. Customs Court, 1971)
Descoware Corp. v. United States
65 Cust. Ct. 822 (U.S. Customs Court, 1970)
Majestic Electronics, Inc. v. United States
63 Cust. Ct. 628 (U.S. Customs Court, 1969)
Frank P. Dow Co. v. United States
59 Cust. Ct. 697 (U.S. Customs Court, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
58 Cust. Ct. 698, 1967 Cust. Ct. LEXIS 2411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/descoware-corp-v-united-states-cusc-1967.