Getz Bros. v. United States

55 Cust. Ct. 693, 248 F. Supp. 769, 1965 Cust. Ct. LEXIS 2270
CourtUnited States Customs Court
DecidedNovember 22, 1965
DocketReap. Dec. 11106; Entry No. 2141-D, etc.
StatusPublished
Cited by3 cases

This text of 55 Cust. Ct. 693 (Getz Bros. 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
Getz Bros. v. United States, 55 Cust. Ct. 693, 248 F. Supp. 769, 1965 Cust. Ct. LEXIS 2270 (cusc 1965).

Opinion

Wilson, Judge:

In this case, 46 reappraisement appeals were consolidated for trial. The appeals challenge the appraised value of certain Japanese plywood, exported from various Japanese ports during the years 1951, 1958, 1959, 1960, and 1961. By stipulation of the parties, the merchandise involved in the various imports is limited to plywood of the lauan or the sen species in a blend of 50 per centum first quality and 50 per centum second quality in doorskin sizes, (4 inch [694]*694and 4 by 7 or 8 feet, and % inch and 4 by 7 or 8 feet. It was further agreed that where the term “Philippine mahogany” appears that term means the same as “lauan.” The parties also stipulated that lauan and sen plywood are not on the final list and that the proper basis of appraisement for the merchandise covered by all of the appeals is export value, as defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, except as to merchandise covered by R58/8800, which was exported from Japan in March 1957, and which was appraised on the basis of export value, as defined in section 402a (d) of the Tariff Act of 1930, as amended, supra.

The record in this case is voluminous but, in large part, repetitious and cumulative. The plaintiffs introduced some 82 documentary exhibits and the defendant 19 exhibits. The importers called 16 witnesses, and 8 witnesses were called on behalf of the defendant.

The heart of the controversy in all the cases is whether the export value of the involved plywood was properly determined by the Government, which took the prices at which such or similar merchandise was sold or offered for sale at the time of exportation to the United States by certain trading houses which placed orders with manufactures on behalf of American exporters, or whether the export value should have been determined by the price at which such or similar merchandise was sold or offered for sale at the time of exportation to the United States by the mills or manufacturers. If such mills or manufacturers sold or offered for sale at the time of exportation of the merchandise such or similar merchandise freely and to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, for export to the United States, then the export value should have been determined by the prices at which such mills’ or manufacturers’ sales or offers for sale were made.

There is no doubt but that where a manufacturer or producer freely offers his merchandise for sale to all purchasers and under the other conditions and terms specified in the statute, the manufacturer’s price must be taken as the basis for appraisement, and that the price of the dealer who purchases from such manufacturer or producer cannot be used to predicate the establishment of an export value. See S. S. Kresge Co. et al. v. United States, 72 Treas. Dec. 1140, Reap. Dec. 4155, affirmed in United States v. S. S. Kresge Co. et al., 73 Treas. Dec. 1547, Reap. Dec. 4310; affirmed in United States v. S. S. Kresge Co. et al., 26 CCPA 349, C.A.D. 39; R. J. Saunders & Co., Inc. (Perry H. Chipurnoi, Inc.) v. United States, 42 CCPA 55, 59, C.A.D. 570; Melba B. Rodriguez v. United States, 23 Cust. Ct. 296, 300, Reap. Dec. 7752; Romana Fashions, Inc. v. United States, 49 Cust. Ct. 447, 450, Reap. Dec. 10371.

[695]*695The issue is not, as contended by the Government in its brief, whether “statutory export value is represented by sales and offers to sell, (a) 'by plywood manufacturers to Japanese dealers (hereinafter described as trading houses), which purchased the said plywood for unrestricted disposition, or (b) by the trading houses in Japan to all purchasers in the principal markets of Japan in usual wholesale quantities and in the ordinary course of trade for exportation to the United States.” To pose the issue in that form, presupposes that there were no sales made by the mills or manufacturers to anybody except the so-called trading houses. Such an assumption is clearly not warranted, even by the defendant’s own testimony.

There is really no question in this case concerning principal markets or usual wholesale quantities. The evidence clearly shows that the sales were made in the principal markets in Japan; that the prices did not vary according to the quantities sold; and that the unit values of the merchandise remained the same, regardless of the quantity sold in the market. Neither is there any question concerning the cost of containers and coverings, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States. In all cases, whether the merchandise was purchased directly from the manufacturer or through a trading house, it was delivered f .o.b. port in J apan, ready for shipment.

Our first inquiry is whether the mills or manufacturing establishments in J apan that produced and sold the merchandise in question offered such or similar merchandise freely for sale to all purchasers in the ordinary course of trade for export to the United States. Before attempting to answer this question, let us refer to the previous cases involving substantially, if not entirely, the same questions of law and fact as now concern the court.

In the case of United States v. National Carloading Corp., 46 Cust. Ct. 745, A.R.D. 125, the court held that an affidavit by one Ito, the managing director of Nakamura Plywood Co., a milling company, in which the affiant, who was in charge of all domestic and overseas sales for his company, stated that plywood made of lauan Philippine mahogany was freely offered to anyone who cared to buy for export to the United States, at prices which included packing costs and freight, and handling charges to the point of shipment, and that such prices did not vary according to quantity purchased, was sufficient to establish a prima facie case on that point. The affiant’s further statement to the effect that his company freely offered and sold three qualities of lauan plywood at stated prices per thousand square feet, and that a blend of the three qualities was “freely offered * * * to anyone who cared to purchase” or export to the United States “at $69.56 per [696]*696thousand square feet” was held to be a statement of fact and not a mere conclusion of the affiant.

In the National Carloading case, supra, there was evidence (page 748) to the effect that—

While some manufacturers have sold their merchandise for direct export, these instances are exceptional and are stated by the Japan Plywood Exporters Association to constitute less than 20% of the total sales. The ordinary course of trade is for manufacturers to sell to exporters on an FOB shipping port basis. The exporters in turn sell to importers in the United States on the same basis or on a C&F or OIF basis depending on the desires of the importer. The exporters add as their profit a percentage over cost depending on market conditions, usually not less than 2% and frequently considerably more. * * * Generally speaking, the prices of these manufacturers who do sell directly are maintained at about the same level as the prices quoted by exporters.

The trial judge, in the foregoing case, National Carloading Corp. v. United States, 48 Cust. Ct. 531, Reap. Dec.

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Related

Plywood & Door Northern Corp. v. United States
60 Cust. Ct. 700 (U.S. Customs Court, 1968)
United States v. Getz Bros.
55 C.C.P.A. 11 (Customs and Patent Appeals, 1967)
United States v. Getz Bros.
57 Cust. Ct. 750 (U.S. Customs Court, 1966)

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Bluebook (online)
55 Cust. Ct. 693, 248 F. Supp. 769, 1965 Cust. Ct. LEXIS 2270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/getz-bros-v-united-states-cusc-1965.