International Fashions v. United States
This text of 545 F.2d 138 (International Fashions v. United States) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This appeal is from the judgment of the United States Customs-Court, 76 Cust. Ct. 92, C.D. 4640, 408 F. Supp. 1386 (1976). The parties agree that appraisement of the imported merchandise was-properly based on export value as defined in section 402(b) of the Tariff Act of 1930, ch. 497, Pub. L. No. 361, 46 Stat. 590, as added by section 2(a) of the Customs Simplification Act of 1956, ch. 887, Pub. L. No. 927, 70 Stat. 943, 19 USC 1401a(b).1 The decisive issue is the propriety of the inclusion of a 5% commission, paid by appellant for certain inspection services, in arriving at the export value. The trial court held that the 5% commission was properly included. We affirm.
Facts
The merchandise in this case consists of ladies’ acrylic knitted sweaters and bouclé capes, manufactured in Hong Kong by Sincere’s Knitting Factory, a partnership, exported therefrom in August 1971, and entered at the port of Los Angeles, California.
Appellant had encountered problems in obtaining saleable merchandise from the various manufacturers it dealt with in Hong Kong, including Sincere’s Knitting Factory. Accordingly, in 1971, appellant entered into an oral agreement with Mr. James Cheung, manager of and a partner in Sincere’s Knitting Factory, for such services as inspecting yam to insure that it was not uneven, watching over the dyeing of the yam to insure that it resulted in the color specified by appellant, weighing the yam to insure that the amount returned from the dyers and knitters was the same as the amount purchased, inspecting the knitting process employed by the knitters, inspecting all knitted pieces to insure that appellant’s specifications had been followed, and finally inspecting the finished garments. In short, appellant was to receive what was termed “a 100% inspection.” For these services appellant paid Cheung a 5% commission on the f.o.b. price of the merchandise.
The merchandise was appraised at f.o.b. unit prices plus the 5% commission. Appellant has challenged only the addition of the commission to the unit prices,
[37]*37Opinion Below
The trial court held that although the separability rule2 might be applicable to this case, appellant could not invoke the rule because there was no evidence presented showing that such or similar merchandise was freely sold or offered for sale to all purchasers for exportation to the United States at a price which did not include the disputed commission. The court also distinguished between what it termed the ‘“quality controlled’ knitwear” of appellant resulting from services performed for the 5% commission and “non-quality controlled merchandise.”
Further, the court concluded that even if appellant had established the applicability of the separability rule, the testimony of Mr. Bill Feldstein, Jr., appellant’s owner-president, showed that the services performed by Cheung were performed prior to the merchandise being in condition, packed ready for shipment ot the United States. Therefore, it held that the 5% commission was an expense includable in determining export value under section 402(b).
OPINION
In appraisement cases the importer must bear the dual burden of proving that the export value established by the appraiser is incorrect and that his claimed value is correct. Minkap of California, Inc. v. United States, 55 CCPA 1, C.A.D. 926 (1967). If the importer fails to carry his burden of proof on either issue, the original appraised value stands. Millmaster International, Inc. v. United States, 57 CCPA 108, C.A.D. 987, 427 F. 2d 811 (1970); Kobe Import Co. v. United States, 42 CCPA 194, C.A.D. 593 (1955).
Appellant contends that “the courts have consistently held that ‘inspection’ of merchandise, whether done before the merchandise is completely manufactured or after such manufacturing, is an activity [38]*38engaged in by the buyer and therefore is not part of dutiable value.” We disagree. All of the cases cited by appellant in support of its position involved inspection services performed after the merchandise had been completely manufactured by the seller.3 Cheung’s inspection service, unlike the conventional final inspection of merchandise before shipment performed by a buyer’s agent, permeated the entire manufacturing process from start to finish.
Appellant’s reliance on Styles for Boys, Inc. v. United States, 62 Cust. Ct. 772, R.D. 11617, 295 F. Supp. 282 (1969), aff’d, 64 Cust Ct. 857, A.R.D. 272 (1970), is misplaced. In that case, which involved constructed value of merchandise,4 the plaintiff attempted to prove that costs of certain asserted supervisory or consulting services (“styling and designing” of ladies’ sweaters) formed part of the constructed value of the goods (i.e., were part of the costs of production and thus dutiable). The Customs Court held only that there was a failure of proof that such asserted services were dutiable, not that they were nondutiable.
The evidence of record amply supports the Customs Court’s finding that the presence or absence of the 5% commission determined whether or not the merchandise appellant received was quality controlled. Appellant’s president testified that before such a quality control operation was instituted, “customer adjustments on the imported merchandise grew to an alarming point.
Because appellant has failed to carry the burden of proof of showing the 5% commission to be nondutiable, it is unnecessary to reach the issue relating to separability.
The judgment of the Customs Court is affirmed.
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Cite This Page — Counsel Stack
545 F.2d 138, 64 C.C.P.A. 35, 1976 CCPA LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-fashions-v-united-states-ccpa-1976.