Home/U.S. Customs Court/Klingerit, Inc. v. United States

Klingerit, Inc. v. United States

10 Cust. Ct. 526, 1943 Cust. Ct. LEXIS 1314
CourtUnited States Customs Court
DecidedJanuary 29, 1943
DocketNo. 5803; Entry No. 17874, etc.
StatusPublished

This text of 10 Cust. Ct. 526 (Klingerit, Inc. 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
Klingerit, Inc. v. United States, 10 Cust. Ct. 526, 1943 Cust. Ct. LEXIS 1314 (cusc 1943).

Opinion

Walker, Judge:

These are appeals to reappraisement taken by the importer from values found by the United States appraiser at the port of New York on certain products made of asbestos which were imported through that port during the period from September 26, 1938, to February 24, 1942.

Five types of articles are involved, some in various sizes, which may be enumerated by description and code number as follows:

Klingerit jointing sheets #601
Klingerit Oilit sheets #701
Klingerit jointing sheets #1000
Klingerit valve rings #642
Klingerit packing sleeves '#643

Certain of the cases before me are test cases, in which the merchandise was apparently entered'at the prices invoiced, which represented, according to plaintiff’s witness Strahman, secretary of the plaintiff corporation, the exact prices paid. In all of the other cases duress-certificates were filed and entry was made at values calculated to> meet the advances made by the appraiser in the test cases. There is no' dispute that foreign value, as that value is defined in section 402 (c> of the Tariff Act of 1930, as amended by section 8 of the Customs-Administrative Act of 1938, T. D. 49646, is the correct basis of value of the merchandise involved.

It appears that the plaintiff-corporation, which, notwithstanding-the similarity of names, maintains with the exporter, Richard Klinger,. Ltd., of Kent, England, a relationship only of buyer and seller, is the sole distributor of the products of the latter in the United States, and as such enjoyed some advantage in the price at which it received the products of the seller. Plaintiff concedes that the prices to it “as the sole distributor of the merchandise in the United States are lower than those at which the articles are offered for sale in the home-[527]*527market.” It is not, therefore, contended that the per se invoiced and entered prices in the test cases represent the correct foreign values, but it is conceded, in fact, “that with one exception [Klingerit Oilit Sheets #701] the per se prices returned by the appraiser are correct,” the dispute being as to the discounts from such per se prices which should be allowed. As to the Klingerit Oilit sheets #701, the appraiser found a per se price of 4 shillings per pound, which the plaintiff claims should he 3 shillings 6 pence per pound.

A cash discount of 2% per centum from such per se prices was allowed by the appraiser in all instances, and the correctness of this is agreed to by the plaintiff. Plaintiff, however, contends that a further discount of as much as 50 per centum in some instances should have been allowed.

The evidence offered on behalf of the plaintiff consists of the testimony of Theodore Strahmaii, Jr., who identified himself as secretary of the plaintiff-corporation, and an affidavit, received in evidence as exhibit 1, executed before the United States vice consul at London, England, by one William Ernest Hoes, who states therein that he is a director of the exporting firm.

An analysis of the testimony of Mr. Strahman shows that he gave no evidence which might be considered to have any weight insofar as the foreign market value of the merchandise in question is concerned, and, in fact, he admitted on cross-examination that he had no personal knowledge of the prices at which the items in question wore sold forborne consumption.

Turning, therefore, to a consideration of the affidavit, exhibit 1, I find that in the first paragraph thereof Mr. Hoes identifies himself, and in the second paragraph he states that as a director of the exporting firm he “is thoroughly familiar with the products manufactured and sold by said Richard Klinger, Ltd., and the prices paid therefor,” and particularly with the merchandise covered by certain enumerated invoices involved in this case.

Paragraphs 3,4, and 5 of the affidavit, and certain invoices appended thereto as exhibits, do not cast any light on the controversy herein, as they relate only to the prices charged by Richard Klinger, Ltd., to its sole agents in the British Isles and throughout the world, and do not purport to indicate anything with regard to the price at which such merchandise was freely offered for sale for home consumption to all purchasers within the meaning of section 402 (c) of the Tariff Act of 1930, supra.

Paragraph 6 of the affidavit reads as follows:

(6) That the said Richard Klinger Limited issued a price list of such merchandise for sale in the principal markets of Great Britain from which it has been, and is, a practice, and specifically during the period covering the shipment of merchandise covered by the respective consular invoices, to allow varying dis[528]*528counts dependent upon the status of their customers and the quantities pur

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10 Cust. Ct. 526, 1943 Cust. Ct. LEXIS 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klingerit-inc-v-united-states-cusc-1943.