Meadows Wye & Co. v. United States

64 Cust. Ct. 713, 314 F. Supp. 54, 1970 Cust. Ct. LEXIS 3128
CourtUnited States Customs Court
DecidedMay 28, 1970
DocketR.D. 11706; Entry No. 831895
StatusPublished
Cited by3 cases

This text of 64 Cust. Ct. 713 (Meadows Wye & Co. 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
Meadows Wye & Co. v. United States, 64 Cust. Ct. 713, 314 F. Supp. 54, 1970 Cust. Ct. LEXIS 3128 (cusc 1970).

Opinion

WatsoN, Judge:

This appeal for reappraisement involves importations of certain cosmetic preparations, exported from France on or about November 2,1961 and entered by the plaintiff (customs broker) at the port of New York. The ultimate consignee of the merchandise was Jean d’Albret Division of Warner-Lambert Pharmaceutical Corporation, 681 Fifth Avenue, New York City.

The involved merchandise is not enumerated in the “Final List” T.D. 54521. It was appraised upon the basis of “Constructed Value”, as defined in section 402(d) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, at the unit invoice value in French francs, less 25 percent, plus packing. Plaintiff does not dispute that “Constructed Value” is the proper basis of dutiable value, but contends that the unit values found by the appraiser do not represent the constructed values of the involved items; and that the correct constructed value of each item of merchandise is that set forth in the affidavit of André Marc Grange, vice-president of Jean d’Albret, manufacturer and seller of the imported materials, admitted in evidence as exhibit 1.

Section 402(d) of the Tariff Act of 1930, as amended 'by the Customs Simplification Act of 1956, provides:

(d) Constructed Value. — For the purposes of this section, the constructed value of imported merchandise shall be the sum of—
(1) the cost of materials (exclusive of any internal tax applicable in the country of exportation directly to such materials or their disposition, but remitted or refunded upon the exportation of the article in the production of which such materials are used) and of fabrication or other processing of any kind employed in producing such or similar merchandise, at a time preceding the date of exportation of the merchandise undergoing appraisement which would ordinarily permit the production of that particular merchandise in the ordinary course of business;
(2) an amount for general expenses and profit equal to that usually reflected in sales of merchandise of the sarnie generad class [715]*715or hind as the merchandise undergoing appraisement which are 'made Toy producers in the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for shipment to the United States; and
(3) the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the merchandise undergoing appraisement in condition, packed ready for shipment to the United States. [Emphasis added.]

The record consists of two exhibits, the official papers, and the testimony of one witness for the plaintiff.

The same plaintiff was before the court in an appeal for reappraisement of identical merchandise in Meadows Wye & Co., Inc. v. United States, 58 Cust. Ct. 746, R.D. 11316 (1967). Judge Beckworth there held that the plaintiff had not met its burden to prove the claimed values, in that plaintiff had not shown the “general expenses” and “profit” usually added by other producers in France of the same class or kind of merchandise, as required by section 402(d) (2) of the Tariff Act of 1930, as amended.

In the Meadows Wye case (R.D. 11316), supra, the court, page 751, stated:

Statements that the manufacturer had no way to know what the general expenses and profit usually added by other manufacturers were, as they were business secrets, without any showing of a diligent effort to obtain information have been held insufficient, as have statements regarding the cost accounting practices of competitor manufacturers which were founded upon the opinion of the affiant. [Cases cited.]

It was indicated by the court therein that plaintiff could sustain its burden of proof if it established either the general expenses and profit usually added 'by other producers of merchandise or that diligent but unsuccessful efforts were made to ascertain the same. It appears that in the Meadows case, supra, there were no such efforts. In the case at bar, plaintiff has introduced the affidavit (exhibit 1) of Mr. Grange to establish such “diligent but unsuccessful efforts”.

The affiant in exhibit 1 stated in part as follows:

* * * The products involved are all cosmetic preparations typical of those his company has sold to the Jean D’Albret Division of Warner-Lambert in the past as well as at the present time; and that he was thoroughly familiar with the cost records maintained by his company and had consulted such records which are maintained in the regular course of business.

Mr. Grange further stated that the cost of materials and fabrication, “set forth below in U.S. currency” were the actual costs incurred in the manufacture of each particular product during the period immediately prior to the exportation of each shipment, required to manufac[716]*716ture same. The affidavit sets forth (exhibit 1, page 2) amounts covering “Cost of Materials & Fabrication”, “General Overhead Expense & Profit”, and “Cost of Containers & Packing” claimed as the proper values of the imported merchandise. The total claimed values of the imported merchandise are itemized, but general expenses and profit are not shown separately. The affiant further stated (exhibit 1, page 2) :

* * * The amounts shown under the heading “General Expenses and Profit” represent 56% percentage of the cost of materials and direct labor applied to the material, this percentage having been calculated under my direction on all of the sales of cosmetic materials of the same general class or kind that have been exported to the United States during all of the years that my company has been exporting such merchandise to the United States. The aforesaid percentage addition for general expense and profit has not varied during the years that my company has been exporting to the United States. * * *

At page 3 of exhibit 1, Mr. Grange stated:

The price at which each of the above products was sold for export to the United States does not always equal the total of the cost of material, labor, overhead, and profit, because of the fact that there are slight variations in profit on the many different items of merchandise of the same class or kind which have been sold for export to the United States.

Mr. Grange further stated that during the year 1961 there were three companies in France manufacturing, for exportation to the United States, cosmetics of the same general class or kind as those exported by his company during those years. The three companies were identified as Lancome, Stendhal, and Payot. The affiant stated that he had no knowledge of the general expenses and profit of those companies, indicating that “Such information is closely guarded business secret.” It appears that Mr. Grange, in October 1967, addressed communications to the other companies requesting they supply him with the amounts for general expenses and profit in connection with the sale of their cosmetic products. Separate statistics on general expenses and profit were not requested by Mr. Grange. Only one reply was received, which was from Lancome. Exhibit 1-A is an English translation of a letter in French from Lancome relative to the request by Mr.

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Bluebook (online)
64 Cust. Ct. 713, 314 F. Supp. 54, 1970 Cust. Ct. LEXIS 3128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meadows-wye-co-v-united-states-cusc-1970.