Millmaster International, Inc. v. United States

58 Cust. Ct. 711, 1967 Cust. Ct. LEXIS 2394
CourtUnited States Customs Court
DecidedMay 15, 1967
DocketR.D. 11304; Entry No. 69963, etc.
StatusPublished
Cited by5 cases

This text of 58 Cust. Ct. 711 (Millmaster International, 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
Millmaster International, Inc. v. United States, 58 Cust. Ct. 711, 1967 Cust. Ct. LEXIS 2394 (cusc 1967).

Opinion

WilsoN, Judge:

The imported merchandise is an industrial chemical invoiced as “Thiourea chem. pure.” In the 60 reappraisement appeals herein consolidated for purposes of trial, the material was exported from West Germany from time to time during 1961 and 1962.

The manufacturer-exporter will be referred to hereinafter by the abbreviated name of “Degussa.” The plaintiffs will be referred to as Millmaster. The only other producer of thiourea in West Germany, mentioned in plaintiffs’ exhibits 2 and 7, will be designated herein as “Trostberg.”

Thiourea is specified on the final list published by the Secretary of the Treasury in 93 Treas. Dec. 14, T.D. 54521, as required by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165. The value of the imported merchandise must, therefore, be determined under section 402 of the Tariff Act of 1930, or as amended by the Customs Administrative Act of 1938, 74 Treas. Dec. 17, T.D. 49646, and redesignated as “Sec. 402a. Value (AlteRNAtive) ” in the above Customs Simplification Act of 1956.

Appraisement was made at deutsche marks 3.25 per kilo, net, packed, in all appeals, on the basis of foreign value as defined in section 402a(c), infra.

Plaintiffs contend that there was no foreign value as provided under section 402a (c) or export value under section 402a(d) of the aforesaid statutes, that United States value as provided for in section 402a (e) is the proper basis for appraisement, and that said values are set forth in United States dollars for different periods of time in plaintiffs’ exhibit 3.

Defendant contends that plaintiffs have failed to produce substantial evidence showing the nonexistence of either a statutory foreign or export value for both such and similar merchandise. The defendant further argues that the amounts of general expenses and profit asserted under United States value have not been satisfactorily established under the law as set forth in Judson Sheldon International Corporation v. United States, 51 Cust. Ct. 374, Reap. Dec. 10586, affirmed 54 Cust. Ct. 733, A.R.D. 183, and not further appealed.

[713]*713The following statutes must be considered:

Section 402a (c), as amended, supra, reads:

(c) FoeeigN Value. — The foreign value of imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale for home consumption 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, including the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States.

Section 402a (d), as amended, supra, reads:

(d) Export Value. — The export value of imported merchandise shall be the market value or the price, at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale 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 exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States.

Section 402a (e), as amended, supra, reads:

(e) United States Value. — The United States value of imported merchandise shall be the price at which such or similar imported merchandise is freely offered for sale for domestic consumption, packed ready for delivery, in the principal market of the United States to all purchasers, at the time of exportation of the imported merchandise, in the usual wholesale quantities and in the ordinary course of trade, with allowance made for duty, cost of transportation and insurance, and other necessary expenses from the place of shipment to the place of delivery, a commission not exceeding 6 per centum, if any has been paid or contracted to be paid on goods secured otherwise than by purchase, or profits not to exceed 8 per centum and a reasonable allowance for general expenses, not to exceed 8 per centum on purchase goods.

At the trial of this case, counsel for the respective parties entered into a long oral stipulation (B. 4-10). Such portions of this agreement as are germane will be referred to hereinafter. Supplementing the stipulation the importers called one witness and offered in evidence seven exhibits. Defendant offered no evidence.

The stipulation of counsel provides in part that an agreement, exhibit 1, existed during 1961 and 1962 between Degussa and Mill-master granting plaintiffs the exclusive right to import thiourea from [714]*714Degussa; that in said period Degussa did not offer or sell thiourea to any other United States purchaser; that the affidavit of Annemarie Killius, sworn to on August 27,1963, be received as plaintiffs’ exhibit 2 subject to the defendant’s right to object in its brief to admissibility; that plaintiffs claim United States value in the amounts reflected in plaintiffs’ exhibit 3 as the proper value for appraisement; that thiourea manufactured by Degussa, as appears in exhibit 3, was freely offered during 1961 and 1962 by Millmaster to all purchasers in the United States for domestic consumption without restriction of any kind, in the principal market of New York, and the usual wholesale quantity was from 1 bag (net 25 kilos) to less than 2,000 pounds (36 bags) ; that the price in said usual wholesale quantities is as stated in exhibit 3 in the column “U.S. Selling Pkice” for the different periods. Millmaster’s four pricelists covering the involved period were received as plaintiffs’ collective exhibit 4. The prices shown therein for less than 2,000 pounds are the prices shown in exhibit 3 as the selling prices for the various periods. These selling prices are not in dispute and, therefore, need not be further considered.

The stipulation also provides that the figures under the headings “Foreign Inland Freight,” “Ocean Freight,” and “Marine Insurance” in exhibit 3 are the invoiced amounts paid during each indicated period. The figures for “GeNeral Expenses : Operating” in exhibit 3 are derived from Millmaster’s operating statement reflecting its overall operations in the sale of thiourea and five or six other chemicals during each involved period and that such figures are derived by applying to the various United States selling prices, above referred to, a percentage equal to the ratio of “Operating expenses” to the respective “Sales” volumes stated in exhibit 5; that the figures for “Profit” in exhibit 3 are likewise derived by applying to the respective United States selling prices a percentage equal to the ratio of “Net income before taxes” to “Sales” as stated in exhibit 5; that no separate books covering thiourea operations were kept by Millmaster; that the data in exhibit 5 is a summary of the various accounts and books of record maintained by Millmaster covering its overall operations; that defendant disputes the said method by which plaintiffs derive their claimed statutory deductions for general expenses and profit and reserves the right to argue this point in its brief.

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Related

R. J. Saunders & Co. v. United States
70 Cust. Ct. 295 (U.S. Customs Court, 1973)
Millmaster International, Inc. v. United States
61 Cust. Ct. 613 (U.S. Customs Court, 1968)
Luckytex, Ltd. v. United States
60 Cust. Ct. 826 (U.S. Customs Court, 1968)

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Bluebook (online)
58 Cust. Ct. 711, 1967 Cust. Ct. LEXIS 2394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millmaster-international-inc-v-united-states-cusc-1967.