Downing v. United States

Bland, Judge, delivered tbe opinion of the court: This appeal involves our review of the action of the Third Division of the United States Customs Court in two reappraisement cases, which, by a divided court, affirmed the decisions of the single general appraiser. The importations in controversy consisted of two entries of colored cotton crépe of a grade and quality known as matsu (Pine) brand exported from Japan and imported at the port of Boston. The two importations were consolidated and tried [236] T. D. Downing.& Co. entered one of the importations at “yen 9.25 per piece, plus charges shown on the invoice.” The appraiser advanced the merchandise by adding a so-called consumption tax. His appraisal reads as follows: Yen per piece, 9.25, plus 7 per cent Jap. home consumption tax. Add cases, packing, etc. In the second case the French American Import Co. claimed to have made a duress entry; that is, entered under the provisions in the latter part of section 489, Tariff Act of 1922, in order to meet the advance made by the appraiser in the Downing case. In the latter entry the importer claims to have added to his entered value a sum equal to the Japanese tax, which had been added by the appraiser in the Downing case. The appraiser, in appraising the goods in the second importation, used the following language: Yen per piece 10.20. Add 46 sen per piece (tax). Add packing. The importers appealed for reappraisement and both cases were tried together, where both sides were in agreement that the appraiser had added a Japanese tax. The case was tried out before the single general appraiser and before the Third Division of the United States Customs Court as a tax case, and the issue seems to be, although considerably confused, as to whether or not the appraiser properly added a certain Japanese tax. This tax is referred to as a “consumption tax,” as a “textile tax,” and a “Jap. tax.” A 7 per centum tax, a 10 per centum tax, and 46 sen per piece as a tax are mentioned in the testimony and on the official papers. The single general appraiser, now Associate Justice McClelland, tried the consolidated cases and rendered the following decision: These are appeals to reappra'sement against findings of the United States appraiser at the port of Boston on cotton crépe imported from Japan. The record discloses that the appeals are against the appraiser’s addition to the unit value of a Japanese consumption tax. In appeal 12770-A the addition is in the form of 7 per cent; in appeal 40851-A the addition is 46 sen per piece. The contention of the appellants, as expressed by their counsel, is that there is no wholesale market for home consumption of this particular kind or grade of cotton crépe in Japan, but that there is an established export value to the United States therefor, and that inasmuch as there is no home consumption market in Japan for this crépe there can not be, and there is therefore no home consumption tax, and consequently no addition should have been made therefor to these importations. I find from the evidence the following facts: 1. That there is a home consumption wholesale market value of cotton crépe similar and comparable with the merchandise here involved in Japan and that such crépe when sold in usual wholesale quantities in Japan is subject to a home consumption- tax equal to that added in each case by the appraiser. 2. That the appellants have failed to establish by evidence that the values found by the appraiser exceeded the wholesale market values in Japan for like merchandise when sold in usual wholesale quantities for home consumption. [237] 3. That the appellants have not met the burden that rested upon them to overcome by competent evidence the presumption of the correctness to which the findings of the appraiser are entitled. I therefore sustain the appraised value in each case. Importers appealed to the Board of General Appraisers for a review of the decision of the general appraiser, under section 501 of the Tariff Act of 1922, which reads as follows: Sec. 501. Reappbaisement. — The decision of the appraiser shall be final and conclusive upon all parties unless a written appeal for a reappraisement is filed with or mailed to the Board of General Appraisers by the collector within sixty days after the date of the appraiser’s report, or filed by the consignee, or his agent, with the collector within ten days after the date of personal delivery, or, if mailed, the date of mailing of written notice of appraisement to the consignee, his agent, or his attorney. No such appeal filed by the consignee, or his agent, shall be deemed valid unless he has complied with all the provisions of this Act relating to the entry and appraisement of such merchandise. Every such appeal shall be transmitted with the entry and the accompanying papers by the collector to the Board of General Appraisers and shall be assigned to one of the general appraisers, who shall ascertain and return the value of the merchandise and shall give reasonable notice to the importer and to the person designated to represent the Government in such proceedings of the time and place of the hearing, at which the parties and their attorneys shall have an opportunity to introduce evidence and to hear and cross-examine the witnesses of the other party and to inspect all samples and all papers admitted or offered as evidence. In finding such value affidavits of persons whose attendance can not reasonably be had, price lists, catalogues, reports or depositions of consuls, special agents, collectors, appraisers, assistant appraisers, examiners, and other officers of the Government may be considered. Copies of official documents, when certified by an official duly authorized by the Secretary of the Treasury, may be admitted in evidence with the same force and effect as original documents. The decision of the general appraiser, after argument on the part of the interested parties if requested by them or by either of them, shall be final and conclusive upon all parties unless within ten days from the date of the filing of the decision with the collector an application for its review shall be filed with or mailed to said board by the collector or other person authorized by the Secretary of the Treasury, and a copy of such application mailed to the consignee, or his agent or attorney, or filed by the consignee, or his agent or attorney, with the collector, by whom the same shall be forthwith forwarded to the Board of General Appraisers. Every such application shall be assigned by the Board of General Appraisers to a board of three general appraisers, who shall consider the case upon the samples of the merchandise, if there be any, and the record made before the general appraiser, and, after argument on the part of the parties if requested by them or either of them, shall affirm, reverse, or modify the decision of the general appraiser or remand the case to the general appraiser for further proceedings, and shall state its action in a written decision, to be forwarded to the collector, setting forth the facts upon which the finding is based and the reasons therefor. The decision of the Board of General Appraisers shall be final and conclusive upon all parties unless an appeal shall be taken by either party to the Court of Customs Appeals upon a question or questions of law only within the time and in the manner provided by section 198 of an Act entitled “An Act to codify, revise, and amend the laws relating to the judiciary,” approved March 3, 1911. [238] Board 3 of the Board of United States General Appraisers (United States Customs Court, Third Division, when the decision was written) by a divided court affirmed the action of the single general appraiser, from which decision Adamson, Justice, dissented. The majority decision and the dissenting opinion read as follows: These cases are brought before the court on an appeal from the reappraisement made by the associate justice below. The commodity is colored cotton crépe known as matsu (Pine) brand, exported from Japan. The single question involved is as to whether a certain tax should be added to the purchase price in Japan in order to make the dutiable value. That raises also the question of the home market in Japan for this class of goods. The record is quite voluminous. Very able briefs have been filed on both sides. We think there is no question, however, but that similar and comparable merchandise is sold .in the wholesale markets in Japan as found by the court below. There seems to be some confusion with reference to the tax which is added. In one case it is a certain amount of money and in the other a percentage. No issue was made, practically, upon this at the hearing and there is nothing to show the fallacy of the proceeding in adding the different amounts for taxes. We think it is clear that the home market price is higher than the export price and therefore conclude that there is at least substantial ground found in the evidence for the finding of the associate justice below. His decision is therefore affirmed.