United States v. Randbur Co.

Laweence, Judge: This is an application for review of the decision and judgment of the trial court, reported as Randbur Co. v. United States, 46 Cust. Ct. 646, Reap. Dec. 9962, covering the three [722] appeals for a reappraisement which, were consolidated for purposes of trial and are enumerated in the schedule attached to and made part of the decision herein. The involved merchandise consists of certain cigarette lighters, exported from Japan between September and December 1956, and entered at the port of blew York. The merchandise was appraised at the invoice unit values, packed, plus certain so-called buying commission and other buying charges. The essence of the Government’s application for a review of the decision below is that the court erred in holding that a buying commission did not form part of the dutiable value of the instant merchandise. The evidence, upon which the trial judge based his decision, is contained in the following excerpts from the opinion— The importer-, an individual doing business under the name of Randbur Co., plaintiff herein, testified as follows: * * * the merchandise was bought directly from the maker only through an agent, who has to ship it, who has to deal with us because the maker is incapable to keep up correspondence in English and to go along with us. So we always do all our Japanese business through an agent who we appoint to do this for us. We pay for this special commission, usually between 7 and 10 per cent, all depends what kind of merchandise. In this particular ease I had an agreement with Yoshinaga & Co., who was our agent, to give him 7% per cent for all the dealings of merchandise which they offered us. Support for the witness’ oral testimony appears in an agreement (plaintiff’s exhibit 1) between the foreign exporter and the plaintiff herein. Under the terms of the agreement, the foreign exporter visited Japanese manufacturers and reported regularly to plaintiff concerning conditions in the Japanese market, collecting samples that were submitted to plaintiff, and quoting prices that always included “buying commission and other charges.” The agreement further provides that the foreign exporter, pursuant to instructions from plaintiff, shall place orders with the Japanese manufacturers, inspect the merchandise, and arrange for their exportation. Eor such services, the foreign exporter, as provided in the agreement, “will be entitled to buying commission 8%.” Defendant’s evidence is a report, prepared by the supervising customs attaché in Tokyo, Japan (defendant’s collective exhibit A). Information therein, that is pertinent to the present issue, is to the effect that Yoshinaga & Co., plaintiff’s foreign exporter, is not a manufacturer of cigarette lighters, that said Yoshinaga & Co. acts “as a seller or as a ‘buying agent,’ ” that the ordinary practice of the foreign exporter is to place orders with Japanese manufacturers upon receipt thereof from American importers, and that such an arrangement is not exclusive with any particular American importer. Predicated on tbe weight of evidence, the court below held that the services rendered by the foreign exporter on behalf of appellee were those of a buying agent and that the commission paid to said foreign exporter was a bona -fide buying commission, none of which inures to the manufacturer, and did not form a part of the dutiable [723] value of the cigarette lighters in controversy. Citing United States v. Nelson Bead Co., 42 C.C.P.A. (Customs) 175, C.A.D. 590. Nothing contained in the brief of appellant persuades us to depart from the conclusion reached by the trial judge. Accordingly, we adopt the findings of fact and conclusions of law of the court below and affirm its decision and judgment. Judgment will issue accordingly.