United States v. Fashion Ribbon Co.

Landis, Judge: This case is before us on application for review of the decision and judgment in Fashion Ribbon Co., Inc. v. United States, 58 Cust. Ct. 737, R.D. 11314, reappraising ribbon novelties imported from Haiti in May 1963. The novelties, in the shape of bows or other ornamental motifs, are used principally to decorate women’s undergarments. On trial below, the parties conceded that, as appraised and claimed, the proper basis for valuation of the ribbon novelties was constructed value, section 402(d), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 70 Stat. 943, T.D. 54165, 19 U.S.C., section 1401a(d). It was so adjudged. No error having been raised, we do not review that part of the judgment below. Constructed value, supra, is defined as follows: (d) Constettcted 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 exporta-tation of the article in the production of which such materials [1016] 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 same general class or kind as the merchandise undergoing appraisement which are made by 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. Appellant (defendant below) alleges that in finding the amount of constructed value, as distinguished from basis, the trial judge otherwise erred on seven counts. The three counts which we deem material, and on which the other four perfunctorily turn, specify that the trial judge erred: 3. In finding and holding that the amounts of general expenses and profit as elements of constructed value may be proved as one element. 4. In not finding and holding that the amounts of general expenses and profit as elements of constructed value must be separately proven. 5. In finding and holding that appellee proved the amounts of general expenses and profit as elements of constructed value. The narrow limits of our review, on the above allegations, take substance from appellant’s contention that, in the case at bar, appellee’s proof offered to establish that both general expenses and profit were determined by taking 30 percent of the known cost of labor for the respective items of merchandise. The trial court held that proof of general expenses and profit expressed in one amount was sufficient to establish these elements. It is from this holding that appellant notes a sharp dissent and submits that general expenses and profit “must be proved as separate items in establishing a value on the basis of constructed value.” (Appellant’s brief, page 6.) A subsidiary issue, tied to appellant’s latter statement, is whether the amount of general expenses and profit is adequately proved of record. The trial judge decided against appellant on both grounds. We affirm the decision and judgment below and have but little to add to the trial judge’s statement that: Under the old law, general expenses and profit were provided for separately in different subdivisions. The Customs Simplification Act of 1956 brought the two components together in a single [1017] subdivision. In view of this action and the interpretation given to the old law, it is evident that Congress did not intend a separate itemization for general expenses and for profit. # í): ijs ‡ Defendant [appellant] claims that the procedure of the manufacturer here in calculating the amount for general expenses and profit by talcing 30 percent of the labor cost is not in accordance with the statute. The statute does not state the manner in which general expenses and profit are to be computed except that they are to be equal to that usually reflected in sales of merchandise of the same general class in the ordinary course of trade and in the usual wholesale quantities. Mr. Sicard stated that 30 percent of the labor cost was the factor actually used and that a markup based on a percentage of labor cost is normal in the production of ribbon novelties in Haiti. hTo evidence to the contrary has been presented. Profit is often expressed in percentages and in Empire Distributors, Successor to Empire Wholesalers v. United States, 30 Cust. Ct. 487, Reap. Dec. 8194, affirmed sub nom. United States v. Empire Distributors, Successor to Empire Wholesalers, 33 Cust. Ct. 568, A.R.D. 47, there was an accounting practice of expressing general expenses as a percentage of direct labor cost. The old law provided for minimum percentages for genera] expenses and for profit. The new law eliminates these percentages, but in bringing together the two elements, there is no logical reason and no statutory provision against expressing the single amount in a percentage, if that is what was actually and usually done. [58 Cust. Ct., at pages 743-744.] Appellant’s argument on the separate treatment of general expenses and profit in normal commercial practice is mere discourse. The legislative history on the Customs Simplification Act of 1956 and amended section 402(d), cited by appellant, is admittedly inconclusive of the point. Section 402(d) does, however, state the items of general expenses and profit as one element of constructive value. To delimit separate proof necessary of the amount of general expenses and the amount of profit would be contrary to what the statute says. Appellant is not “unmindful” that the statute “may be construed as suggesting proof [of general expenses and profit] as one element.” On that score, considering that amended section 402(d) joins two cost items, previously separately stated in section 402(f) of the old law, we think the statute is unambiguous and that the specific language therein is the best evidence of congressional intent. United States v. Border Brokerage Co., 48 CCPA 10, C.A.D. 754. As to the amount found below for general expenses and profit, namely 30 percent, there is nothing in the law that proscribes a percentage figure provided it is the actual amount. United States v. Henry Maier, 21 CCPA 41, 47, T.D. 46378. We next comment on whether the 30 percent is actual and equal to that usually reflected in sales of merchandise of the same general class [1018] or kind. There is no disputing the fact that the manufacturer had used the 30 percent figure for at least eight years prior to the exportation of the ribbon novelties, as the amount necessary to cover his general expenses 'and profit. Eight years is a fairly long time to use the same percentage figure for general expenses and profit. There has to be a time when that percentage figure stopped being “estimated”, if it ever was, and when it is shown, as it is in this record, that the percentage is not out of line with that usually reflected in sales of merchandise of the same general class or kind, we think that as a matter of fact the percentage is “actual”.1 There is no dispute from a lega] standpoint that the figure for general expenses and profit must be actual. The only disagreement is as to a question of fact upon which, in our opinion, the record supports appellee. We also believe that any discussion of whether general expenses and profit are shown of record to be “equal to that usually reflected in sales of merchandise of the same general class or kind”, would overreach the trial judge’s decision on a point which appellant at no time has raised or briefed. The record shows that there were no other manufacturers of ribbon novelties in Haiti. Short of appellant raising issue as to manufacturers in Haiti of merchandise of the same general class or kind, we see no reason why the fact that there were no other manufacturers of ribbon novelties in Haiti should not be accepted as a prima facie showing that there were no manufacturers in Haiti of merchandise of the same general class or kind. We incorporate herein by reference the findings and conclusions of the trial court and affirm the decision thereon. Judgment will be so entered. Footnotes [1] Contrary to tie statement in the dissent that the manufacturer “makes no pretense that his general expenses and profit are anything other than ‘estimated’,” the manufacturer’s sole statement on this point is to the effect that the 30 percent “markup to cover general expenses and profit [is] based upon a percentage of labor [which] is normal in the production of ribbon novelties in Haiti because of the Imown cost of labor, which is always performed on a piecework basis.” [Emphasis added. Exhibit 1.]