United States v. Semon Bache & Co.

Kincheloe, Judge: These appeals to reappraisement involve the proper dutiable value of certain gauge glasses, known as the Eureka and the Hercules qualities, imported from England in two shipments, one of which was made in April, 1935, and the other in October, 1935. Entry was made of the Eureka quality at various unit prices, less discounts of 10 per centum, 10 per centum, and 10 per centum, which, it is conceded by the respective parties, is the equivalent of the foreign manufacturer’s list prices less 80 per centum. The Hercules quality was entered at various unit prices less discounts of 75 per centum, less 10 per centum less 2){ per centum. The merchandise was appraised at the foreign manufacturer’s list prices, less 50 per centum discount, less 2% per centum cash discount, less, as to the Eureka quality, 1 pence per dozen pieces for cost of fusing ends. The instant cases have been the subject of previous litigation both in this court and in the Court of Customs and Patent Appeals. They were originally tried in this court before the single judge, who found that the entered values represented the proper dutiable values for the merchandise (Reap. Dec. 3951). An application for review of said judgment was filed by the Government, and this division in its decision reported in Reap. Dec. 4039, affirmed the judgment of the single judge. In said decision (Reap. Dec. 4039), we held that 500 feet or more of the Hercules quality, and 1,000 feet or more of the Eureka, were the usual wholesale quantities for the respective qualities, [596] and in reaching that conclusion we accepted the expert testimony of importer’s witnesses, Tomey and Sobel, wbo bad had years of experience in buying and selling in the trade the qualities of gauge glasses in question, and whom we considered to be thoroughly qualified to present such testimony on the question of a usual wholesale quantity of such or similar merchandise. In our determination of the issues in said decision, we regarded records of sales of the Eureka quality in quantities less than 1,000 feet and of the Hercules in quantities less than 500 feet of no probative value since they did not reflect, in view of the testimony of importer’s said witnesses, sales in wholesale quantities of such merchandise. The Government appealed said judgment of this division to the Court of Customs and Patent Appeals, and in its decision in United States v. Semon Bache & Co. (25 C. C. P. A. 387, T. D. 49466), the court held in substance that there was no evidence of record to establish that the sales to retailers for resale were not sales made in the ordinary course of trade; and that there was no evidence of record to establish that such sales and sales to other purchasers in quantities of less than 1,000 feet of the Eureka quality, and less than 500 feet of the Hercules quality, were not sales in wholesale quantities except mere assertions by plaintiff’s witnesses which were mere conclusions based upon facts appearing of record, and therefore should not have been given any weight by this court in determining the usual wholesale quantity of the merchandise in question in the ordinary course of trade in England. Accordingly, the appellate court reversed the judgment of this court and remanded the cases “for a reconsideration of the issues on the record as made and in accordance with the views herein expressed.” When the cases came before us on remand, we again very exhaustively reviewed all of the evidence offered by the importer and the Government, and in our decision and judgment reported in Reap. Dec. 4475, we adhered to the findings made in our previous decision, Reap. Dec. 4039. The appellate court in its opinion in United States v. Semon Bache & Co., 27 C. C. P. A., C. A. D. 67, followed its earlier decision involving the instant cases, T. D. 49466, supra, and again reversed the judgment of this court and remanded the cases “for a reconsideration of the issues on the record as originally made and in accordance with the views expressed in our decision of February 28, 1938, supra,” and respectfully declined to reconsider the record as made. We have outlined the proceedings heretofore had in these appeals to reappraisement for the purpose of setting forth and emphasizing our views, which we have consistently maintained throughout this entire litigation, and which we still believe to be a proper determina [597] tion of tbe issues presented herein. We based our conclusions that the usual wholesale quantity of the Eureka quality was at least 1,000 feet and the Hercules at least 500 feet, largely, if not entirely, on the testimony of importers’ witnesses, who testified unequivocably that sales of lesser quantities of the respective qualities, that is less than 1,000 feet of Eureka and less than 500 feet of Hercules, were not sales in wholesale quantities of such merchandise. It was our opinion then, as it is now, that the oral testimony of importers’ witness, Sobel, and the statements of importers’ witness, Tomey, contained in his affidavits, Collective Exhibits 1 and 2, are of sufficient probative value to establish that the entered values of the instant merchandise correctly represent the dutiable values thereof. However, in view of the fact that our appellate court in its second opinion in this matter, C. A. D. 67, supra, respectfully declined to reconsider the record as made, and further, in view of the fact that in its first opinion, T. D. 49466, supra, said court held that there was no evidence of record to establish that the sales to retailers for resale were not sales made in the ordinary course of trade, and that there was no evidence of record to establish that such sales and sales to other purchasers in quantities of less than 1,000 feet of the Eureka quality, and less than 500 feet of the Hercules quality were not sales in wholesale quantities except mere assertions of plaintiff’s witnesses, which, in its judgment, were mere conclusions based upon facts appearing of record, and therefore should not have been given any weight by this court in determining the usual wholesale quantity of the merchandise in question in the ordinary course of trade in England, we are, therefore, at this time, considering the questions presented by the instant appeals solely in the light of the views expressed hy said court in its opinion, T. D. 49466, supra. In said opinion, the Court of Customs and Patent Appeals states the issue before us as follows: It is agreed that the foreign values are the dutiable values of the merchandise. There is no dispute respecting the correctness of the manufacturer’s unit list prices in the foreign market, and the sole issue before the courts below was as to the discounts which should be allowed from the manufacturer’s list prices in order to make foreign values. The proper determination of said issue involves ascertaining the usual wholesale quantities of the two qualities of gauge glasses under consideration, as such statutory phrase has been applied in finding foreign value within the definition of such value as set forth in section 402 (c) of the Tariff Act of 1930. As judicially interpreted, usual wholesale quantities of a commodity are the wholesale quantities in which a major portion of sales or offers for sale of such commodity are made. United States v. Richard, 15 Ct. Cust. Appls. 143, [598] T. D. 42216; Pleissner v. United States, 16 Ct. Cust. Appls. 507, T. D. 43237; United States v. Minkus, 21 C. C. P. A. 382, T. D. 46912; Goldmark v. United States, 22 C. C. P. A. 358, T. D. 47378. There are included in the record before us records of sales of both qualities of gauge glasses involved herein. Attached to the affidavit (Collective Exhibit 1) of the importers’ witness, Tomey, is a list of 708 sales of the Eureka quality made during the months of September, October, and November, 1934, to the various classes of purchasers referred to herein, to wit, small users, retailers, wholesalers, and large users. Attached to the affidavit (Collective Exhibit 2) of said witness is a list of 419 sales of the Hercules quality made during the same period to the same classes of purchasers. Both of said lists of sales were also included as part of the special agent’s report which was offered in evidence by the Government at the trial below and admitted as Collective Exhibit 5. Additional reports of sales of both of said qualities of gauge glasses are also incorporated in the special agent’s report which was offered by the Government at the trial below and admitted in evidence as Collective Exhibit 3. Said report contains records of 20 sales of the Eureka quality covered by invoices dated October, November, and December, 1933, and January, 1934; and 11 sales of Hercules quality covered by invoices dated October and November, 1933. We have completely analyzed all of said records of sales, attached to and made part of the above-mentioned exhibits, and we are unable to find therefrom any support for the dutiable values claimed by the importer. On the basis of the present record, as we are required to consider it under the mandate of our appellate court, it is our opinion that the evidence herein is wholly insufficient to overcome the presumption of correctness attached to the dutiable values for each of the qualities of gauge glasses in question as found by the appraiser. We therefore hold that the proper dutiable values of the Eureka quality and the Hercules quality of gauge glasses involved herein are those found by the appraiser. It will be borne in mind that following the mandate of our appellate court our conclusion herein has been reached without giving any weight, either to the oral testimony of importers’ witness, Sobel, or to the statements contained in the affidavits offered by the importers’ witness, Tomey, relating to the usual wholesale quantities of the instant merchandise. Nor do the statements contained in the special agent’s reports introduced by the Government and received in evidence as Exhibits 4, 5, and 6, have any probative value so far as this case is concerned. In the light of the reasoning applied by our appellate court to the testimony of importer’s witnesses, Sobel and Tomey, with respect to the usual wholesale quantity of each of the qualities of [599] gauge glasses in question, it is our judgment that the statements contained in the special agent’s report, which was offered by the Government at the trial below and admitted in evidence as Collective Exhibit 3, relative to the usual wholesale quantities of the instant merchandise, are entitled to no probative value, and accordingly, our conclusion herein has been reached, also, without giving any weight to such statements contained in said exhibit. So, we repeat that we have carefully considered each of said Exhibits 3, 4, 5, and 6 and the lists of all sales attached to Collective Exhibits 1 and 2 and Exhibits 3 and 5, and on the basis of the entire record, as we have considered it, we find the following facts: (1). That the merchandise covered by these appeals to reappraisement consists of certain gauge glasses, known as the Eureka and the Hercules qualities, imported from England. (2). That the proper basis of appraisement for such merchandise is foreign value as such value is defined in section 402 (c) of the Tariff Act of 1930, and that there is no export value for either of said qualities, or if so, it is not higher than the foreign value. (3). That the correct dutiable foreign values of such merchandise are the values found by the appraiser. Accordingly, we hold as matter of law that the correct dutiable foreign values of the qualities of gauge glasses in question, known as the Eureka quality and the Hercules, are the values found by the appraiser as set forth in finding of fact (3). The judgment of the lower court is therefore reversed and judgment will be rendered accordingly.