United States v. A. U. Morse & Co. Hoyt, Shepston & Sciaroni

(A. R. D. 45) United States v. A. U. Morse & Co. Hoyt, Shepston & Sciaroni Entry No. 193. First Division Appellate Term (Amended decision [A. R. D. 38] June 28, 1954) Warren E. Burger, Assistant Attorney General (Samuel D. Spector, Daniel 1. Auster, and John J. Antus, trial attorneys), for the appellant. Lawrence & Tuttle (Q-eorge R. Tuttle and Charles F. Lawrence of counsel) for the appellees. Before Olivee, Johnson, and Foed, Judges [MAJORITY — Oliver, Chief Judge:] Oliver, Chief Judge: Appellant filed a motion for rehearing in this proceeding, and its supplemental memorandum in support thereof discusses certain phases of the record pertaining to statutory export value, section 402 (d) of the Tariff Act of 1930. In connection therewith, particular reference is made to the Treasury representative’s reports (exhibits 2, 4, and 5, and collective exhibits 3, 6, and 7) which show- — and the evidence contained therein is sufficient to establish as matter of fact- — that while at the time of purchase of the present merchandise the price for export to the United States was £6/10/6 per crate, such export price, at the time of exportation of the merchandise, had advanced to £7/3/6 per crate. The factual situation set forth in appellant’s supplemental memorandum is agreed to in ap-pellee’s brief in response thereto, wherein the concurrence by counsel for appellees is stated in the following language: Appellant has correctly pointed out that although the sheathing felt herein was purchased on March 7, 1945, its exportation was delayed until June 14, 1945; and that during the period of this delay the export value advanced from £6/10/6 per crate to £7/3/6, less nondutiable charges. After a full consideration of the issues discussed by the parties in their supplemental presentation, as hereinabove outlined — and this matter being within the breast of the court' — -we adhere to the holding in our original decision that the foreign market, at the time of exportation of the present merchandise, was a controlled market for such and similar merchandise, and that, therefore, foreign value, as defined in section 402 (c) of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, is not a proper basis for appraisement of the sheathing felt in question. We further adhere to the holding in our original decision that export value, section 402 (d), supra, is the proper basis for appraisement of this sheathing felt, but now amend our original decision and find that the statutory export value of the present merchandise is £7/3/6 per crate of 10 rolls of sheathing felt 25 yards long by 32 inches wide, less nondutiable charges as invoiced. Amended judgment will be rendered accordingly.