2 Cust. Ct. 849 | Cust. Ct. | 1939
These are applications filed by the Assistant Attorney General for a review of the decision of the trial court involving a matter of discount disallowed by the appraiser upon handkerchiefs exported from Swatow, China, and upon bedspreads exported from Shanghai, China. The invoices show that 3 per centum discount was deducted from the per se prices of merchandise from Swatow and 2 per centum discount from the per se prices of the merchandise from Shanghai. There is no dispute relative to the invoice prices which represent the export value of the merchandise.
Extensive evidence was submitted and we believe the following statement outlines the facts involved herein:
The importers of these materials purchase in China through commissionaires or compradores, who finance or guarantee all business, or through so-called Number One Chinamen, who guarantee delivery. In buying the merchandise certain commissions are charged the American importers by these commission merchants whom we will call buying agents. The foreign sellers of the merchandise uniformly grant discounts for cash. In the Swatow district the discounts range from 3 to 5 per centum, while in the Shanghai district only 2 per centum for cash is allowed. However, it is seldom that these discounts inure directly to the benefit of the American purchaser. In fact the American purchaser pays his buying agent in China the per se price of the merchandise as invoiced. The proceeds derived from the discount obtained from the sellers of the merchandise are retained in the office of the purchaser’s agent in China, where it is sometimes distributed in whole or in part as a sort of bonus to certain
Upon the evidence submitted, the trial court found that the sole-issue is whether or not the discounts are deductible in finding the value of the merchandise, and that the weight of the evidence establishes that all sellers of such or similar merchandise to that exported from Shanghai grant a 2 .per centum . discount .from the invoice prices, and from Swatow a 3 per centum discount; that the undisputed evidence establishes that the discounts were not returned to the sellers;, and that the disposition of the discount by the agents of the purchasers, was immaterial. The court was further of the opinion that:
Whether this item of 2 per centum in Shanghai and 3 per centum in Swatow be considered as a discount for cash, or whether it be considered as a buying commission, it is properly deductible in arriving at the proper dutiable value of this merchandise, since the evidence shows that these commissionaires are bona fide commissionaires of the importers in this country and, under the law, the receipt by them of this discount or commission does not make it a dutiable item.
Whereupon the trial court held that the proper dutiable values of the merchandise covered by reappraisement 112074-A are the unit invoice values, less 3 per centum discount, plus packing, as invoiced, and that such values in respect to reappraisement 112408-A are the unit invoice values less a discount of 2 per centum, plus packing, as invoiced, and that such values represent the export values of the merchandise.
Upon appeal the Government contends that the trial court erred: First, in finding that it was not concerned with the usual wholesale quantity because of the expression of counsel that the sole issue was the deduction of 2 or 3 per centum discount for the reason that the Government did not expressly waive that necessary element of proof required of an appraising party under section 501, act of 1930, and that, in the absence of evidence to establish a given quantity as the usual-wholesale
From a consideration of the evidence in this case, we are of the opinion that inasmuch as the sellers here consistently grant the discounts in question upon all sales of the merchandise they manufacture, and that the report of the special agent who investigated the wholesale market and reported upon the wholesale sales, confirms that fact and states such sales were in quantities comparable with the quantities appearing upon the invoices, the question.of the usual wholesale quantity does not seem to us to be an issue herein. Counsel for the Government in argument upon appeal to this division of the court also stated:
The sole issue in this case, therefore, is whether or not this two per cent on the importations from Shanghai, which the importer claimed to be part of the buying commission, and the three per cent on the importations from Swatow are deductible in finding the proper appraised value. In other words, was the appraised value, which is the unit invoice, correct, or. was that deduction of two and three per cent respectively proper as being considered as part‘of the’buying commission.'
The question of usual wholesale quantity does not always arise as one of the elements of proof in questions of value coming before this court. In the case of Jenkins v. United States, 25 C. C. P. A. 90, T. D. 49093, the court stated:
Of course, where the price at -which an article is sold does not vary according to quantities sold, no question of usual wholesale quantity can arise, and in such case a single article may sometimes be regarded as a usual wholesale quantity.
Here, it is the uniform practice of the sellers to grant the discounts in question, and as the prices have been found to be correct by the appraiser, the per se prices and the wholesale quantity thereof are not at issue. As a matter of fact the special agent stated that the merchandise in question can be purchased at the same prices and discount in the usual wholesale quantities without the intervention of a com-pradore or purchasing agent.
There is nothing in the record to indicate that the commissionaires and buying agents also act as brokers on behalf of the sellers. The
In the case of Western Sausage & Provision Co., Inc. v. United States, Reap. Dec. 2049, it was held that the market value of merchandise upon which a cash discount was- allowed is the price less such cash discount, notwithstanding that cash was not paid, nor any cash discount actually allowed. The Supreme Court in Arthur v. Goddard, 96 U. S. 145, 24 L. ed. 814, held that where goods were sold for a certain sum less 2 per centum cash discount, and the net price represented the foreign-market value of such goods, the net price was the dutiable value, notwithstanding that the cash discount was not actually allowed. In defining the dutiable value of merchandise the court stated:
The value means the cash value. The price at thirty days’ credit might be different, and the difference would probably be greatly increased by a credit of six months or a year, but the value or cost would still be the same. The difference would be chargeable to the credit, and not to a difference in the value of the goods.
Market value has been defined as the price at which the manufacturer holds his merchandise for sale, the price at which he freely offers it in the market, and the price which he is willing to receive,
After a careful consideration of the testimony and the documentary evidence we are unable to find any error in the decision of the trial court and make' the following findings of fact:
1. That the merchandise consists of Chinese linen handkerchiefs imported from Swatow, China, and cotton lace bedspreads, imported from Shanghai, China.
2. That the export value of the merchandise is higher than the foreign value thereof.
3. That the items of discount were uniformly granted by the sellers of linen handkerchiefs and cotton lace bedspreads in China to all purchasers in the ordinary course of trade in the usual wholesale market for such articles. •
4. That the prices at which such or similar merchandise are freely offered for sale to all purchasers in the principal markets of China from which exported, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such prices, the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States, are, in respect to the linen handkerchiefs from Swatow, China, the per se unit invoice prices, less 3 per centum discount, plus packing; and in respect to the cotton lace'bedspreads, from Shanghai, China, the per se unit invoice prices, less 2 per centum discount, plus packing.
5. That the export value of the merchandise herein is as set forth in paragraph 4 of the findings of fact.
Therefore we conclude as a matter of law:
1. That the dutiable value of the merchandise is represented by the cash value of the merchandise, to wit, the per se unit prices less the invoice discounts.
2. That the commissionaires, through whom the importers purchased and shipped their merchandise, acted solely upon behalf of their principals and in their stead.
The decision and judgment of the trial court is therefore affirmed and judgment will be rendered adjudging the dutiable value of the merchandise herein to be as entered.