
    United States v. May Co.
    No. 4681.
    Invoices dated Nagoya, Japan, August 10, September 15, 16, 1930.
    Entered at Cleveland, Ohio, November 4, October 29, 28, 1930.
    Entry Nos. 1311, 1269, 1250.
    (Decided November 21, 1939)
    
      Webster J. Oliver, Assistant Attorney General (Richard F. Weeks, special attorney), for the plaintiff.
    
      E. D. Howald for the defendant.
   Dallinger, Judge:

These collector’s appeals to reappraisement involve the question of the proper dutiable value of certain decorated earthenware imported from Nagoya, Japan, which was appraised at the entered value thereof. There is no controversy as to the unit value of the merchandise in question, the single issue being the correct amount of one of the deductible items on the invoice, to wit, the shipping charge.

In reappraisement 98565-A the said shipping charge as entered and allowed by the appraiser was 15 sen per cubic foot; in reappraisement. 98566-A it was 25 sen per cubic foot, and in reappraisement 98567-A it was 20 and 25 sen per cubic foot.

Counsel for the Government in his brief filed herein contends that the shipping charge should have been limited in all cases to 9 sen per cubic foot, that being the proper shipping charge for merchandise of this character imported in cases over 7 cubic feet in size.

The only evidence offered by the Government in support of this contention consists of a report of Treasury Attache Martin G. Scott, dated, at Kobe, Japan, October 14, 1930, addressed to the Commissioner of Customs, and marked in evidence herein as Exhibit 1. In this report appears the following statement:

Subject: Packing Charges on Nagoya and Yokkaiehi Porcelain and Earthenware Shipments.
Sir:
* * * * * * *
A number of shippers have been besieging this office for instructions as to how to invoice these shipments. Pending criticisms or instructions from the Department, we are advising them on the basis of such information as is in our files. The important point, as we see it, is that the non-dutiable charges, whether they be termed shipping or what not, be kept down to a maximum of 9 sen on Nagoya, shipments and 8 sfen on Yokkaiehi shipments. If the remainder of the costs and' charges be recognized as dutiable, the revenues will not be affected by the form of invoicing.
The American Commercial Co., Ltd., have never attempted to impose on or deceive this office, and express a willingness to follow any form of invoicing desired, provided only that their competitors are given no advantage denied them. If therefore the form of invoicing they propose to use be not satisfactory to the various appraisers concerned, we would request further instructions in the matter.

Attached to the report is a letter from the American Commercial Co., Ltd., to Martin G. Scott, Treasury attaché, dated at Kobe, October 10, 1930, the pertinent portions of which letter read as follows:

Pertaining to the discussion in company with Mr. Goin regarding the method we should follow in invoicing various case, packing, labor and shipping charges covering shipments of merchandise being shipped' by ourselves to the United States to the accounts of The American Import Company of San Francisco, Messrs. Seller-Lowengart Company of San Francisco and Messrs. M. Seller Company at various Pacific Coast Ports of entry, particularly from Nagoya and Yokkaiehi.
Per your instructions, we are now invoicing porcelain shipments from Nagoya* where these charges total ¥-.45 per C’Ft, as follows:
Case and packing_¥-. 25
Coolie Hire_ -.11
Shipping_ -.09
¥-.45

Also attached to the report is the reply, dated at Kobe, Japan, October 11, 1930, of Treasury Attaché Scott to said letter, the pertinent portion of which reads as follows:

I am in receipt of your letter of October 10, 1930, re case, packing and other charges on Nagoya and Yokkaichi porcelains. You advise that the following method of invoicing is to be followed by you:
Nagoya shipments on cases over 7 cu. ft., where the charge is 45 sen, this figure is to be prorated:
Case and Packing_¥0. 25 per cu. ft.
Coolie Hire_ .11 “
Shipping ______ . 09 “
.45
* * * * * * *
You are advised that the above figures are approximately in line with figures of costs as obtained by this office, and we would suggest that the same be followed on your invoices for the time being.

Upon this record we agree with counsel for the importer, as stated in his brief filed herein, that the Government has failed to support the burden of overcoming the correctness of the appraiser’s action. The fact that Treasury Attaché Scott suggested to another importer that his shipping charge on similar merchandise be limited to 9 sen, and the further fact that this particular importer was willing to comply with the suggestion, is certainly no evidence of what the actual shipping charges were in Japan on merchandise of the class here involved. There is no question of value herein but simply the cost to the importer of the shipping charge which was allowed by the appraiser.

On the record I therefore find that the shipping charge allowed by the appraiser at the port of Cleveland was correct, and that the values found by the appraiser were the dutiable values of the merchandise. Judgment will be rendered accordingly.  