
    (Reap. Dec. 9178)
    Bluefries New York, Inc. v. United States
    Entry No. 841028.
    (Decided June 27, 1958)
    
      Barnes, Richardson & Colburn for the plaintiff.
    
      George Cochran Doub, Assistant Attorney General, for the defendant.
   DoNLON, Judge:

This appeal for reappraisement is submitted for decision upon the following stipulation by counsel for the parties:

IT IS STIPULATED AND AGREED that

1. The merchandise covered by the above-entitled appeal for reappraisement consists of orange milk bars exported from Holland, the same in all material respects as those in Bluefries New York, Inc. v. United States, Reap. Dec. 8470, wherein it was held that cost of production as defined in Sec. 402 (f), Tariff Act of 1930, was the proper basis of value.
2. The record in said Reap. Dec. 8470 may be incorporated herein.
3. At the time of exportation of the merchandise involved in the above-entitled appeal for reappraisement, there was no foreign value or export value or United States value for such or similar merchandise as defined in Sec. 402, Tariff Act of 1930 as amended, and the cost of production is therefore the proper basis of value.
4. The cost of production, as defined in Sec. 402 (f), (1), (2), (3) and (4) of the Tariff Act of 1930, for the said orange milk bars is 104.34 Netherlands Guilder per carton and is limited to the orange milk bars, and abandoned as to all other items.

The stipulation is not acceptable as stipulation of an issue of law, namely, that cost of production is the proper basis of appraisement of this merchandise. However, inasmuch as the incorporated case is before me and in it the record shows facts on which the court there held that cost of production is such basis, the error in this stipulation does not leave the record so defective as to make impossible a decision on the merits.

Accepting the stipulation only as an agreed statement of facts, and on the record before me, including the record in the incorporated case, and on authority of the decision therein, I find and hold that cost of production, as defined in section 402 (f) of the Tariff Act of 1930, is the proper basis for determining value of the merchandise orange milk bars described in the invoice and entry covered by this appeal, and that such cost of production value is 104.34 Netherland guilders per carton.

The appeal is dismissed as to all other merchandise.

Judgment will be entered accordingly.  