
    M. Hagel v. United States
    No. 4456.
    Entry No. 772402.
    Invoice dated Warsaw, Poland, November 6, 1936.
    Entered at New York November 21, 1936.
    (Decided November 22, 1938)
    
      Puckhajer & Rode (John D. Rode of counsel) for the plaintiff.
    
      Webster J. Oliver, Assistant Attorney General (Richard F. Weeks, specials attorney), for the defendant.
   Keefe, Judge:

This reappraisement is brought by reason of advances by the appraiser upon dried mushrooms imported from Poland. The merchandise was invoiced at 6.625 Polish zlotys, packing, inland freight, insurance, and consular fee included. It was entered at 1.25 United States dollars per kilo, f. o. b. Gdynia, and appraised at 8 Polish zlotys net packed, causing an advance in value of 22 per centum.

The purchaser of the mushrooms testified at the trial that he had been engaged in the mushroom business for thirty years, during which time he had handled all types of mushrooms; that the market conditions of mushrooms depend upon the weather and the supply of crop that he is familiar with three or four grades of mushrooms; that, in buying, it is impossible to purchase just one grade; that any given quantity will contain a mixture of large, medium, and small mushrooms of different colors; that the price is fixed according to the looks of the goods; that it takes an expert to buy mushrooms and one should see what he is buying unless he can rely upon his dealer; that he received offers by cable from mushroom dealers in Poland and often goes personally to Europe to purchase his supply; that the mushrooms in question were purchased by cable from Elfman who is the largest dealer of mushrooms in the world and a reliable dealer; that a previous shipment was purchased from Elfman at $1 per kilo and it was passed correct as entered; that he cabled for a better grade at the cheapest price for immediate delivery of 2,000 kilos of Wolyskieh mushrooms; that the exporter replied on October 29, 1936, stating that he would let him have a better grade at $1.25 f. o. b. Gdynia; that he accepted this offer, sending $500 on account, the balance being payable on delivery, and received word that shipment would be made on November 7; that the price appearing on the invoice, although in zlotys rather than in dollars, was the price paid for the merchandise, including charges; that no other sums were paid to Elfman; that he has attempted in former dealings with Elfman to lower his quoted prices but has never succeeded; and that in one instance he was required to pay more because the offer was not accepted within three weeks.

The witness further testified that he had examined every pound of the mushrooms imported herein and found that they consisted of small and large sizes, mixed, some having long stems and others medium stems.

An affidavit of M. Elfman was admitted in evidence wherein it is stated that the freely offered price for this quality of mushrooms in Poland for home consumption or for export, in the usual wholesale quantities and in the ordinary course of trade, was 6.625 zlotys per kilogram.

Upon behalf of the Government there was offered and admitted Treasury Reports Nos. 318/36 dated March2,1937, and 318/36-Bdated March 6, 1937. There is nothing in these reports which in any way sustains the value found by the appraiser, nor do the reports show any sales for home consumption Or for export during the time of the shipment in question. It is indicated, however, by the Treasury representative that the Government of Poland thoroughly checks the export sales of the shipper and that his books must show the prices received for exported mushrooms.

Examiner Donohue testified for the Government that in his examination of the mushrooms herein he determined that they were approximately of the same grade as the mushrooms received by the Russian Mushrooms Co., Inc., from Zylbersztejn of Warsaw in a shipment of September 21, which were invoiced at 6.60 zlotys per kilo and advanced to 7.80 zlotys per kilo. The examiner gave no reason for his advance in value to 7.80 zlotys per kilo. He admitted that the shipper, Elfman, has correspondents all over Poland and has the market conditions within his knowledge so that he is in a position to determine at what prices to sell their merchandise.

It is clear from the evidence submitted that the importer has established that the price of this class of mushrooms in Poland for home consumption or for export is 8.625 zlotys per kilo. The proof submitted has not been successfully rebutted by the Government. I therefore make the following findings of fact:

1. The merchandise consists of Polish mushrooms.

2. The foreign value is the same as the export value.

3. The export value of the mushrooms in question at the time of exportation of such merchandise to the United States, at which such or similar merchandise was freely offered for sale to all purchasers in the principal markets of the country 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 price, 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 was 6.625 Polish zlotys per kilo, packed, less inland freight, insurance, and consular fee.

I therefore find as a matter of law that the dutiable value of the merchandise is as set forth in paragraph 3 of the findings of fact. Judgment will be entered in favor of the plaintiff.  