
    Sunshine Mushroom Imptg. Corp. v. United States
    No. 4457.
    Entry Nos. 54053, 62667.
    Invoices dated Warsaw, Poland, November 17, 1936, January 27, 1937.
    Entered at New York December 3, 1936, February 19, 1937.
    (Decided November 23, 1938)
    
      Puckhafer & Rode (John D. Rode of counsel) for the plaintiff.
    
      Webster J. Oliver, Assistant Attorney General (Richard F. Weeks, special attorney), for the defendant.
   Keefe, Judge:

These reappraisements are brought by reason of advances by the appraiser upon dried mushroom roots imported from Poland. The merchandise was invoiced at 2 Polish zlotys' per kilo, including packing, inland freight, insurance, and consular fee. It was entered less the cost of freight, insurance, and consular fee. The merchandise was appraised at 2.50 Polish zlotys per kilo, net packed, resulting in a 35 per centum advance in value.

At the trial, one Benjamin Worby, president of the Mushroom Importers Institute and formerly secretary of the plaintiff company testified that he had been in the mushroom business for nineteen years and was one of the largest importers in the United States; that he had made purchases of mushrooms in Poland, Germany, and Latvia and for years had dealt with Bracia Elfman, the exporter of the mushrooms in question; and that Elfman was one of the largest concerns abroad dealing in mushrooms. He further testified that there are about fifteen grades of dried mushrooms; that the prices thereof in Poland vary according to the time of year and often fluctuate from day to day; and that in buying mushrooms he visits the large dealers in Warsaw and Wilno, examining the merchandise and comparing the prices, and -thereafter he makes his purchases, taking the quantity from each one that is suitable to him at the prices offered.

Mr. Worby also testified that the mushroom roots or stems covered by reappraisement 120560-A are much cheaper than the leaf, known as the button or top, and that the roots seldom vary much in grade; that in respect to this shipment he received a radiogram from Elfman on October 31, 1936, offering 1,000 kilos of roots at 2 zlotys per kilo, f. o. b. Gdynia; that before accepting he cabled other dealers in Poland and received offers at about the same prices; and that he accepted Elfman’s offer, cabling him to ship immediately 1,000 kilos of roots (not mixed) at 2 zlotys per kilo, f. o. b. Gdynia, c. o. d. bank draft. In reply thereto he stated hé received a cable from Elfman that the shipment would leave Poland on November 16; that the roots were paid for at 2 zlotys per kilo as invoiced upon receipt of the merchandise and nothing more was remitted therefor. His testimony in respect to reappraisement 120562-A was to the effect that a radiogram inquiry was made by the plaintiff of Elfman in January 1937 concerning the price of roots and a reply received offering roots at 2 zlotys f. o. b. Riga; that the offer was accepted and the invoice price, representing the total purchase price, was paid for by bank draft. Copies of the radiograms and checks made payable to the bank were offered and admitted in evidence to substantiate the assertions of the plaintiff.

An affidavit of the shipper, M. Elfman, was offered and admitted in evidence. Therein the shipper swore that at the time of shipment of the roots in question mushroom roots were freely offered for sale by him to all purchasers either for home consumption or for export to foreign countries at 2 zlotys per kilo, including the cost of all containers or coverings; that the market price in Poland for dried mushroom roots varies according to tbe size of the crop, the quality of the roots, the demand and the prospects of a new crop.

At the conclusion of plaintiff's case, the Government offered and introduced in evidence reports of Treasury Representative Charles Kruszewski. Report 318/36 dated March 2, 1937, has reference to shipments of mushrooms between August 26, 1936, and October 23, 1936, to the plaintiff herein, and to M. Hagel on September 24 and November 6, 1936, and to inland sales made between June 18 and September 22, 1936. As shown by the reports, exports are very thoroughly checked by the Government of Poland because of the foreign exchange control and frequent visits are made to exporters by Polish revenue officers to find out whether or not additional payments were received for exported goods. The shipments to the United States, above referred to, fail to disclose any unit prices, the totals only being noted. The terms of delivery are given as f. o. b. Gdynia, cost of packing, inland freight, and consular fee included in the price. On the basis of the shipper’s inland sales the Treasury representative made approximate price comparisons, the export price of roots being 2.75 zlotys per kilo and the inland price 2.75 to 3 zlotys per kilo. In inland sales the mushrooms are delivered f. o. b. destination. The report 318/36-B made on March 6, 1937, concerned interviews with N. Czesno and J. Mandelsztam of Wilno, Poland, relative to shipments to Bader & Judelovitz of New York. Here it was shown that the New York firm requested the exporters in Wilno to purchase mushrooms for them. The transactions were more in the nature of consignments to the importers and the buying commissions were fictitious. The exporter’s books showed that the roots shipped October 16, 1936, were entered at 2.35 zlotys per kilo, plus packing and other expenses; and that on October 19 roots were entered in the books at 1.90 zlotys per kilo, plus packing and other expenses. The mushrooms entering into the transactions with Bader were purchased from numerous mushroom peddlers and upon the basis of these purchases a unit price was arrived at with Bader. Referring to the foregoing report of sales, it will be noted that the exporters mentioned therein are not regular mushroom dealers, being engaged in the bristles and fur business. Obviously, these transactions have no bearing upon the market value of mushrooms on the dates of shipments of the roots here in question.

Prom a consideration of the reports of the Treasury representative it is obvious that the books of the exporter must be kept so as to accurately show the prices he received for mushrooms. It is also clear that prices fluctuate according to the supply and demand. I can see no reason why the inland sales of roots consummated between June 18 and September 22 would have any bearing upon mushrooms offered and shipped in November or in January. To my mind these sales are entirely too remote, in view of the fact that prices fluctuate according to the time of year and very often the prices change from day to day. The shipper testified that, upon the dates of shipment herein, mushroom roots were freely offered for sale either for home consumption or for export at a price of 2 zlotys per kilo, including packing and f. o. b. charges. This evidence has not been refuted by anything offered by the Government.

I therefore make the following findings of fact:

1. The merchandise consists of Polish mushroom roots.

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

3. The export value of the mushroom roots 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 2 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.  