
    M. Hagel v. United States
    No. 4691.
    Invoice dated Warsaw, Poland, September 23, 1936
    Certified September 24, 1936.
    Entered at New York October 7, 1936.
    Entry No. 747045.
    (Decided December 15, 1939)
    
      Puckhafer, Bode & Bode (John D. Bode of counsel) for the plaintiff.
    
      Webster J. Oliver, Assistant Attorney General (William J. Vitale, special attorney) for the defendant.
   Evans, Judge:

This is an appeal from a finding of value made by the appraiser at the port of New York upon an importation of dried mushrooms the product of Poland. They were invoiced at 6 zlotys per kilo and were appraised at 6% zlotys per kilo, net packed. The evidence shows that the principal market in Poland for this class of product was Warsaw and that the exporter of the instant merchandise is the largest dealer in dried mushrooms in the world.

The testimony further shows that this merchandise was purchased on an offer and counter offer made by cable. The plaintiff produced record testimony to show that the invoice price was the actual price paid therefor, that the usual wholesale quantity consisted of “from one case up,” and that 10 or 27 cases could be purchased at the same price as one case, in other words, that there is no lower price when purchased in larger quantities. The importer also submitted an affidavit by a member of the exporting firm familiar with the mushroom market in that country through an experience of over 20 years in that line of business. The affiant swore that the exporting firm on or about September 23, 1936 — ■

freely offered for sale to all purchasers in Warsaw in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States, mushrooms of the same kind and grade as the above mentioned shipment to M. Hagel at a price of 6 zlotys per kilo, including freight to Gdynia, the cost of all containers and coverings of whatever nature, insurance, and consular fee; that mushrooms of the same kind and grade as the above mentioned shipment to M. Hagel are sold for home consumption, for export to countries other than the United States, and for export to the United States; that on or about September 23, 1936, the price at which his firm freely offered for sale to all purchasers in Warsaw in the usual wholesale quantities and in the ordinary course of trade, including 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, mushrooms of the same kind and grade as the above mentioned shipment, to M. Hagel, was no higher.

It further appeared from this affidavit that the market price in Poland for mushrooms varies according to the size of the crop, the demand, and the quality and grade.

The Government offered, nothing in rebuttal.

At the close of the testimony the Government submitted a motion to dismiss for failure to comply with the statute in that the purchase was made in United States currency whereas the invoice is made out in the currency of Poland. However, in its brief it abandoned such motion and the same is hereby overruled.

Based upon the testimony in the case the court finds that the usual wholesale quantity of these dried mushrooms in Warsaw, the principal market, was one case or more. Further, that the freely offered for sale price for export to the United States was'6 zlotys per kilo, packed, less freight to Gdynia, insurance, and consular fee as invoiced, and that the foreign value was no higher.

The court therefore finds the dutiable value of this merchandise to be the export value as defined in section 402 (d) of the Tariff Act of 1930, at 6 zlotys per kilo, packed, less freight to Gdynia, insurance, and consular fee as invoiced.

Judgment will be rendered accordingly. It is so ordered.  