
    United States v. Montgomery Ward & Co., Inc.
    No. 4714.
    Entry No. A70317.
    'Invoice dated Graslitz, Czechoslovakia, December 17, 1930.
    Certified January 18, 1937.
    Entered at Albany, N. Y., February 24, 1937.
    (Decided January 30, 1940)
    
      Webster J. Oliver, Assistant Attorney General {Samuel D. Specter, special attorney), for the plaintiff.
    
      O. W. R. Wallace {Barnes, Richardson & Colburn, Joseph Schwartz of counsel) for the defendant.
   Keefe, Judge:

This appeal for a reappraisement was brought by the collector against the findings of value of the appraiser. The merchandise was appraised at the invoiced and entered prices, and consists of various brass band instruments, ordered from the manufacturer on September 22, 1936, and shipped from Graslitz, Czechoslovakia, on December 17, 1936, although the consular invoice shows that the merchandise was shipped from Berlin, Germany, on January 18, 1937.

At the trial the Government introduced a photostatic copy of what purported to be a price list upon which the merchandise in question had been identified at prices higher than the appraised value. Attached to the price fist was a letter addressed to a firm other than the defendant dated December 11, 1936, stating that the new prices quoted in the fist would be charged for all future orders and that the present orders would be executed at the old terms. It was also noted in the letter that the advance in prices was caused by the devaluation of the currency and that all manufacturers resolved to raise the selling prices in order to balance the considerably increased costs of the raw materials. No other evidence was introduced.

From the evidence before me it is clear that the price fist relates to future orders because of increased costs. The Government has failed to show the effective date of the new price fist or that there had been any deliveries thereunder. The invoice before me constitutes some evidence tending to establish that when the merchandise left Graslitz, 6 days after the date of the foregoing mentioned letter, the price list was not at that time effective. There is also nothing before me to establish that said price list was effective at the time the merchandise left Germany. I am of the opinion that in the absence of a showing of the effective date of the new price list and in the absence of sales at the new prices, an order placed nearly 3 months previous to the issuance thereof covering a sale for merchandise that was shipped subsequent thereto should be valued at the old prices. See Department ruling in this respect, published in T. D. 36448.

For the reasons stated I therefore find that the appraised value represents the dutiable value of the merchandise.  