
    United States v. Elliot Greene & Co., Inc., et al.
    No. 4538.
    Invoices dated Wattens, Tyrol, Austria, November 15, 29, 22, 1935.
    Certified November 18, December 2, November 25, 1935.
    Entered at New York November 29, December 14, 12, 1935.
    Entry Nos. 766889, 774710, 773174, 774760.
    (Decided on remand [Reap. Dec. 4452] March 13, 1939)
    
      Webster J. Oliver, Assistant Attorney General (Richard F. Weeks, special attorney), for the plaintiff.
    
      Chris. C. Keenan and Siegel & Mandell (Sidney Mandell of counsel) for the defendants.
   Sullivan, Judge:

The merchandise involved in these reappraise-ments, which are collector’s appeals, consists of certain imitation precious stones, invoiced as roses montees and chatón roses, imported from Wattens, Tyrol, Austria, during the months of November and December 1935.

This is the second time this case has been before me.

On March 3, 1938, I rendered my decision (Reap. Dec. 4246) and judgment herein, holding — ■

* * * that the foreign value, as that value is defined in section 402 (c) of the Tariff Act of 1930, is the proper basis for the determination of the value of the merchandise described below, and * * * that such values are as follows:
Beappt.No. Item Austrian schillings per She 100 doz
112337-A 221 18 4.90
112337-A 220 16 2.30
112338-A 221 18 and 20 4.90
112339-A 221 13 4.30
All less 2 % discount Packing included.
As to all other merchandise involved the proper values are the values returned by the appraiser.

My decision and judgment were mainly based on the evidence contained in two special agents’ reports, Exhibits 1 and 2, dated, respectively, November 18, 1935, and January 16, 1936.

On appeal by the Government (the plaintiff herein) Appellate Division Two in its opinion (Reap. Dec. 4452) called attention to the fact that Exhibit 1 was a photostatic copy and Exhibit 2 a carbon copy, and that they were not “certified by an official duly authorized by the Secretary of the Treasury” as required by section 501 of the Tariff Act of 1930. For that reason the appellate division held they were not admissible in evidence.

The appellate division closed its decision by stating:

Since the trial Court based its decision to a great extent on the said reports, and since it has not considered this case on the record with these reports excluded, we hereby remand this ease to the trial Court for the purpose of deciding the same ■on the record as made with the report of November 18, 1935, and the report of ■January 16, 1936, excluded. Judgment will be rendered accordingly.

The appellate division’s judgment was to the same effect.

Consequently the only evidence now before me is the testimony of John F. Kean, examiner of merchandise, called by the plaintiff (the Government), and Louis Á. Greene, called by the defendant (the importer).

Mr. Kean testified he examined and appraised the merchandise in question; that it is imitation precious stones, known as roses and roses montees, the manufacturer’s number of the unmounted being 220, and of the mounted 221; that these are collector’s appeals, and the merchandise originally was appraised at the entered values; that he asked for a report, and when it was received, he asked for a collector’s appeal; that, as a result of the investigation he requested, he received Exhibits 1 and 2; that both the “220 and 221 stones” are the same with the exception that one is mounted and the other is not, No. 220 being the unmounted stone.

Referring to No. 221, sizes 5 to 17, he testified that the claimed value on that size stone was “2.30 Austrian Schillings per hundred dozen, less 2 per cent cash, plus the Austrian tax of 6.82 per cent” and on No. 220, sizes 18 to 21 the claimed value “is 2.70” with “some plussage,” being “less 2 per cent for cash, plus 6.82 per cent Austrian taxes.” Referring to No. 221, being the same stone mounted, sizes 5 to 17, he testified the claimed value is “4.30 Austrian Schillings, less 2 per cent cash, plus 6.82 Austrian Government taxes” per hundred dozen; that the claimed value of stone sizes 18 to 21 is “4.90 Austrian Schillings per hundred dozen, less 2 percent cash, plus 6.82 Austrian Government tax,” and he thinks “that price was packed.”

On cross-examination he testified his information was derived entirely from the reports heretofore mentioned, and he personally had never been in the home market. By reason of this fact I must ignore Mr. Kean’s testimony.

Defendant’s witness Greene testified on behalf of the importer that he is an importer of stones and beads, and was in Wattens in the Spring of 1935 when he called on Mr. Swarovsld, and gave him an order for roses montees; that he was in that market again in 1936, and placed a further order with him at that time; that Mr. Swarovsld informed the witness, when the witness was in Austria at the end of April 1935. .also when Mr. Swarovski was in New York in June 1935, that he, Mr. Swarovsld, was not selling this merchandise No. 220 or 221 in the home market.

On cross-examination the witness testified Mr. Swarovsld was not referring to sales made in October, November, and December, 1935, for the reason that such dates were subsequent to the time he spoke to the witness.

In reappraisement 112338-A there are four items of roses montees, viz, 1 item No. 221, size 9, and three items of No. 221, sizes 18 and 20. Size No. 9 was invoiced per 100 dozen in “Aust. Sh. .1875” 2.91, and entered and appraised per 1,000 dozen in United States currency at $6. Sizes Nos. 18 and 20 were invoiced per 100 dozen in “Aust. Sh. .1875” at 3.52 each, and entered and appraised per 1,000 dozen in United States currency at $6.50. Packing included.

In reappraisement 112337-A there are two items of roses montees and one item of chatón roses. Roses montees, size 7, No. 241, was invoiced, entered, and appraised per 1,000 dozen in United States-currency at $3.53; roses montees, size 18, No. 221, at $6.50 per 1,000-dozen; and chatón roses, size 16, No. 220, at $4 per 1,000 dozen. Less cash discount of 2 per centum, packing included.

In reappraisement 112339-A, there are 21 items of roses montees and chatón roses, invoiced, entered, and appraised at the same values in United States currency per 1,000 dozen. Less cash discount of 2 per centum, packing included.

In 112340-A there are nine items of roses montees invoiced, entered, and appraised at the same values per 1,000 dozen in United States currency, less cash discount of 2 per centum, cases and packing included.

Inasmuch as the Government has not introduced competent evidence to sustain its contention that the appraised values in these cases are erroneous, I affirm such values.

Judgment accordingly.  