
    M. Hagel v. United States
    No. 4693.
    Invoice dated Warsaw, Poland, January 5, 1937.
    Entered at New York January 21, 1937.
    Entry No. 807060.
    (Decided December 18, 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 on certain dried mushrooms imported from Poland and entered at the port of New York. The shipment was invoiced at a price of 6.62 zlotys per kilo, including packing, freight to Gdynia, insurance and consular fee. It was entered at $1.25 per kilo, packed. It was appraised at 8 zlotys per kilo net packed.

At the trial the importer of this merchandise testified in his own behalf, and there was incorporated the record in reappraisement 120377-A published in Reap. Dec. 4456. After the case had been submitted it was reopened and the affidavit of a member of the exporting firm was offered and received in evidence and the case resubmitted.

The Government attorney moved to dismiss the case on the ground that the invoice was improperly drawn and that the importer had not made a prima facie case. This motion was withdrawn later, as to the first ground, viz, that the invoice was improperly drawn.

The importer testified that these mushrooms were of nearly the same average grade and quality as those involved in the incorporated case. This witness also testified that there are five grades of mushrooms and that the importation now before us consisted of those having an average of three-quarter stems, but that they allow a percentage of small stems in that grade; that these were about the third or fourth grade after the “leaf.” He further testified that he bought both of the shipments, that is the one now before us and the one involved in the incorporated case, from the same exporter and that he personally examined each and every case of both shipments; that based upon his many years’ experience he would say that the average quality of both shipments was the same. He also stated that in any shipment of mushrooms there are all kinds and grades intermingled, and that it is impossible to get all of one kind in any one shipment.

It will be noted that the instant importation was entered on a consular invoice which was certified January 5, 1937, and that the date of certification of the invoice in the incorporated record was September 22, 1936. From the testimony in said incorporated case it appears that prices vary according to weather and supply and that the price is predicated on the crop of that year.

The affidavit of M. Elfman, a member of the exporting firm, with an experience in dealing in mushrooms of all kinds and grades for over 20 years, states that he is personally familiar with the type and quality of these mushrooms in suit; that his firm has been selling the same type and quality in the usual wholesale quantities in the principal markets of Poland for over 20 years; that Warsaw is one of the principal markets in Poland for mushrooms, and that the usual wholesale quantity for such mushrooms is one case or over weighing about 80 kilograms. It further appears from this affidavit that on or about the date of the certification of the invoice herein, mushrooms of the same land and grade were freely offered for sale to all purchasers in Warsaw in the usual wholesale quantities in the ordinary course of trade for exportation to the United States at a price of 6.62 zlotys per kilo, including freight to Gdynia, the cost of all containers and coverings of whatever nature, insurance, and consular fee; that the price for the same kind and grade of mushrooms sold for home consumption and for export to countries other than the United States was no higher.

The Government produced no testimony in rebuttal but rested upon its motion to dismiss on the ground that the plaintiff had failed to make a prima facie case.

The court has carefully considered all the evidence produced, including that in the record incorporated, and concludes that the importer, the plaintiff herein, has established that the price of this class of mushrooms in Poland both for home consumption and for export is the invoice price, viz, 6.62 zlotys per kilo. I therefore find as follows:

1. The foreign value of these Polish mushrooms is the same as the export value.

2. The export value as that value is defined in section 402 (d) of the Tariff Act of 1930, is 6.62 zlotys per kilo, packed, less freight to Gdynia, insurance and consular fee as invoiced.

Judgment will be rendered accordingly. It is so ordered.  