DECISIONS OF THE UNITED STATES CUSTOMS COURT Reappraisements (R.D. 11556) THE A. W. FENTON CO., INC. v. UNITED STATES SEPARABILITY RULE Crushed stone-Export value Where plaintiff contests basic appraised prices, dispute as to charges noted nondutiable and dutiable, in an otherwise separable appraisement, is irrelevant since the disputed price brings into question the balance of the appraisement represented by the charges. PRICE SEPARABILITY RULE A plaintiff may not disavow the presumptively correct appraised price and rely on the separability rule to contest the appraised price, separate from the issue of charges, in a piece-meal fashion. No one can say that on a price different from the appraised price, the appraiser would have found any applicable charges or the same amount of charges. PRICE SELECTED PURCHASER Export value at the wholesale price to a selected purchaser which fairly reflects the market value of merchandise is an alternative available only in the absence of sales or offers for sale at a price to all purchasers at wholesale. Proof that a particular purchaser is a selected purchaser as to price is insufficient to overcome the presumption that the merchandise is freely sold or offered for sale to all purchasers at wholesale. SELECTED PURCHASER-RESTRICTIONS A right reserved by the seller on the disposition and use of merchandise sold to a selected purchaser interdicts the sale to the selected purchaser in the ordinary course of trade at a price which fairly reflects the market value of the merchandise under section 402 (f) (1) (B), Tariff Act of 1930, as amended. CHARGES-PROOF Proof that exported stone is available for consumption in Canada, in truck lots, ex-quarry, for delivery by truck in Canada, is not probative that the stone was sold or offered for sale for export to the United States, ex-quarry, without included charges. PRICE DEDUCTIONS An appraisement at price less nondutiable charges being presumptively correct, as a matter of law, is insulated to alternative claim of defendant that as a matter of law the export value is the appraised price without the deductions. EXPORT VALUE-CONSTRUCTION The judicial construction, that charges which accrue after merchandise is in the principal market packed ready for shipment to the United States are not part of export value, having achieved substantial fairness and survived reenactment of the export value statute without substantial change, is deemed to have received congressional approval. Reappraisement R66/3457 and 6 others Entered at Cleveland, Ohio (Decided July 2, 1968) Barnes, Richardson & Colburn (Joseph Schwartz of counsel) for the plaintiff. Edwin L. Weisl, Jr., Assistant Attorney General (Glenn E. Harris, trial attorney), for the defendant. LANDIS, Judge: The overriding issue for determination in these appeals for reappraisement (there are seven consolidated for trial) is the dutiable export value (section 402, Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 70 Stat. 943, T.D. 54165) of crushed dolomite, a kind of stone, exported from Canada in seven shipments during the period April 20, 1962, to December 10, 1964. There are connected issues involving alleged appraised c.i.f. prices and appraised nondutiable and dutiable charges which I shall take up in this opinion. The stone was shipped in sizes designated on the invoices as 3's, 4's, 6's, and screenings. It was exported by Port Colborne Quarries, Ltd. (hereinafter referred to as Port Colborne), Port Credit, Ontario, Canada, on invoice to Breckling Concrete, Ltd., Cleveland, Ohio (R66/3457); Osborne Concrete Stone Co., Grand River, Ohio (R66/3793), and Ontario Stone Corp., Cleveland, Ohio (hereinafter referred to as Ontario), in the remaining five reappraisements. Plaintiff is a customs broker and serviced entry of the stone at the Cleveland port for the importers. The official papers, consisting of official customs entry and connected forms with supporting invoices, are in evidence. (R.2.) They set the tone of the dispute. Each entry is supported by three invoices, a commercial invoice, special customs invoice, and so-called pro forma invoice. The commercial invoice recites the name of the buyer, terms of payment, size stone, tonnage, unit price per net ton, and extended totals. The special customs invoice (C.F. 5515), which also shows a unit price per net ton (not always the same as the commercial invoice unit price) recites that the price is a c.i.f. duty paid price "including charges as shown on back" and there identified as trucking, stacking, loading vessel, wharfage, and water transportation charges. (A small canal toll charge identified on the special customs invoice in R66/3457 is not a material issue in these appeals.) The pro forma invoice is a compilation of information from the commercial, special customs invoices, and perhaps other sources (there are some discrepancies in the unit prices recited in the three invoices, see R66/3526, R66/3505, and R66/3793) apparently prepared by the customhouse broker to support an entered value at the pro forma c.i.f. duty paid price less the included charges, less broker's handling fee and included duty. The appraiser advanced the entered values, noting the advance in red ink on the pro forma invoices in substantially the following form "Appraised at U.S. [price] per net ton, less NDC's as noted, less handling fee, less included duty." He clarified his quoted notation with additional item red ink notations marking item amounts for loading, wharfage, and transportation charges with the familiar letter code "ND" for nondutiable; checking the nondutiable item amounts he approved for handling fee and included duty, and marking the item amounts for trucking and stacking charges with the letter code "D” for dutiable. Discounting discrepancies, to which attention was called at the trial, between the entered values claimed in plaintiff's rule 15 (d) statement and the claimed commercial invoice prices voiced at trial, plaintiff's case comes down to claim that the correct export value for the stone is the commercial invoice unit price, less the nondutiable charges, handling fee and included duty noted by the appraiser, less the amount of trucking and stacking charges. (Plaintiff's brief, page 3.) Defendant, in its rule 15 statement, defends the appraised values of the stone as noted on the official papers, and, alternatively, claims the per se appraised price, per net ton, without any deductions. I assume that it was an oversight that defendant failed to make the same alternative claim as to the stone screenings in R66/3465. The 1 The various invoice and appraised unit prices, per net ton, exclusive of charges, are as follows: Reap. No. Export Date Merchandise Commercial Special Pro forma Appraised alternative claim is a question of law which I shall take up after considering plaintiff's claims. Before weighing the proofs of record, some discussion is necessary on plaintiff's argument that the appraisements are separable as to the trucking and stacking charges noted as dutiable in the appraisements. The separability rule is a framework of convenience for the analysis of disputed appraisements. United States v. Chadwick-Miller Im porters, Inc., et al., 54 CCPA 93, C.A.D. 914. "That the plaintiff has the burden, in reappraisement, of establishing by competent proofs each and every disputed element of value, but does not need to prove that which is not disputed, is the essence of the separability rule." [Emphasis quoted.] United States v. Gehrig, Hoban & Co., Inc., 56 Cust. Ct. 782, 789, A.R.D. 204. The appraisements, which I have taken care to detail above, are quite clear as to what the appraiser did. They bear analysis in the context of what plaintiff disputes. Plaintiff accepts the presumptively correct appraised prices, less the noted nondutiable charges, handling fee and included duty (28 U.S.C. § 2633) for the stone designated 4's in reappraisement R66/3457 and the stone designated screenings in reappraisement R66/3793. As to said stone, in those reappraisements, plaintiff contests only the invoice item trucking and stacking charges noted dutiable in the appraisements. The dispute as to the stone in the balance of these reappraisements, including that stone designated 3's and 4's in reappraisement R66/3793, where plaintiff contests both the appraised prices and the dutiable noted invoice item trucking and stacking charges is something else again. For it mixes and raises entirely different issues to which plaintiff's rather sweeping statement that the "trucking and stacking in Canada is separable from any other issue” in these consolidated reappraisements will not stick. (Plaintiff's brief, page 14.) I agree that the appraisements are separable. And to the extent properly in issue, as in the case of the stone in R66/3457 and the screenings in R66/3793, plaintiff can properly rely on the presumptively correct appraised price and contest the disputed trucking and stacking charges. United States v. Gehrig, Hoban & Co., Inc., 54 CCPA 129, C.A.D. 924; Alvin Naiman Corporation v. United States, 54 Cust. Ct. 705, Reap. Dec. 11008. But where plaintiff contests basic appraised prices, dispute as to charges becomes, in my opinion, quite irrelevant since the disputed price "bring[s] into question the balance of the appraisement" represented by dutiable and nondutiable charges. United States v. Dan Brechner et al., 38 Cust. Ct. 719, 723, A.R.D. 71. Plaintiff cannot have it both ways, that is, disavow the presumptively correct appraised price and rely on the separability rule to |