In view of the foregoing, I find as matters of fact:

1. The imported merchandise involved herein consists of certain can-making machine repair parts and can-closing machine repair parts exported by American Can Company of Canada, Ltd., from Canada between December 18, 1962, and March 25, 1963.

2. That said merchandise was appraised on the basis of constructed value as defined in section 402 (d) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956.

3. The said merchandise does not appear on the final list, T.D. 54521.

4. The said merchandise was exported from Canada exclusively to the American Can Company of New York.

5. American Can Company of New York and the exporter, American Can Company of Canada, Ltd., are related persons within the meaning of section 402 (g) of the Tariff Act of 1930, as amended, supra.

6. The invoice unit values consist of the cost of materials, fabrication, and other processing employed in producing the merchandise at a time preceding the date of exportation of the merchandise which would ordinarily permit the production of that merchandise in the ordinary course of business, and the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States and do not include general expenses and profit.

7. No other producer in Canada exports such or similar merchandise to the United States, nor does any other producer sell such or similar merchandise in Canada.

8. The American Can Company of Canada, Ltd., does not sell can-making machine repair parts in Canada. It does sell can-closing machine repair parts in Canada, principally to customers leasing such machinery.

9. Can-making machine repair parts and can-closing machine repair parts are merchandise of the same class or kind.

10. The appraiser increased the entered unit values by 36.7 percent for profits and general expenses, intending to reflect profits and general expenses usually reflected on sales of can-closing machine repair parts in Canada by the American Can Company of Canada, Ltd. Of this 36.7 percent, 15.9 percent was intended to reflect profits and 20.8 percent was intended to reflect general expenses.

11. Expenses for freight, tooling, and parts scrapped covered by accounts 973-3 to 973-5 referred to above are not properly part of dutiable value.

12. The record establishes the following profit and expenses for the years 1962 and 1963:

A percentage of the cost of parts sold (Item 1, above) equal to the percentage which the allocation of New York Administration and Service costs to the machine shop bears to the total sales and transfers from the machine shop. The relevant percentages are:

I, therefore, conclude as matters of law:

1. Constructed value as that value is defined in section 402 (d) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 70 Stat. 944, is the proper basis of value for the merchandise covered by the appeals listed in schedule "A," annexed hereto and made a part hereof.

2. Said value is the invoice price, plus an exchange conversion factor of 7.53 percent, plus the basis for general expenses and profits as shown in findings of fact No. 12. Judgment will be entered accordingly.

(R.D. 11578)

MARVEL INDUCTORS v. UNITED STATES

Hearing aids

Reappraisement R66/27686

Entered at Los Angeles, Calif.

Entry No. 100511

(Decided September 12, 1968)

Stein & Shostak for the plaintiff.

Edwin L. Weisl, Jr., Assistant Attorney General, for the defendant.

WILSON, Judge: This appeal for reappraisement has been submitted for decision upon the following stipulation:

IT IS HEREBY STIPULATED AND AGREED by and between counsel for the respective parties hereto, subject to the approval of the Court, as to the merchandise covered by the entry the subject of the appeal for reappraisement enumerated in the attached Schedule of Cases, which is incorporated herein:

1. That on the date of exportation thereof to the United States, the market value or the price at which such or similar merchandise was freely sold or in the absence of sales freely offered for sale to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, 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, were the invoiced unit values, net packed, as entered.

2. That the merchandise the subject of the appeal for reappraisement enumerated in the attached Schedule is not identified in the Final List published by the Secretary of the Treasury in T.D. 54521, pursuant to the Customs Simplification Act of 1956, T.D. 54721 [sic], effective February 27, 1958.

3. That all the merchandise covered by the appeal for reappraisement was entered for consumption subsequent to February 27, 1958. 4. That the appeal for reappraisement may be deemed submitted for decision on this stipulation.

Upon the foregoing agreed facts, I find and hold export value, as that value is defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165, 91 Treas. Dec. 295, is the proper basis of value for the merchandise here under consideration and that, in the case at bar, the invoiced unit values, net packed, as entered, properly represent such dutiable value. Judgment will be entered accordingly.

(R.D. 11579)

J. C. PENNEY PURCHASING CORP. v. UNITED STATES

Wool rugs-Export value

Reappraisement R65/12847 and six others

Entered at Wilmington, N.C.

Entry No. 1962, etc.

(Decided September 19, 1968)

Sharretts, Paley, Carter & Blauvelt for the plaintiff.

Edwin L. Weisl, Jr., Assistant Attorney General, for the defendant.

RAO, Chief Judge: The merchandise covered by the appeals for reappraisement listed in schedule A, annexed to this decision and made a part hereof, have been submitted for decision upon a written stipulation of counsel for the respective parties hereto which reads as follows:

IT IS HEREBY STIPULATED AND AGREED by and between counsel for the plaintiff and the Assistant Attorney General for the United States that the merchandise herein consists of oval tubing mats exported from Japan between December 30, 1961 and June 6, 1962 and that said merchandise is not on the list of products published in T.D. 54521 from which the application of the Customs Simplification Act of 1956 (P.L. 927, 84th Congress, Second Session) is withheld.

IT IS FURTHER STIPULATED AND AGREED that the price at the time of exportation of the instant merchandise at which such or similar merchandise was freely sold, or in the absence of sales, offered for sale in the principal markets of the country of exportation in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States, including the cost of all containers of whatever nature and all other expenses incidental to placing the merchandise in condition packed, ready for shipment to the United States was $0.1375 per square foot net packed.

IT IS FURTHER STIPULATED AND AGREED that the instant appeals are submitted for decision on this stipulation.

Upon the agreed statement of facts, I find export value as that value is defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, to be the proper basis for the determination of the value of the oval tubing mats here involved, and that such value was $0.1375 per square foot, net packed. Judgment will be entered accordingly.

(R.D. 11580)

MITSUI & CO., LTD. v. UNITED STATES

Electrical equipment

Reappraisements R67/3573 and R67/3592

Entered at Chicago, Ill.

Entry Nos. 60312; 64326.

(Decided September 19, 1968)

Barnes, Richardson & Colburn for the plaintiff.

Edwin L. Weisl, Jr., Assistant Attorney General, for the defendant.

FORD, Judge: The above appeals for reappraisement have been submitted on the following stipulation:

1. That the subject appeals for reappraisement were filed in each case within thirty (30) days after the mailing by the District Director of Customs at Chicago of a notice of appraisement, Customs Form 4301, to the importer of record.

2. That at the time such notices were mailed by the District Director the merchandise covered by the respective entries had not been appraised.

3. That when such merchandise was appraised, the appraised values exceeded the entered values.

4. That no notice of appraisement was mailed or delivered after appraisement of the merchandise.

THEREFORE, the parties join in requesting the Court to issue an order holding that the appeals for reappraisement filed within 30 days after the mailing of a notice of appraisement issued before appraisement are null and void, ordering that said appeals for reappraisement be dismissed and ordering that the official papers be returned to the District Director at Chicago to enable him to issue the notices of appraisement as provided for under section 501 of the Tariff Act of 1930, as amended.

Accepting the foregoing stipulation of fact, I hereby dismiss the above appeals as being premature.

Judgment will be entered accordingly.