Sportswear, Inc., C.A.D. 929, and that the record in the said cited case may be incorporated in the records of the appeals enumerated on said Schedule "A".

5) That on or about the dates of exportation, the prices at which such or similar merchandise was freely sold or 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 Ünited States, were the invoice unit ex-factory prices, net packed. 6) That the appeals enumerated in said Schedule "A" may be submitted for decision upon this stipulation and the incorporated record.

Upon the agreed statement of facts and the cited authority, 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 wearing apparel exported from Hong Kong here involved, and that such prices were the invoice unit ex-factory prices, net packed. Judgment will be entered accordingly.

(R.D. 11613)

SABIN METAL CORP. v. UNITED STATES

Metal and alloys-Export value

Reappraisement R67/1564

Entered at New York, N.Y.

Entry No. 938933.

(Decided December 31, 1968)

Rode & Qualey for the plaintiff.

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

LANDIS, Judge: This appeal for reappraisement has been submitted for decision upon the following stipulation of counsel for the parties:

IT IS HEREBY STIPULATED AND AGREED by and between counsel for the plaintiff and the Assistant Attorney General for the United States:

1. That the merchandise involved in the above entitled appeal consists of titanium sponge exported from the Soviet Union on or about November 22, 1965;

2. That the said merchandise was entered for consumption after February 27, 1958 and is not on the Final List of the Secretary of the Treasury published in T.D. 54521 as provided for in Section 6(a) of the Customs Simplification Act of 1956, Public Law 927, 84th Congress and that such merchandise is subject to appraisement under

Section 402 of the Tariff Act of 1930 as amended by said Customs Simplification Act.

3. 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 freely offered for sales to all purchasers 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 and covering 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 was $1.80 U.S. per kilo, less 12.36 percent, net packed.

4. That this appeal for reappraisement may be submitted for decision on the foregoing stipulation.

Accepting this stipulation as a statement of facts, I find and hold that export value, as defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956 (T.D. 54165), is the proper basis for determining value of the titanium sponge described in the invoice covered by the entry in this reappraisement, and that such value is $1.80 U.S. per kilo, less 12.36 percent, net packed.

In all other respects and as to all other merchandise, this appeal for reappraisement is dismissed.

Judgment will be entered accordingly.

DECISIONS OF THE UNITED STATES

CUSTOMS COURT

Reviews

(A.R.D. 241)

UNITED STATES v. LOCKWOOD & FREIDIN

Frozen strawberries-Export value

EXPORT VALUE-FROZEN STRAWBERRIES

Decision below that the packer's export sales of frozen strawberries to a selected purchaser, representing a substantial portion of the trade in frozen strawberries of the same class or kind, were in the "ordinary course of trade" at a price that fairly reflected the market value, AFFIRMED.

ORDINARY COURSE OF TRADE

The intrinsic value of a well-recognized brand product of merchandise is a substantively different question from whether the business in that product is in the ordinary course of trade. The factors which determine the "ordinary course of trade," as defined in section 402 (f) (2), are the conditions and practices normal in the trade with respect to merchandise of the same class or kind as the merchandise undergoing appraisement. Chr. Bjelland & Co., Inc. v. United States, 52 CCPA 38, C.A.D. 855, cited and discussed. PRICE WHICH FAIRLY REFLECTS MARKET VALUE

Proved cost items that make a packer's export price to a selected purchaser less than the export price of others for identical or similar merchandise (frozen strawberries) to all purchasers need not adjust the difference to the penny. The word "fairly" in section 402(f) (1) connotes no more than the reasonable approximation necessary to a determination that the price fairly reflects the market value.

APPLICATION FOR REVIEW OF REAPPRAISEMENT DECISION 11273

Reappraisement R59/9242 and 75 others

Entered at Laredo, Tex.

Entry No. 4668, etc.

348-546-69- -38

(573)

[Affirmed.]

Third Division, Appellate Term

(Decided July 18, 1968)

Edwin L. Weisl, Jr., Assistant Attorney General (Sheila N. Ziff, trial attorney), for the appellant.

Barnes, Richardson & Colburn (Joseph Schwartz of counsel); Harold Orlinsky, associate counsel; for the appellee.

Before RICHARDSON and LANDIS, Judges

LANDIS, Judge: This matter comes up on application to review the decision and judgment of the single judge, after trial, holding that the amount of export value proper for canned frozen strawberries and strawberry puree, exported from Mexico during the period April 2, 1958, to July 8, 1963, was the claimed invoice prices rather than the appraised unit prices. Lockwood & Freidin v. United States, 58 Cust. Ct. 622, R.D. 11273.

The shipments, too numerous to recount, were serviced by Lockwood & Freidin, customhouse brokers at Laredo, Texas. They are all covered by the 76 appeals for reappraisement listed in schedule A, attached to and made a part of this decision, consolidated for trial to test the appraisements under section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165. There is no issue as to valuation basis under section 402, as amended. Frozen strawberries are not on the final list published by the Secretary of the Treasury, T.D. 54521, pursuant to the 1956 Simplification Act, supra. The strawberries were appraised on export value basis. Export value is the claimed and preferred statutory basis under section 402, as amended, where it is defined as follows:

(b) EXPORT VALUE.-For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is 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, plus, when not included in such price, 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.

The dispute as to the amount of export value is set in the fact that the packer of the imported strawberries, Empacadora Mexicana, S.A. (hereinafter referred to as Empacadora), sold them at a price somewhat less than that at which other packers sold identical or similar strawberries for export to the United States. All of the packers are

located in the region identified as Guanajuato, Mexico, where the strawberries are principally grown. Empacadora sold its entire output, year in and year out, to Rico, Inc., El Paso, Texas, the actual importer in these appeals, at invoice unit prices ranging from 9 cents to 12 cents per pound, f.o.b. Silao, Mexico. (Exhibit 1.) The appraiser valued the Empacadora strawberries at unit prices ranging from 9 cents to 16.5 cents per pound, net packed. (Exhibit A.) The appraised unit prices are concededly based on the price at which other packers sold identical or similar strawberries for export to the United States. Appellant's counsel avers that the difference in the invoice and appraised prices averages out to about 1/2 or 212 cents per pound.

The overall question briefed below and argued here is which of the two, the invoiced or appraised unit prices, represents the price at which the imported strawberries were freely sold, in the ordinary course of trade, at the time of exportation to the United States. Section 402 (b), as amended, supra. The terms "freely sold" and "ordinary course of trade" are defined in section 402, as amended, as follows: Section 402(f):

(f) DEFINITIONS.-For the purposes of this section—

(1) The term "freely sold or, in the absence of sales, offered for sale" means sold or, in the absence of sales, offered

(A) to all purchasers at wholesale, or

(B) in the ordinary course of trade to one or more selected purchasers at wholesale at a price which fairly reflects the market value of the merchandise,

without restrictions as to the disposition or use of the merchandise by the purchaser, except restrictions as to such disposition or use which (i) are imposed or required by law, (ii) limit the price at which or the territory in which the merchandise may be resold, or (iii) do not substantially affect the value of the merchandise to usual purchasers at wholesale.

(2) The term "ordinary course of trade" means the conditions and practices which, for a reasonable time prior to the exportation of the merchandise undergoing appraisement, have been normal in the trade under consideration with respect to merchandise of the same class or kind as the merchandise undergoing appraisement.

What we have are appraisements at unit prices at which other packers freely sold merchandise identical or similar to the imported strawberries to all purchasers at wholesale, and invoice unit prices at which Empacadora sold the imported strawberries to one selected purchaser, Rico, Inc. The appraised unit prices are presumptively correct. However, the statute specifically says that, where it can be satisfactorily determined, the first category of merchandise upon