(T.D. 49646). The court stated it had no intention of so holding and, therefore, held that the dutiable values were the list prices at which the merchandise was freely offered for sale.

Spearing, in exhibit 6, alleges that he acquired the merchandise in these cases from various auction houses, antique dealers, secondhand shops, and junk dealers in England. As he himself is an antique dealer, there is no adequate showing that his personal method of sending goods to the United States on consignment is "in the ordinary course of trade" and consistent with the practices in England, at the time of exportation, by the other antique dealers. The requirement of the statute under consideration is not met where appellant fails to show the ordinary course of trade of the other antique dealers as provided for in section 402 (f) (2), supra.

The court in R. J. Saunders & Co. Inc. v. United States, 55 Cust. Ct. 666, Reap. Dec. 11099 (decided November 8, 1965, and not ap pealed), stated that—

*** It has likewise not been established that other dealers or manufacturers of similar merchandise did not freely offer or sell their product for exportation to the United States. ***

The foregoing law is applicable to the situation in the instant case. Note also Hudson Shipping Co., Inc. v. United States, 43 CCPA 19, C.A.D. 604.

In a case involving importations of secondhand articles of the variety commonly called bric-a-brac, composed of brass, porcelain, glass, wood, marble, etc., and consisting of such items as chandeliers, statues, sconces, candelabras, plaques, frames, inkstands, and the like, the court, in Renee Antiques, Inc., et al v. United States, 56 Cust. Ct., Reap. Dec. 11151 (decided March 2, 1966), stated: "It was incumbent upon plaintiffs to show not the manner in which they bought, but the manner in which such or similar merchandise was sold or offered for sale to all purchasers. As to this proof which the statute requires for a showing of export value [same amended statute as here involved], the record is silent." In the case at bar, it was not incumbent upon plaintiff to show the manner in which they obtained the merchandise (on consignment) but the manner in which such or similar merchandise was sold or offered for sale to all purchasers, or the manner in which such or similar merchandise was shipped on consignment by other antique dealers in England for exportation to the United States, at the time of exportation.

On the record, plaintiff failed to make out a prima facie case. The record does not contain evidence sufficient to establish the claimed export value for the imported merchandise or evidence to overcome the presumptively correct United States value found by the appraiser.

I find the following facts upon the record presented:

1. That the merchandise consists of used and/or antique household goods, furniture, and bric-a-brac, exported from the Isle of Wight, England, between November 20, 1959, and February 11, 1961. 2. That said merchandise was shipped on consignment basis to three auction houses in the United States, for sale by them at auction. 3. That the auction houses were to retain 25 percent of the gross selling price realized at the auction sales, together with expenses and customs fees which they advanced.

4. That said merchandise was entered at the unit prices stated in the packing lists in each case (considered as invoices), which enumerated the individual items claimed as the 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.

5. That said merchandise was appraised on the basis of United States value, as defined in section 402 (c) of said amended act, at the unit prices stated in said packing lists (considered as invoices), plus 40 percent, packed.

6. That the prices stated in the said packing lists (considered as invoices) were not the prices at which such or similar merchandise was freely offered for sale or sold to all purchasers at wholesale in the ordinary course of trade.

I find as conclusions of law upon the record presented:

1. That the plaintiff has failed to make out a prima facie case on the basis of its claimed export value.

2. That the presumptively correct appraised values on the basis of United States value have not been overcome.

3. That United States value, as defined in section 402 (c) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165, is the proper basis for the determination of the value of the merchandise here involved.

4. That such United States value is represented by the appraised value as to all of the merchandise in each of the 12 appeals for reappraisement herein under consideration.

Judgment will be entered accordingly.

DECISIONS OF THE UNITED STATES

CUSTOMS COURT

Reviews

ORDER DISMISSING APPLICATION FOR REVIEW

JANUARY 17, 1966

A.R.D. 201.-Nichols & Company, Inc., v. United States, reappraisement R65/11397, etc. Entered at Boston, Mass. Appeal from order, dated October 1, 1965 (not published), by the appellant, dismissed.

Barnes, Richardson & Colburn (Joseph Schwartz of counsel) for the appellant. John W. Douglas, Assistant Attorney General (Samuel D. Spector, trial attorney), for the appellee.

Before OLIVER, WILSON, and NICHOLS, Judges; NICHOLS, J., concurring

WILSON, Judge: This is an application for review of the decision and judgment of a single judge sitting in reappraisement (52 Cust. Ct. 392, Reap. Dec. 10654) in which the trial judge affirmed the appraised values of the involved merchandise.

The merchandise consists of two so-called "preboarding machines," exported in a knocked-down condition from England on December 5, 1960, and entered at the port of Norfolk, Va. The merchandise was

761

appraised at £1750.00 each, plus spare parts, plus cases and packing, on the basis of foreign value, as defined in section 402a (c) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. The importer claimed below as it does here that the correct dutiable value of the involved merchandise was £1484.00, plus cases and packing of £102.00, plus £30.00 for delivery to port of embarkation, plus spare parts valued at £374.16.0, on the basis of cost of production, as defined in section 402a (f) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. Counsel for the respective parties agreed that the merchandise is described on the Final List of the Secretary of the Treasury, T.D. 54521, and thus subject to appraisement under section 402a (c) of the act, as amended, supra, or under section 402a (f) of said act, as amended, supra. It was further agreed that there was no export value for the involved merchandise (R. 3,6).

The provisions of the statutes herein involved are as follows: Section 402a (c) of the Tariff Act of 1930, as amended, supra:

FOREIGN VALUE.—The foreign value of imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale for home consumption 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, 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. Section 402a (e) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956:

UNITED STATES VALUE.-The United States value of imported merchandise shall be the price at which such or similar imported merchandise is freely offered for sale for domestic consumption packed ready for delivery, in the principal market of the United States to all purchasers, at the time of exportation of the imported merchandise, in the usual wholesale quantities and in the ordinary course of trade. with allowance made for duty, cost of transportation and insurance, and other necessary expenses from the place of shipment to place of delivery, a commission not exceeding 6 per centum, if any has been paid or contracted to be paid on goods secured otherwise than by purchase, or profits not to exceed 8 per centum and a reasonable allow ance for general expenses, not to exceed 8 per centum on purchased goods.

Section 402a (f) of the Tariff Act of 1930, as amended, surpa: COST OF PRODUCTION.-For the purpose of this title the cost of production of imported merchandise shall be the sum of—

(1) The cost of materials of, and of fabrication, manipulation, or other process employed in manufacturing or producing such or similar merchandise, at a time preceding the date of ex