Jimlar Corp. v. US

• Decision Date: 14 July 1987
• Docket Number: Court No. 80-7-01092.
• Citation: 670 F. Supp. 1001
• Parties: JIMLAR CORPORATION, Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

670 F. Supp. 1001

JIMLAR CORPORATION, Plaintiff, v. The UNITED STATES, Defendant.

Court No. 80-7-01092.

United States Court of International Trade.

July 14, 1987.

Stedina & Deem (Charles P. Deem, New York City, at the trial and on the brief), for plaintiff.

Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch (Judith Barzilay, at the trial, and Florence M. Peterson, New York City, on the brief), for defendant.

MEMORANDUM OPINION

RE, Chief Judge:

The question presented in this case pertains to the proper appraisement or valuation, for customs duty purposes, of certain men's footwear imported from Taiwan. The Customs Service appraised the merchandise on the basis of American selling price, in accordance with section 402a(g) of the Tariff Act of 1930, 19 U.S.C. § 1402(g) (1976) (repealed 1979).

Plaintiff protests the appraisement of the merchandise on the basis of American selling price, and contends that the imported footwear is not "like or similar" to the domestic prototypes used by customs as a basis for comparison. Specifically, plaintiff contends that the domestic prototypes are not commercially interchangeable, competitive, or an acceptable substitute for the imported merchandise. Plaintiff claims that "appraisement should have been made on the basis of Export Value at $2.619 per pair."

Defendant contends that plaintiff has failed to rebut the statutory presumption of correctness which attaches to the government's appraisement of the imported merchandise. Defendant concedes that the imported footwear is not "like" the domestic prototypes used by Customs, but maintains that the appraisements by Customs were correct because both types of imported footwear are "similar" to the domestic prototypes.

The question presented is whether the domestic prototypes used by Customs as the basis for valuation are "similar" to the imported footwear. If the domestic prototypes are not similar, the valuation was improper, and the appraisement by Customs should have been made on an alternative basis. See A. Zerkowitz & Co. v. United States, 58 CCPA 60, 70, 435 F.2d 576, 584 (1970), cert. denied, 404 U.S. 831, 92 S.Ct. 72, 30 L.Ed.2d 60 (1971); Samuel Brilliant Co. v. United States, 9 CIT ___, Slip Op. 84-41, at 2 (Apr. 4, 1985); Stride Rite Corp. v. United States, 9 CIT ___, 605 F.Supp. 279, 282, aff'd, 775 F.2d 1158 (Fed.Cir.1985).

After careful examination of the evidence adduced at trial, the contentions of the parties, and the relevant case law, it is the determination of the court that plaintiff has not overcome the presumption of correctness which attaches to the government's determination of dutiable value. See 28 U.S.C. § 2639(a)(1) (1982); New Trends, Inc. v. United States, 10 CIT ___, ___, 645 F.Supp. 957 (1986). Accordingly, the valuation of the imported merchandise by Customs is affirmed.

The Tariff Act defined American selling price as:

the price, 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 delivery, at which such article is freely offered for sale for domestic consumption to all purchasers in the principal market of the United States, in the ordinary course of trade and in the usual wholesale quantities in such market, or the price that the manufacturer, producer, or owner would have received or was willing to receive for such merchandise when sold for domestic consumption in the ordinary course of trade and in the usual wholesale quantities, at the time of exportation of the imported article.

Tariff Act of 1930, § 402a(g), 19 U.S.C. § 1402(g) (1976) (repealed 1979).

The merchandise consists of fabric upper, rubber-soled men's casual shoes, style Nos. 43-J-6474 (6474) and 43-J-6475 (6475). The 6475 is an oxford or laced shoe, and the 6474 is a slip-on shoe.

The 6474 footwear was the subject of two court actions, which are presently consolidated under Court No. 80-7-01092. In the first action, the 6474 footwear was appraised and liquidated at $8.50 per pair, less 2 percent or $7.50 per pair, less 2 percent, depending on the date of entry, using the Casablanca style footwear manufactured by P.F. Industries, as the domestic prototype. In the second action, the 6474 footwear was appraised and liquidated at $8.00 per pair, using the Wellco style no. 22804 as the domestic prototype. The 6475 footwear was appraised and liquidated at $9.00 per pair on the basis of American selling price, using Wellco style no. 22806 as the domestic prototype.

A determination as to whether imported merchandise is similar to domestic prototypes is controlled by a four-part test. The factors to be considered include: (1) similarity of material, (2) commercial interchangeability, (3) adaptability to the same use, and (4) the competitive character of the imported and domestic merchandise. See A. Zerkowitz & Co. v. United States, 58 CCPA 60, 65, 435 F.2d 576, 580, (1970), cert. denied, 404 U.S. 831, 92 S.Ct. 72, 30 L.Ed.2d 60 (1971); Samuel Brilliant Co. v. United States, 11 CIT ___, Slip Op. 87-40, at 3 (Apr. 1, 1987).

At trial, a number of exhibits were entered by the parties, and the court heard the testimony of three witnesses. The witnesses testified as to their opinions whether the domestic prototypes were similar to the imported footwear.

On cross-examination, both of plaintiff's witnesses testified that the materials used in the construction of the imported merchandise and the domestic prototypes are basically similar. As...