WORDS AND PHRASES-Continued

MOLDING MACHINES (see TEAK BOAT DECKING; HARDWOOD TEAK
LUMBER, C.D. 4417).

SIGNAL (see BICYCLE HORN-LIGHTS; PARTS OF BICYCLES, C.D.
4433).

WILLFUL NEGLIGENCE (see HOUSEHOLD EFFECTS OF RETURNING
RESIDENTS; FREE ENTRY, C.D. 4431).

WOVEN FABRICS, WHOLLY OF COTTON
WATER-REPELLENT COTTON SUEDE FABRIC

Certain water-repellent cotton suede fabric was classified either as woven fabrics wholly of cotton, not fancy or figured, under item 322.14, or as woven fabrics wholly of cotton, fancy or figured, under item 322.15, Tariff Schedules of the United States. Plaintiff claimed that the said fabric was properly classifiable as woven or knit fabrics of textile materials, coated, under TSUS item 356.25.

The court held that the imported cotton suede fabric which was treated with a water-repellent finish that was not visible to the eye was not "coated" within the meaning of headnote 2(a) of schedule 3, part 4, subpart C of the tariff schedules and therefore not classifiable, as claimed by plaintiff, under item 356.25. Accordingly, plaintiff's claim was overruled. Kaplan Products & Textiles, Inc., C.D. 4425‒‒‒‒‒ YOKES, TELEVISION DEFLECTION

ASSEMBLED ABROAD, ARTICLES (see ASSEMBLED ABROAD, ARTICLES;
YOKES, TELEVISION DEFLECTION, C.D. 4421).

"ZING"

CONFECTIONERY (see EDIBLE PREPARATION NOT SPECIALLY
PROVIDED FOR; CONFECTIONERY, C.D. 4409).

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166

INDEX-DIGEST

VALUATION

Issues-Reappraisements

American selling price-alternative bases-motion to dismiss-failure of
proof-Where an importer attacked an American selling price appraise-
ment of an imported chloramphenicol intermediate known as "levo base"
by introducing evidence negating sales or offers for domestic consump-
tion of the only competitive product manufactured in the United States,
but did not present evidence that the manufacturer, producer, or owner
of such competitive product would not have sold or was not willing to
sell such product for domestic consumption during the relevant times,
the Government's motion to dismiss for failure of proof, made at the
conclusion of the importer's case, was granted. C.D. 4416_---
Appealed to U.S. Court of Customs and Patent Appeals; Appeal 5537
Export value-custom construction-delivered and installed prices-Pipe
organs and parts manufactured in and exported from St. Hyacinthe,
Canada, were appraised upon entry at the port of Detroit, Mich., on the
basis of export value as defined in 19 U.S.C.A. sec. 1401a (b) at values
which included installation costs and transportation to destination
charges. The plaintiff claimed that the organs and parts should be re-
appraised under the export value basis at values which exclude said
costs and charges.

The court held that the unique character of the pipe organs as mar-
keted, with their installation mandatorily and inextricably tied to their
sale, precluded ascertainment of uniform prices or values in the prin-
cipal market of the country of exportation, and that the record pre-
sented no evidence on which any statutory basis of value could be sus-
tained; therefore, plaintiff had not overcome the presumption of
correctness attaching to the findings of the district director. C.D. 4402__
United States value-general expenses and profit-The correct deduction
to be made for usual general expenses and profit in arriving at the
United States value of certain importations was in the amount derived
from the experience of Geigy Chemical Corporation, the company with
the largest share of the United States market. The appraising official
incorrectly disregarded Geigy's figures which were not automatically
or presumptively defective merely because Geigy was a wholly owned
subsidiary of its European supplier. R.D. 11775__

Burden of proof-evidence-Where appellant seeks to establish that
merchandise is subject to appraisement on the basis of United States
value, as defined in sec. 402a (e), Tariff Act of 1930, as amended, it must
first negate the existence of foreign and export value for such and
similar merchandise. Even if it proves such merchandise was not freely
offered for sale to all purchasers within the meaning of the statute for
home consumption or for exportation to the United States during the
relevant period, it must still establish either that there was no similar
merchandise or that similar merchandise was not so offered. The court
found that since the record was devoid of evidence, it could not be
held that there was no merchandise similar to thiourea within the mean-
ing of the statute, on the theory that, being a chemical compound, it was
unique and there could not be a similar product; that appellant had
failed to negate the existence of a foreign or export value for similar
merchandise, and, therefore, the appraised values must be sustained.
A.R.D. 314_.

Buyer-seller and principal-agent relationships distinguished-The decisive
consideration which distinguishes a principal-agent relationship from
a buyer-seller relationship is the right of the principal to control the
conduct of the agent with respect to the matters entrusted to him.
Which of these relationships exists is to be determined by the substance
of the transaction-not by the labels the parties attach to it. No single
factor is determinative; rather, the relationship is to be ascertained
by the overall view of the entire situation, with the result in each case
governed by the facts and circumstances of the case itself. A.R.D. 312__
Appealed to U.S. Court of Customs and Patent Appeals; Appeal 5535
Export value-presumption of correctness-evidence insufficient-Where
the parties agreed that the importer and the purchaser utilized by cus-
toms in making the appraisement were selected purchasers, it was in-
cumbent upon appellant to overcome the presumption of correctness
attaching to the action taken by customs and establish that the price
contended fairly reflected the market value. The appellate term held
that the evidence was insufficient to establish the merchandise used
as a basis for appraisement was "similar" and not "such"; that after-
service costs, modifications and advertising, without a further break-
down, were insufficient to overcome the presumption of correctness
attaching to the appraised value. A.R.D. 316------
Export value-sales in United States-Where the exporter's American
branch fixed the prices at which the imported merchandise was sold
to the purchaser in the United States, and did not transmit any offers
or orders of the purchaser to the exporter for acceptance or rejection,
appraisements on the basis of export value predicated upon the branch's
sales to the purchaser in the United States were erroneous. A.R.D. 315--
Measuring Instruments-final list description-Certain measuring in-
struments, parts and accessories were appraised on the basis of foreign
value, as defined in sec. 402a (c), Tariff Act of 1930, as amended. The
appraisal was based upon the customs official's presumptively correct
finding that the merchandise came within the Final List description
"Instruments and parts, laboratory, sound measuring," which specifies
articles subject to appraisement under sec. 402a of the act. Appellant
claimed that the merchandise was not within the purview of the Final
List description and therefore should be appraised on the basis of
export value as defined in sec. 402(b) of that act.

In affirming the decision of the trial court, the appellate term held
that the term "laboratory instruments" implies use for laboratory pur-
poses for experiment or study, and that classification thereunder or
determination that the merchandise comes within the Final List descrip-
tion in issue is predicated upon a finding that the merchandise was
chiefly used for laboratory purposes. The appellate term found that the
evidence of record failed to establish that the imported microphones
and accessories which concededly measured sound, were chiefly used for
other than laboratory purposes, and that one item of the importation, a
frequency analyzer, neither measured sound nor was chiefly used for
nonlaboratory purposes. A.R.D. 313__.
Principal-agent relationship-overall situation-Viewing the overall situa-
tion in the case, the court found that the record established that an
American corporation was operated and controlled in every aspect of its
business by its parent, a Canadian corporation, and concluded that the
merchandise is question was not sold by the Canadian Company to its
American Subsidiary, but that the American Company was a selling
agent of the Canadian Company. A.R.D. 312_-

Appealed to U.S. Court of Customs and Patent Appeals; Appeal 5535 Selected purchaser-agency-An export value under sec. 402(b) of the Tariff Act of 1930, as amended, was not established by appellants pursuant to sec. 402(f) (1) (B) where the record showed that the alleged "selected purchaser" (Robert Newton & Sons, Inc.) was not a bona fide purchaser, but rather was the selling agent of the exporter (American Marine, Ltd.), A.R.D. 311................

Appealed to U.S. Court of Customs and Patent Appeals; Appeal 5534

Page

279

312

301

286

279

275

Subsidiary corporation not necessarily agent of its parent company-A
corporation does not become an agent of another corporation merely
because a majority of the voting shares is held by the other. A.R.D. 312_
Appealed to U.S. Court of Customs and Patent Appeals; Appeal 5535
United States value-allowance for profit and general expenses-Testi-
mony of the importer's witness that markup of $2.00, included in the
selling price of the imported merchandise, covered profit and "whatever
expenses are involved in this business" held insufficient to establish the
proper allowance for profit and general expenses under sec. 402 (c) (1),
Tariff Act of 1930, as amended. A.R.D. 315_.

Merchandise-Reappraisements

Chemicals, C.D. 4416, R.D. 11775
Organs and parts, pipe, C.D. 4402

Pipe organs and parts, C.D. 4402

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279

301

Merchandise-Reviews

Animal feeds, A.R.D. 315

Boats, yachts and pleasure, A.R.D. 311

Chemicals, A.R.D. 314

Electrical equipment, A.R.D. 316

Equipment, vulcanizing, A.R.D. 312

Feeds, animal, A.R.D. 315

Metal articles, A.R.D. 313

Vulcanizing equipment, A.R.D. 312

Yachts, and pleasure boats, A.R.D. 311