the proper value for dutiable purposes of certain table cutlery, smokers' articles, and so forth.

The appeals have been submitted for decision upon a stipulation of the parties hereto, wherein it has been agreed as follows:

IT IS HEREBY STIPULATED AND AGREED, by and between the parties hereto, subject to the approval of the Court:

1. That on or about the date of exportation of the merchandise the subject of the appeals for reappraisement, enumerated on Schedule "A" hereto attached and made a part hereof, such or similar merchandise was not freely offered for sale for home consumption to all purchasers in the ordinary course of trade in the principal markets of Germany.

2. That on or about the date of exportation of the merchandise involved herein, such or similar merchandise was not freely offered for sale to all purchasers in the ordinary course of trade in the principal markets of Germany for exportation to the United States.

3. That on or about the date of exportation of the merchandise involved herein, such or similar imported merchandise was not freely offered for sale for domestic consumption in the principal markets of the United States to all purchasers in the ordinary course of trade.

4. With regard to the items marked "A" and initialed RM (Examiner's Initials) by Examiner Robert Muir (Examiner's Name) on the invoices covered by the above-entitled appeals, the cost of production as defined in Section 402 (f) of the Tariff Act of 1930 is equal to the indicated Deutsche mark figures noted in green ink, less 33%, less 3%, less 4%, plus the proportionate part of the export packing as indicated on the invoice.

5. With regard to the items marked "B" and initialed RM (Examiner's Initials) by Examiner Robert Muir (Examiner's Name) on the invoices covered by the above-entitled appeals, the cost of production as defined in Section 402 (f) of the Tariff Act of 1930 is equal to the invoiced unit values, in United States dollars, net, packed.

Upon the record before the court, I find and hold that cost of production, as that value is defined in section 402a (f) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165 (19 U.S.C. § 1402(f)), is the proper basis of value for the articles in issue and that such value is as indicated in paragraphs 4 and 5 of the quoted matter, supra. As to all other merchandise, the appeals for a reappraisement, having been abandoned, are dismissed.

Judgment will issue accordingly.

(Reap. Dec. 10274)

J. OSSOLA CO., INC. v. UNITED STATES

Used steel drums-Export value

Reappraisement R58/28305 and 15 others

Entered at New York, N.Y.

Entry No. 797350, etc.

(Decided June 19, 1962)

Lane, Young & Fox for the plaintiff.

Joseph D. Guilfoyle, Acting Assistant Attorney General, for the defendant.

LAWRENCE, Judge: The appeals for a reappraisement, enumerated in the schedule attached to and made a part of the decision herein, involve the proper value for dutiable purposes of certain used steel drums.

The parties hereto have entered into a stipulation of fact, wherein it has been agreed as follows:

IT IS HEREBY STIPULATED AND AGREED, by and between counsel for the parties hereto, subject to the approval of the Court, as follows:

1. That the merchandise covered by each of the appeals for reappraisement, enumerated in Schedule A hereto attached, consists of used steel drums filled with olive oil and exported from Tunisia to the United States.

2. That on or about the relevant dates of exportation of said used steel drums, the price at which such or similar used drums was freely sold or, in the absence of sales, offered for sale in the principal markets of Tunisia, 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 expenses incident to placing the merchandise in condition, packed ready for shipment to the United States, was $4.00 (U.S.) per drum.

3. That the question of the dutiable value of the used drums involved herein is the same as that decided in United States v. E. R. Squibb & Sons, et al., 42 C.C.P.A. (Customs) 23, C.A.D. 564.

Upon the record before the court, I find and hold that 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, 91 Treas. Dec. 295, T.D. 54165 (19 U.S.C. § 1401a (b)), is the proper basis of value for the steel drums in issue and that such value is $4 (U.S.) per drum.

Judgment will be entered accordingly.

(Reap. Dec. 10275)

UNITED CHINA & GLASS COMPANY v. UNITED STATES

Coffeepots

Reappraisement 276091-A and 276092-A

Entered at New Orleans, La.

Entry Nos. 1640; 1212.

(Decided June 22, 1962)

Stein & Shostak (Marjorie M. Shostak, of counsel) for the plaintiff.

Joseph D. Guilfoyle, Acting Assistant Attorney General (Samuel D. Spector, trial attorney), for the defendant.

DONLON, Judge: At the term of court in New Orleans on May 1, 1962, these cases were consolidated and submitted on the following statement and stipulation of record:

MR. SPECTOR: *** I'd like to say that we agree to stipulate

that the

price at which this merchandise is freely offered for sale, and sold in the United States, in the principal markets of the United States, and the usual wholesale quantity in the ordinary course of trade, is as follows:

For the two-cup size, $8.522 per doz. packed; and for the four-cup size it's $11.835 per dozen, packed; and that is the value that we agreed upon.

MR. SPECTOR: It is hereby stipulated and agreed by and between counsel that there is no merchandise freely offered for sale in Belgium, and in the principal markets of Belgium, in the usual wholesale quantities, and in the ordinary course of trade, for home consumption.

It is further stipulated and agreed that in the principal markets of Belgium, such or similar merchandise is not freely offered for sale in the ordinary course of trade, and in the usual wholesale quantities, for export to the United States. MISS SHOSTAK: Plaintiff so stipulates.

JUDGE DONLON: That stipulation is made of record.

MISS SHOSTAK: And plaintiff further stipulates to the United States value as stated by government counsel.

Plaintiff further stipulates that the merchandise was exported prior to February 28, 1958, and the values referred to are values under Section 402 of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938. MR. SPECTOR: Government so stipulates.

Accepting these stipulations as an agreed statement of facts, I find and hold that United States value, as defined in section 402 of the Tariff Act of 1930, effective on the dates the merchandise was entered or withdrawn from warehouse for consumption, is the proper basis for determining the values of the merchandise covered by the entries in these appeals for reappraisement, namely, coffeepots in sizes for two cups and four cups, and that such value for the two-cup size coffeepot is $8.522 per dozen, packed, and for the four-cup size coffeepot $11.835 per dozen, packed.

As to all other merchandise, these appeals for reappraisement are dismissed.

Judgment will be entered accordingly.

DECISIONS OF THE UNITED STATES

CUSTOMS COURT

Applications for Review

(A.R.D. 139)

UNITED STATES v. C. J. TOWER & SONS

Rubber-tipped bobby pins

The merchandise covered by this action consists of patented rubber-tipped bobby pins, imported from Canada. These bobby pins were appraised on the basis of export value. Appellee contends said bobby pins should be appraised on the basis of cost of production.

PRESUMPTION OF CORRECTNESS-BURDEN OF PROOF

In reappraisement proceedings, a statutory presumption of correctness attaching to the appraised value must be overcome by the party challenging the correctness (28 U.S.C. § 2633). Appellee herein, having failed to overcome this presumption, held the values found by the appraiser are deemed correct. SIMILARITY-PATENTS

The mere fact that a patent is issued covering the controverted merchandise does not ipso facto negate similarity for the determination of customs valuation.

SIMILARITY-CRITERIA

Similar merchandise, as used in section 402, Tariff Act of 1930, relates to merchandise of approximately the same price, approximately the same materials, adapted to the same use, and may be substituted therefor. H. J. Heinz Company v. United States, 43 C.C.P.A. (Customs) 128, C.A.D. 619; United States v. Wecker & Co., 16 Ct. Cust. Appls. 220, T.D. 42837; United States v. Thomas & Co., 21 C.C.P.A. (Customs) 254, 260, T.D. 46788.

William H. Orrick, Jr., Assistant Attorney General (Samuel D. Spector, trial attorney), for the appellant.

Barnes, Richardson & Colburn (Joseph Schwartz of counsel) for the appellee.

(683)

Before LAWRENCE, RAO, and FORD, Judges

FORD, Judge: The appeals for reappraisement enumerated in schedule "A," hereto attached and made a part hereof, relate to certain rubber-tipped bobby pins, imported from Canada. The bobby pins were attached to cards which contained 18, 24, 54, or 72 pins.

The case is before us at this time to review the decision of the trial court in C. J. Tower & Sons v. United States, 44 Cust. Ct. 532, Reap. Dec. 9579, wherein it was held that the proper basis of appraisement is cost of production, as defined in section 402 (f) of the Tariff Act of 1930.

The parties have agreed that there was no foreign value applicable to the merchandise involved, as that term is defined in section 402(c) of the Tariff Act of 1930, as amended. There is no dispute that the merchandise was appraised on the basis of export value, which value is defined in section 402 (d) of said act.

Appellee herein contends that there existed no export or United States value, within the meaning of said terms, as defined in section 402, supra, at the time of exportation herein and that the proper basis of appraisement of the merchandise herein is cost of production, as defined in section 402 (f) of said act.

Mr. Samuel Tick testified on behalf of the importer herein that he had a patent for this type of bobby pin in Canada, the United States, and Great Britain and that there was no other manufacturer of rubber-tipped bobby pins in Canada.

The record establishes that the importer herein had eight agents who were assigned designated territories in the United States. They were to sell the involved merchandise only within the confines of the territory assigned to them. The agreement also provided that all sales must be accepted by the manufacturer in Canada. The manufacturer sold only to wholesalers and chain and variety stores. One wholesaler was selected in each city in which the product was sold and only 18 chain or variety stores, out of approximately 96 chain or variety stores known to the witness, were sold or offered the imported merchandise. Mr. Tick testified that, in addition to this, he had occasion to refuse to sell merchandise to certain customers because they did not maintain the retail price stamped on each card of bobby pins. On this point, there appears to be some conflict, since the report of the Treasury attaché, received in evidence as defendant's exhibit A, states that Mr. Tick made the following statement: "He stated, however, that he is unable to police this situation and knows of many instances where his pins were offered for sale at less than the prices shown on the cards and no objection was made by him." When confronted with this, the witness denied having made such a statement and again indicated that he