#### Edgar Bros. Co. *v.*United States 1

United States Customs Court, Third Division

(Decided August 10, 1938)

*Charles D. Lawrence,*Acting Assistant Attorney General *(Samuel D. Spector*of counsel), for the defendant.

Before Clinb, Evans, and Kbbpb, Judges; Evans, J., not participating

1

 C. D.29.

Keefe, Judge:

The plaintiff claims that the collector illegally assessed duty upon an importation of seven used automobiles that were entitled to free entry as American goods returned under paragraph 1615 of the Tariff Act of 1930.

The facts shown by the entry papers and established at the trial are as follows: Edgar Brothers Co., engaged in the sale of automobiles, sold under conditional sales contract seven automobiles to Mexican purchasers. The export declarations establish that Edgar Brothers Co. was the exporter; that each of the purchasers was unable to continue making payments under the conditional sales contract and voluntarily surrendered the automobiles to a representative of the Edgar Brothers Co. who returned them to the United States; that all of the automobiles were entered in the name of Charles Woo Quong or the American Brokers Co. for the account of Edgar Brothers Co. and the importer had complied with all of the regulations of the Secretary of the Treasury.

The collector, however, determined that the automobiles had not been exported by the importer thereof and denied free entry under *109tbe American goods returned provision, liquidating tbe entries as dutiable.

In this court tbe plaintiff established that tbe automobiles were actually exported by tbe firm of Edgar Brothers Co. and that they were imported by or for tbe account of tbe same firm. Tbe question arises, however, whether or not tbe seller is actually tbe exporter, when tbe article purchased is taken from tbe United States by tbe purchaser. That question was passed upon by tbe Court of Customs and Patent Appeals in tbe case of *United States*v. *Gerardo Olivo,*20 C. C. P. A. 12, T. D. 45645. In that case a coffee machine was sold tbe appellee and tbe question arose concerning tbe identity of tbe exporter of tbe merchandise. Tbe court there stated that an order given by a foreign purchaser accompanied by payment before shipment is not sufficient to show that tbe foreign purchaser for whose account tbe goods were shipped abroad is tbe exporter within tbe meaning of paragraph 1514, Tariff Act of 1922.

Tbe situation here is entirely different from circumstances where an automobile is sold in tbe United States to a resident thereof, who, after gaining possession of tbe article, removes it from tbe United States to a foreign country, where it is repossessed by tbe seller and returned to tbe United States for his own account. There, tbe automobile clearly is not returned by or for tbe account of tbe exporter thereof. When selling tbe automobiles here in question, it was the intention of tbe plaintiff, under express agreements with tbe purchasers, that tbe automobiles be exported and that tbe purchasers act as tbe conveyors of tbe automobiles across tbe border into Mexico. Tbe sales were not consummated in tbe United States and thereafter exported to Mexico at tbe whim, of tbe purchasers upon their own responsibility. In such a state of facts as here presented, tbe seller becomes tbe exporter. It is of little consequence whether the manual act of transporting tbe automobiles across tbe border was accom-pbsbed by tbe purchasers or through tbe means of a commercial agency. Tbe act of exportation was executed under authority of tbe seller and that firm alone may be regarded as tbe exporter thereof. It is also fully established by tbe evidence that tbe automobiles were returned to tbe exporter thereof, to wit, tbe Edgar Brothers Co., without having been advanced in value or improved in condition by any process of manufacture or other means. Consequently, tbe automobiles are entitled to free entry as American goods returned when the regulations attending free entry are complied with as they have been in these entries.

For tbe reasons stated, judgment’will be entered in favor of tbe plaintiff, directing tbe collector to reliquidate tbe entries and to refund all duty taken.