(Reap. Dec. 8959)

Entry No. 726272, etc.

#### S. S. Kresge Co. *v.*United States

(Decided August 9, 1957)

*Sharretts, Paley & Carter*for the plaintiff.

*George Cochran Douh,*Assistant Attorney General, for the defendant.

OliveR, Chief Judge:

The appeals for reappraisement, enumerated in schedule “A,” hereto attached and made a part hereof, relate to certain toys exported from Germany and entered at the port of New York.

The cases are before me on a written stipulation reading as follows:

> IT IS HEREBY STIPULATED AND AGREED between counsel that the merchandise covered by the appeals for reappraisement enumerated on Schedule A hereto attached and made a part hereof consists of toy clarinets, items 303/11 or 303/12, toy saxophones, item 303/13, or toy cornets, item 303/15, manufactured by Kohler & Blohberger and exported from Germany between April 20, 1952 and December 10, 1953.

> IT IS FURTHER STIPULATED AND AGREED that these articles are not first quality merchandise, but are second choice, having been manufactured from the cheapest kind of wood available, that is, so-called fire wood or kindling, and the cheapest grade of black sheet iron, nickel plated.

> *620IT IS FURTHER STIPULATED AND AGREED that the foreign value of these articles, as such value is defined in section 402 (c) of the Tariff Act of 1930 as amended, in the usual wholesale quantities and the ordinary course of trade in condition packed ready for shipment to the United States, including the cost of all containers and coverings of whatever nature, and all other costs, charges and expenses incident thereto, is as follows, and that if there is an export value for such merchandise, said export value is no higher:

> (For Merchandise Exported Between March 1, 1952 and March 1, 1953)

> Clarinets number 303/11 • — -$1.75 per dozen f. o. b. seaport

> Clarinets number 303/12 — 2.90 per dozen f. o. b. seaport

> Saxophones number 303/13 — ■ 2.90 per dozen f. o. b. seaport

> Cornets number 303/15 — 2.90 per dozen f. o. b. seaport

> (For Merchandise Exported Between March 1, 1953 and March 1, 1954)

> Clarinets number 303/11 —$1.75 per dozen f. o. b. seaport

> Clarinets number 303/12 — 2.90 per dozen f. o. b. seaport

> Saxophones number 303/13— 2.85 per dozen f. o. b. seaport

> IT IS FURTHER STIPULATED AND AGREED that the plaintiff herein furnished containers that had been manufactured in the United States and that the cost of such containers was as follows during the years 1952 and 1953:

> For clarinets number 303/11 — 70 per dozen

> For clarinets number 303/12 —130 per dozen

> For saxophones number 303/13 — 150 per dozen

> For cornets number 303/15 —150 per dozen

> IT IS FURTHER STIPULATED AND AGREED that these appeals for reappraisement be submitted on this stipulation.

On the agreed facts, I find statutory foreign value to be the proper basis for appraisement of the merchandise in question, as hereinabove identified, and hold such statutory value to be as follows:

(1) For the merchandise exported between April 20, 1952, and March 1, 1953, statutory foreign value for the different items under consideration is as follows:

> Clarinets number 303/11 — $1.75 per dozen f. o. b. seaport

> Clarinets number 303/12 — $2.90 per dozen f. o. b. seaport

> Saxophones number 303/13 — $2.90 per dozen f. o. b. seaport

> Cornets number 303/15 — $2.90 per dozen f. o. b. seaport

(2) For the merchandise exported between March 1, 1953, through December 10, 1953, statutory foreign value for the different items is as follows:

> Clarinets number 303/11 — $1.75 per dozen f. o. b. seaport

> Clarinets number 303/12 — $2.90 per dozen f. o. b. seaport

> Saxophones number 303/13 — $2.85 per dozen f. o. b. seaport

(3) The values hereinabove set forth include cost of containers as follows:

> For clarinets number 303/11 — 7 cents per dozen

> For clarinets number 303/12 — 13 cents per dozen

> For saxophones number 303/13 — 15 cents per dozen

> For cornets number 303/15 — 15 cents per dozen

Judgment will be rendered accordingly.