#### Mager & Gougelman, Inc. *v.*United States

No. 6014.

Invoice dated Neuhaus, Germany, June 19, 1938.

Certified August 19, 1938.

Entered at Chicago, Ill., July 21, 1938.

Entry No. 517.

(Decided May 16, 1944)

*Tompkins & Tompkins*(J. *Stuart Tompkins*of counsel) for the plaintiff.

*Paul P. Rao,*Assistant Attorney General *(Dorothy C. Bennett, Richard E. Fitz-Gibbon, Richard H. Welsh,*and *Samuel D. Spector,*special attorneys), for the defendant.

Keeee, Judge:

These appeals for reappraisement involve the values of certain glass eyes imported from Germany. Finished glass eyes with blended iris were entered at reichsmarks .78 each and appraised at reichsmarks 1.00 each and glass eyes, unblended, were entered at reichsmarks .48 each and appraised at reichsmarks .60 each. Packing charges are extra.

At the trial it was established that the merchandise was entered on the basis of the export value of such glass eyes when sold to foréign wholesalers. The invoice papers disclose that the merchandise was appraised at the foreign value. The importer as well as the Government introduced in evidence price lists (exhibits 3 and 6, respectively). *466These price lists are the same, except for some slight difference in translation from the German to the English language. The price list covering the merchandise at issue submitted by the importer is translated as a *“Resale*price list for stock eyes * * * for delivery of artificial eyes for *resale*(wholesalers, distributors, opticians, doctors, and clinics),” while the Government’s translation of the same German heading reads:

*“Dealer*price list for stock eyes * * * for delivery of Artificial Eyes for *dealers*(wholesalers, distributors, opticians, doctors, and clinics).” The German word “Wiederverkaufer” was translated by the importer as meaning “resale” and by the Government as “dealer” or “dealers.” It is noted, however, that both the importer and the Government translate the word as “resellers” in the sentence reading: “For, delivery of stock eyes to *resellers*the members of the Lauscha Group are governed by the following minimum prices * * I do not believe it to be material whether the word “Wiederverkaufer” is translated to mean "resale” or “dealer.” The association of manufacturers of glass eyes set minimum prices at which such eyes could be sold to various groups of purchasers. The lowest price was, that offered to local dealers who were members of the manufacturers association. The next higher price was to the wholesalers other than the local dealers. The highest price was that offered to retail dealers, which included opticians, doctors, and clinics. The blended iris glass eyes sold to these three groups at reichsmarks .65, .75, and 1.00 respectively. The unblended iris sold at reichsmarks .40, .45, and .60, respectively. The export market was divided into two classes, the first to foreign wholesalers who were offered blended iris glass eyes at reichsmarks .78, aad the unblended at .48; and the second to retailers including opticians, doctors, and clinics. The prices for this'second group were the same as the foreign inland prices to retail dealers, to wit, reichsmark 1.00 and .60 respectively.

The appraiser determined that the merchandise imported herein was freely offered for sale in the usual wholesale quantities in the ordinary course of trade at the price to retailers. The importer has attempted to establish that deliveries in the home market at the prices returned by the appraiser were not in the usual wholesale quantities. The only evidence in that regard is that produced by witness Greiner who testified that when he was making glass eyes in Lauscha, Germany, he would sell from one to two, and sometimes three, to opticians and doctors, depending on how many eyes the patient ordered %from the doctor, and that he never sold more than that to doctors or hospitals or clinics. However, the witness was referring to a period 10 years before the dates of exportation here at issue. Witness McLaughlin also stated that glass eyes are sold 50 in a box as a minimum wholesale quantity and the price was the *467same whether the order was for 50 or 1,000. The Government report, exhibit 5, stated that the shipper of the merchandise herein considered from 200 to 500 as a wholesale quantity that was ordinarily ordered by wholesale buyers.

From a careful consideration of the record I am unable to find anything'to 'indicate the usual quantity in which this class of merchandise is bought and sold in the wholesale market of the country from which exported. I think that the prices offered to local dealers only, as well as the particular prices to outside dealers or wholesalers, were not free offers under section 402 because the glass eyes were nót offered to all purchasers at such prices. However, as far as the record discloses, the prices at which the glass eyes were offered to retail dealers were the prices at which anyone could buy, and these same prices also prevailed as to foreign purchasers. Clearly there is nothing to prevent the local dealers, or the outside wholesalers, or the foreign wholesalers, purchasing the blended iris glass eyes at reichs-marks 1.00 per piece, or the unblended at reichsmarks .60 per piece. All of these purchasers could not, however, purchase at lower prices, which were restricted to specific classes of purchasers.

I therefore find that the freely offered prices of these particular glass eyes, either for borne consumption or for export, are the prices returned by the appraiser. Judgment will therefore be rendered accordingly.