The Customs Court held that petitioner was entitled to
reappraisal of the value of its imported product. The Court of
Customs and Patent Appeals reversed the judgment for petitioner. It
held that affidavits of petitioner's customers, on the basis of
which petitioner sought to obtain reappraisal, had been improperly
admitted by the Customs Court, and that there was no substantial
evidence to support petitioner's claim, the affidavits being
excluded from consideration. On petition for rehearing, petitioner
asked the Court of Customs and Patent Appeals to remand the case to
the Customs Court to enable petitioner to offer evidence to cure
the deficiency created by exclusion of the affidavits. The petition
for rehearing was denied.
Held: The Court of Customs and Patent Appeals erred in
failing to remand for further proceedings.
Certiorari granted; 52 C.C.P.A.(Cust.) 111, 357 F.2d 1009,
reversed and remanded.
PER CURIAM.
Petitioner brought a proceeding before a single judge of the
Customs Court to reappraise the United States value of a product
which it imported. The appraiser had relied upon the prices at
which petitioner sold the product to establish its value for
assessment of import duties. Petitioner offered in evidence certain
affidavits to show that most of its sales of the product were
for
Page 383 U. S. 822
experimental purposes and in experimental quantities, and hence
were not relevant to show
"the price at which such . . . imported merchandise is freely
offered for sale . . . in the principal market of the United States
to all purchasers . . . in the usual wholesale quantities and in
the ordinary course of trade. . . ."
Act of June 17, 1930, c. 497, § 402(e), 46 Stat. 708, as
amended, 19 U.S.C. § 1402(e) (1964 ed.).
Cf. United States v.
H. Muehlstein & Co., 42 Cust.Ct. 760 (1959).
Over objection of the United States that the affidavits were not
admissible, the judge received them in evidence. The ground for
admission of the affidavits was 28 U.S.C. § 2633 (1964 ed.), which
provides that, in reappraisement proceedings, "affidavits and
depositions of persons whose attendance cannot reasonably be had .
. . may be admitted in evidence." Relying on the affidavits, the
single judge found that most of petitioner's sales were for
experimental purposes. 49 Cust.Ct. 409 (1962).
On appeal by the United States from a reappraisal favorable to
petitioner, the Appellate Term of the Second Division of the
Customs Court held that the United States had not preserved its
objection to the admissibility of the affidavits. 52 Cust.Ct. 620
(1964). The United States appealed to the Court of Customs and
Patent Appeals. That court reversed the determination that the
United States had not preserved its objection. It held that the
affidavits were not admissible because petitioner had not shown
that the attendance of the affiants could not reasonably be had,
and agreed with the position of the United States that,
"with exclusion of the affidavits there is no substantial
competent evidence of record to rebut the statutory presumption
that the United States value of the imported merchandise was the
value found by the appraiser."
357 F.2d 1009, 52 CCPA(Cust.) 111, 120 (1965). The judgment of
the Customs Court was accordingly reversed,
Page 383 U. S. 823
Judges Smith and Rich dissenting. On petition for rehearing,
petitioner contended that, if the affidavits were inadmissible, it
was entitled to a remand to the Customs Court to enable it to fill
the evidentiary void created by the holding that the affidavits
were inadmissible. The petition was denied without opinion, Judges
Smith and Rich again dissenting. Because we conclude that
petitioner should have an opportunity to establish its contentions
by other types of evidence that may be available to it, we grant a
writ of certiorari, and reverse.
The Solicitor General suggests that the Court of Customs and
Patent Appeals may have deemed the affidavits and any evidence of
experimental use that petitioner might present on remand,
irrelevant to the question of United States value. The court did
not so hold, and the tenor of its opinion is to the contrary. The
Solicitor General also asserts that petitioner should have
requested a remand prior to its petition for rehearing. As appellee
in the Court of Customs and Patent Appeals, petitioner had no
reason to anticipate that, if the United States prevailed on the
admissibility of the affidavits, the court would nonetheless
proceed to consider the merits of the reappraisal claim without
affording petitioner an opportunity to present oral testimony in
lieu of the excluded affidavits. We hold that the Court of Customs
and Patent Appeals erred in refusing to remand the case to the
Customs Court for further proceedings.
Cf. Ford Motor Co. v.
Labor Board, 305 U. S. 364,
305 U. S. 373;
Standard-Vacuum Oil Co. v. United States, 339 U.
S. 157.
Compare American Propeller & Mfg. Co. v.
United States, 300 U. S. 475.
Reversed and remanded.