It is also important to observe that in toy cases it is not uncommon that "the probative effect of the sample imports, themselves, is such as not only to prove the original classification to have been erroneous, but also to provide a sufficient basis to establish the propriety of the asserted classification." United States v. New York Merchandise Co., supra, 58 CCPA at 59, 435 F.2d at 1319. See also e.g., United States v. Sears, Roebuck & Co., 27 CCPA 235, 238, C.A.D. 91 (1940); New York Merchandise Co. v. United States, 62 Cust. Ct. 38, 41, C.D. 3671, 294 F. Supp. 971, 974 (1969); Louis Marx & Co. v. United States, supra, 65 Cust. Ct. at 674-5; B. Shackman & Company v. United States, 67 Cust. Ct. 372, 383, C.D. 4300 (1971). Particularly relevant on this aspect is Wilson's Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967), where the court held, primarily on the basis of the sample imports, that the government's classification of certain nodding head dog-like figures as toy figures of animate objects under item 737.40 of the tariff schedules was erroneous. In finding that the articles were not toys, the court made the following comments that bear repetition here (id. at 40-1):

*** [A]s is especially true in toy cases, the sample merchandise can offer potent evidence on the question of use, and when in harmony with the other evidence of record, can permit the drawing of inferences as to use nationally. Fred Bronner Corp., supra. There is precedent under the two previous tariff acts for viewing sample evidence as sufficiently persuasive to rebut the presumption of correctness on a toy classification and to shift the burden to the defendant. United States v. The Halle Bros. Co., 20 CCPA 219, T.D. 45995; United States v. Borgfeldt & Co., 13 Ct. Cust. Appls. 620, T.D. 41461.

We are inclined to the view that the present case presents one of those occasions where the sample merchandise itself supplies the necessary persuasiveness to carry the issue for the plaintiff, at least when the presumptive correctness of the collector's classification stands unsupported. The presence of a sharp and rather easily exposed hook renders the merchandise patently unusable by children of tender years. As for those over puberty, the articles represent essentially passive, uncomical, almost nonmanipulatable, yet finely finished replicas of well-known dog species. As such they are eminently suitable for purposes of display or ornamentation, no matter where that may be, and substantially incapable of functioning as objects of play or amusement in any normal or intelligent use. It is not a question of their appearing more suitable for one use than another as was the case in Fred Bronner Corp., supra, but of their offering mute testimony of their substantial incapability of use as classified. This type of potent evidence when in harmony with all other evidence presented satisfies the court that a shift in burden on this issue has taken place.

With these considerations in mind, the court must conclude on the basis of an examination of a sample illustrative of the importations

570-865-75—11

in the present case that the importations are not toys, i.e. articles chiefly used for the amusement of children or adults, but rather are chiefly used for Christmas ornamental purposes.

The sample consists of an inflatable image of a plastic, stylized Santa Claus figure (measuring about 10 inches in length when inflated) which is contained in an inflatable plastic "ball" about 1212 inches high and 8 inches thick when inflated, with the figure attached to the ball by a small tube.2 The ball has a transparent plastic face or front on which is imprinted in gold, red and green a Santa Claus in a sleigh drawn by eight reindeer. Further, the ball has an opaque white plastic back on the inside of which is inscribed "Merry Christmas." The top, sides and bottom of the ball are also composed of opaque, white plastic, and on the top portion there are imprinted 12 sprigs of green and gold holly leaves with red berries. On the outside back of the ball near the top there is a tab with a hole in it for the purpose of hanging. At the bottom circumference of the ball there is a round disc about 311⁄2 inches in diameter which enables the ball to stand in an upright position. Contained on the back of the ball are two plastic nozzles; one for inflating the Santa Claus figure and the other for inflating the ball.

This sample, with its obvious and pronounced identification with Christmas; with the Santa Claus figure; with the typical Christmas colors (white, gold, green and red); with its reindeer, sleigh and holly sprig designs; with its elaborate decorative effects; with a tab for hanging and a flat bottom disc to enable it to stand upright; identifies it in the strongest way as being an attractive Christmas holiday season decoration and not a toy. In short, it must be concluded from an examination of the sample, that the importations are eminently suitable for purposes of Christmas ornamentation and entirely unsuitable as objects of play or amusement in normal use.

In harmony with the conclusion that the importations are Christmas ornaments and not toys is the testimony of the manager of plaintiff's import department. To the extent relevant, her testimony was to the following effect: She has observed the imported articles' use on a number of occasions in the Philadelphia, Pennsylvania area—and in the States of New York, New Jersey, Illinois and Nevada. In this connection, she had seen the article used only during the Christmas season at which time she observed it in the Christmas decoration departments of various stores and in people's houses where it was suspended by the tab on the back from the ceilings, windows or doorways as a Christmas decoration. She had never seen the article used as a plaything.

Contrary to the foregoing testimony was the testimony of the wife of a Customs Service import specialist at the port of Philadelphia.

• While the article containing the Santa Claus figure is referred to as a "ball," actually its configuration when inflated resembles that of a round cushion or a rounded pill.

She testified that one of her five children had received a Santa Claus contained in an inflatable ball as a Christmas present; that her threeyear-old and one-year-old child had played with it like a ball and referred to it as a toy; that the article lasted about two weeks after which it started to deflate; and that she had never seen anybody else use the article. This testimony, however, cannot be given much weight considering that the witness had seen the article used by her children for only two weeks. Further, such sporadic use by these children is scarcely decisive of the nature of the article particularly in light of the fact that not everything that a child plays with or that amuses a child is a toy. See e.g., Illfelder v. United States, 1 Ct. Cust. Appls. 109, 111, T.D. 31115 (1910).

In summary, it is held that the importations in issue are properly classifiable under item 772.97 as other Christmas ornaments. Plaintiff's claim is therefore sustained and judgment will be entered accordingly.

(C.D. 4567)

SANFORD STEEL PIPE PRODUCTS Co. v. UNITED STATES

Metals and alloys (welding fittings)

EXPORT VALUE-FREELY OFFERED PRICE

In order to establish that the prices at which an exporter makes a single sale constitute the export value of the merchandise, it is incumbent upon the importer to prove that the merchandise was freely offered for sale at such prices to all purchasers at wholesale for exportation to the United States.

EXPORT VALUE-FREELY OFFERED PRICE-WILLINGNESS TO SELL

The mere willingness of an exporter to sell at specified prices, unaccompanied by price lists or evidence of overt communications with prospective customers, is insufficient to establish that the merchandise was freely offered for sale at such prices to all purchasers at wholesale for exportation to the United States.

[Judgment for defendant.]

Court No. R68/6142

Port of Chicago

(Decided November 15, 1974)

Allerton deC. Tompkins for the plaintiff.

Carla A. Hills, Assistant Attorney General (James Caffentzis, trial attorney), for the defendant.

MALETZ, Judge: This action concerns the correct dutiable value of certain unfinished welding fittings that were exported from West

Germany in April 1967 by the manufacturer, H. Siekmann & Co., Bunde (Westf), West Germany, and entered by the plaintiff-importer at the port of Chicago in June 1967.

The merchandise was appraised by the government on the basis of export value as defined in section 402 (b) of the Tariff Act of 1930, as amended (19 U.S.C. § 1401a(b)). In making the appraisement, the government rejected the invoice prices as representing export value and adopted higher values. Plaintiff, while agreeing that export value is the proper basis of appraisement, insists that such value is represented by the invoice prices, i.e., the c.i.f. prices, less a pro-rated amount for ocean freight, seaway tolls and marine insurance. Thus, the issue is whether plaintiff has established by a preponderance of the evidence that its claimed values represent the proper export value for the merchandise in issue.

The pertinent provisions of section 402 of the Tariff Act of 1930, as amended (19 U.S.C. § 1401a) are as follows:

(b) EXPORT VALUE.-For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States.

(f) DEFINITIONS.-For the purposes of this section

*

(1) The term "freely sold or, in the absence of sales, offered for sale" means sold or, in the absence of sales, offered

(A) to all purchasers at wholesale, or

(B) in the ordinary course of trade to one or more selected purchasers at wholesale at a price which fairly reflects the market value of the merchandise,

without restrictions as to the disposition or use of the merchandise by the purchaser, except restrictions as to such disposition or use which (i) are imposed or required by law, (ii) limit the price at which or the territory in which the merchandise may be resold, or (iii) do not substantially affect the value of the merchandise to usual purchasers at wholesale.

At the outset, it is undisputed that the merchandise is not on the final list; that the quantities herein ordered for the merchandise in question (carload lots) were the "usual wholesale quantities"; that the principal market in West Germany for the sale of such or similar merchandise for export value purposes was in Bunde (Westf), West Germany; and

that there was no corporate or family relationship between the importer and exporter. Beyond that, the following additional facts were established by the record: 1 During the years 1966 and 1967, plaintiff was the only United States buyer of unfinished welding fittings from the exporter, Siekmann. However, there was no exclusive agreement of any kind between Siekmann and the plaintiff and thus plaintiff was not a selected purchaser within the meaning of section 402 (f) (1) (B).2 Sales made by Siekmann to plaintiff were without restrictions of any kind as to the disposition or use of the merchandise by the latter. The prices shown on the invoices were, with one exception, the actual purchase prices.3 Further, the importations in issue were shipped in partial fulfillment of an order placed by plaintiff on November 4, 1966 and accepted by Siekmann on November 21, 1966. In this circumstance, the present controversy involves a single sale made by Siekmann to plaintiff.

In order to establish that the prices at which Siekmann made this single sale constituted the export value for the merchandise, plaintiff was required to prove that the merchandise was freely offered for sale at such prices to all purchasers at wholesale for exportation to the United States. United States v. Malhame & Co., 19 CCPA 164, 171, T.D. 45276 (1931); United States v. Manahan Chemical Co., Inc., 24 CCPA 53, 62, T.D. 48333 (1936); L. H. Graves v. United States, 61 Cust. Ct. 580, 583, A.R.D. 242, 287 F. Supp. 611, 614 (1968). Against this background, the record contains no proof whatever as to how merchandise such as that in issue was offered to other purchasers at wholesale at the time of exportation to the United States. Ordinarily, a freely offered price can be established by the existence of a manufacturer's price list freely circulated to the trade. See Judson Sheldon International Corporation v. United States, 51 Cust. Ct. 374, 378 R.D. 10586 (1963), aff'd, 54 Cust. Ct. 773, A.R.D. 183 (1965). However, the testimony of Mr. Takiff, plaintiff's general

1 The record consists of the testimony of Sanford Takiff, general manager of plaintiff ; an affidavit of Edwin Klein, sales manager of the exporter, Siekmann, that was executed in 1970; and a certified report of a customs representative relating to an interview he had in 1966 with Klein and the export manager of Siekmann. It is to be observed that 28 U.S.C. 2635 (b) (1970) provides in part that where the value of merchandise is in issue, reports of customs officers and affidavits of other persons whose attendance cannot reasonably be had, may be admitted in evidence when served upon the opposing party in accordance with the rules of the court.

"A selected purchaser situation within the meaning of section 402 (f) (1) (B) results when a seller restricts his sales to one or more specifically designated purchasers. See e.g., Aceto Chemical Co., Inc. v. United States, 51 CCPA 121, 127, C.A.D. 846 (1964); C. H. Powell Co., Inc. v. United States, 67 Cust. Ct. 493, 498, n. 3, R.D. 11752 (1971), aff'd, 69 Cust. Ct. 257, A.R.D. 307 (1972).

3 The exception is that the invoices showed that the pro-rated amount for costs incurred for ocean freight, seaway tolls and marine insurance totaled DM 5,070.95, while plaintiff's proof established that the total costs for these claimed deductions totaled DM 4,491.91.