Clayton Chemical & Packaging Co. v. United States, 383 U.S. 821 (1965)

383 U.S.
821
86 S.Ct. 1128
16 L.Ed.2d 288
CLAYTON CHEMICAL AND PACKAGING CO.

v.
UNITED STATES.
No. 890.
March 28, 1966.
John Joseph McDermott and John D. Rode, for petitioner.

Solicitor General Marshall, for the United States.
Joseph Schwartz, for the Association of the Customs Bar, New York,
N.Y., as amicus curiae.
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
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).
3
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, 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. National Labor Relations Board, 305 U.S.
364, 373, 59 S.Ct. 301, 307, 83 L.Ed. 221; Standard-Vacuum Oil Co. v. United
States, 339 U.S. 157, 70 S.Ct. 545, 94 L.Ed. 731. Compare American Propeller
& Mfg. Co. v. United States, 300 U.S. 475, 57 S.Ct. 521, 81 L.Ed. 751.
Reversed and remanded.

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Clayton Chemical & Packaging Co. v. United States, 383 U.S. 821 (1965)

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383 U.S.

CLAYTON CHEMICAL AND PACKAGING CO.

John Joseph McDermott and John D. Rode, for petitioner.

Petitioner brought a proceeding before a single judge of the Customs Court to

On appeal by the United States from a reappraisal favorable to petitioner, the

Reversed and remanded.

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