United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1995 HQ Rulings > HQ 545500 - HQ 545716 > HQ 545561B

Previous Ruling Next Ruling

---

HQ 545561
October 14, 1994
CO:R:C:V 545561 er

CATEGORY: VALUATION

Area Director
JFK Airport, New York

RE: Application for Further Review of Protest No. 1001-93- 102017; Sale for Exportation.

Dear Sir:

This is in response to your memorandum dated February 7, 1994, forwarding the above-referenced application, which was submitted by the law firm of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, on behalf of their client, [protestant] ("importer").

FACTS:

The imported merchandise consists of wearing apparel manufactured in Hong Kong by various manufacturers. The entries were liquidated on February 5, 1993. The merchandise was appraised under transaction value at the price paid by the importer to [party B] in Hong Kong. Protestant cites to two recent court decisions, Nissho Iwai American Corp. v. United States, 932 F.2d 505 (Fed. Cir. 1992) and Synergy Sport International, Ltd. v. United States, 17 C.I.T. , Slip. Op. 93-5 (Ct. Int'l. Trade January 12, 1993), as support for its claim that the merchandise should be appraised under transaction value based upon the price paid to the manufacturer by [party B] and that this transaction is the sale for exportation to the United States. Protestant states that the price between the manufacturer and [party B] was negotiated at arm's length and was free from non-market influences.

On May 20, 1993, a CF 28 Request For Information was issued to protestant requesting information necessary to substantiate protestant's claimed appraisement. A meeting was subsequently held between your office and counsel for the importer on August 4, 1993. No documentary evidence was presented at that meeting to substantiate protestant's claimed appraisement although you report that counsel indicated a submission would be forthcoming within two weeks. To date no submission has been received. It is your position that the protest should be denied due to a lack of documentary evidence supportive of protestant's claimed appraisement.

The documents submitted with this protest include: a carrier's certificate; invoices from [party B] declaring an FOB value; export licenses; freight forwarder invoices; [party B] packing lists; and declarations signed by the Directors of the factories stating that the merchandise was subject to manufacturing or processing operations in, and/or incorporates material originating in, China and Hong Kong. Counsel for protestant states that the required documentation to support the claimed appraisement may be obtained by contacting counsel at his office. No meeting was requested in the event of a decision adverse to protestant.

ISSUE:

Whether the transaction between [party B] and the manufacturer or the transaction between [party B] and the importer determines the "price actually paid or payable" for the merchandise when sold for exportation.

LAW AND ANALYSIS:

At the outset it should be noted that documentation necessary to support the claimed appraisement must be submitted with the protest at the time of filing. In this regard, it is not incumbent on Customs to have to contact protestant, or counsel for protestant, in order to obtain the supporting documentation after the protest has been filed. Section 174.13, Customs Regulations (19 CFR 174.13) describes the information to be included with the protest. In pertinent part that section provides that the contents of the protest shall contain "[t]he nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal ..." Nonetheless, if protestant wants to submit additional grounds or arguments after the date of filing, protestant may do so, in accordance with Section 174.28 of the Customs Regulations (19 CFR 174.28). That section provides that "[i]n determining whether to allow or deny a protest ... a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writing by the protesting party with respect to any decision which is the subject of a valid protest at any time prior to disposition of the protest..." To date the only documentation submitted with this protest is that described above. Our review of this protest is, accordingly, limited to the documentation contained in the file.

The documentation submitted with this protest is insufficient to support protestant's claimed appraisement. Accordingly, in the absence of any proof that the manufacturer's price is different from the price reflected on [party B's] invoice, we find that the appraising officer correctly based the transaction value of the imported merchandise on the price that the importer paid to [party

HOLDING:

The documentation submitted does not support protestant's claimed appraisement. The appraising officer correctly based the transaction value of the imported merchandise on the price paid by the importer, xxxxxxx, to [party B]. You are, accordingly, directed to deny the protest in full.

In accordance with section 3A(11) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling