CLA-2 CO:R:C:V 544033 VLB

Area Director of Customs
U.S. Customs Service
6 World Trade Center
New York, NY 10048-0945

RE: Decision on Application for Further Review of Protest No. 1001-5-013012

Dear Sir:

This application for further review was filed against your decision to reliquidate entries made by the importer. The merchandise was appraised pursuant to section 402(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. 1401a; TAA).

The merchandise in question is ladies cotton wearing apparel that is imported from India. The limited information submitted in this case indicates that the merchandise was manufactured by Company A in Bombay, India. Company B, also located in Bombay, India, issued the invoices for the merchandise. The importer has informed Customs that there is no relationship between the importer and the manufacturer. However, there appears to be a relationship between the importer and Company B.

The entries at issue were liquidated in April, 1985, and were reliquidated in July, 1985. The importer protests the "reliquidation, reassessment and reappraisement" of the merchandise. The importer states the following:

These entries reliquidated (sic) at nearly three times the entered value due to the importer's alleged failure to respond to a Request for Information. This appraisement is arbitrary and not in accordance with any of the statutorily prescribed methods of appraisement. Pursuant to Ashland Chemical Co. v. United States, Slip Op. 84-71 (1984) (copy attached), this appraisement is unreasonable, contrary to law and thus clearly erroneous.

In addition, the importer contends that the invoice price represented the price actually paid or payable for the finished merchandise exclusive of buying commissions and third party quota charges. The importer did not submit any information to support its position.

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It is well settled that the burden is placed upon the importer to prove the existence of a bona fide agency relationship and that the amounts paid to the agent were, in fact, bona fide buying commissions. B & W Wholesale Co. v. United States, 58 CCPA 92, C.A.D. 1010, 436 F.2d 1399 (1971); New Trends, Inc. v. United States, 10 CIT ____, 645 F. Supp. 957 (1986). The failure to produce documentary evidence of a transaction, which is normally reduced to writing and would be indicative of agency status weakens the probative value. A & A Trading Corp. v. United States, 65 Cust. Ct. 685, A.R.D. 276 (1970).

In this case, the importer has failed to submit any evidence that would support its contention that it had a buying agency relationship with an Indian company or individual. Therefore, Customs cannot provide the requested relief for the alleged buying commissions. See, C.S.D. 88-19, 22 Cust. Bull. 844 (1988).

In addition, under the current rules, when an importer makes quota payments to an unrelated third party, the payments are not dutiable. C.S.D. 81-86, 15 Cust. Bull. 908 (1981). However, the importer in this case has failed to provide any information that shows the relationship between the parties, or the circumstances surrounding the alleged quota purchase. Consequently, Customs is unable to ascertain that these payments were made to a person other that the seller of the merchandise.

In sum, the importer has failed to submit any documentation or explanation supporting its claim. Therefore, you are directed to deny the protest. A copy of this decision should be attached to Form 19, Notice of Action, to be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

1 cc CO:R:C:V:VLB:LDC:11/22/88

Area Director of Customs
U. S. Customs Service
6 World Trade Center
New York, NY 1004-0945