CO:R:C:V 545138 ER
District Director
Detroit, Michigan
RE: Application For Further Review of Protest No.
xxxxxxxxxxxxxx concerning the Appraisement of Portable
Modular Containment Facility and Request for a Duty
Refund.
Dear Sir:
This protest was filed by A.N. Deringer, Inc. on behalf of
its client, xxxxxxxxxxxxxxxxxxxxxxxxx (hereinafter referred to as
"protestant"), against your appraisement decision in the
liquidation of an entry of a portable modular containment
facility. The merchandise was manufactured in Canada by
xxxxxxxxxxxxxxxxxxxxxxxxxx.
FACTS:
The subject importation consists of an a portable modular
containment facility. The merchandise was entered on March 28,
1990, and the entry was liquidated on July 6, 1990, based on the
stated total invoice price ($xxxxxxx) less certain non-dutiable
charges. On September 5, 1990 protestant filed the subject
Protest and Application for Further Review (CF 19) requesting a
refund for duty overpayment which protestant claims occurred due
to an inadvertent value overstatement of the merchandise
totalling $89,699. The overstatement is said to include (1)
amounts for items previously shipped to the U.S. on February 14,
1990 ($xxxxx), and for which duty was separately paid; (2)
amounts paid to sub-contractors who performed on-site work in the
U.S. ($xxxxxx); (3) travel expenses in the U.S. ($xxxxxx); and
(4) co-ordination and supervision expenses ($xxxxxx). Protestant
claims that the correct value for duty purposes of the imported
merchandise should be $xxxxxx, and not $xxxxxxx.
In response to Customs' request for substantiating
documentation, protestant provided copies of various documents
including invoices, letters, purchase orders, crate shipment
lists, and foreign assembler's declarations and certifications.
Even though reference is repeatedly made to "contract" jobs in
the documentation submitted, by protestant's account, no formal
contracts existed and all work was performed pursuant to purchase
order.
ISSUE:
Whether it is proper to appraise merchandise based on the
invoice price and to deny a request for a duty refund?
LAW AND ANALYSIS:
The primary basis of appraisement under the valuation
statute, 402 of the Tariff Act of 1930, as amended by the Trade
Agreements Act of 1979 (TAA), is transaction value. Transaction
value is defined by TAA section 402(b)(1) as "the price actually
paid or payable for the merchandise when sold for exportation to
the United States..." plus certain additions specified in
402(b)(1)(A) through (E).
The price actually paid or payable is defined in section
402(b)(4)(A) of the TAA as the "total payment, . . . made, or to
be made, for the merchandise by the buyer to . . . seller." The
price actually paid or payable does not include those charges,
costs, or expenses incurred for transportation, insurance, and
related services incident to the international shipment of the
merchandise from the country of exportation to the place of
importation in the United States.
Section 484(a), Tariff Act of 1930, as amended (19 U.S.C.
1484(a)), requires importers to file with Customs such
documentation as is necessary to enable Customs "to assess
properly the duties on the merchandise..." It is well settled
that the importer has the burden of proving the validity of
information on entry documents and the veracity of a transaction
in question in order to properly appraise the merchandise. See,
C.S.D. 90-37 (HRL 544432 dated January 17, 1990, referring to
Treasury Decision (T.D.) 86-56, dated March 6, 1986).
Protestant claims that the value of the subject shipment was
overstated by $xxxxxx; however, protestant has not provided
Customs with sufficient evidence to substantiate its claim.
Protestant has not submitted records reflecting payment of the
expenses for the amounts claimed to be associated with sub-
contracting performed in the U.S., breakdown of travel and
related expenses, or a breakdown of those amounts allegedly
attributable to payments made for co-ordination and supervision
work. Further, submitting copies of entry documents filed in
connection with a February 1990 importation of biological
containment hoods does not prove that the value of such
merchandise was inadvertently added to the subject shipment.
As stated above, it is incumbent upon the
importer/protestant to make and prove its case. In order for
Customs to properly assess the merits of a claim sufficient
evidence must be provided. Protestant has failed to submit
adequate records to warrant Customs granting the request for a
duty refund, nor has protestant adequately explained how the
documents it has provided relate to or prove its case.
HOLDING:
Based on the foregoing, we find that the merchandise was
properly appraised based on the stated invoice value. In view of
protestant's inability to provide Customs with satisfactory proof
of its claim, the refund request is denied.
Consistent with the decision set forth above, you are hereby
directed to deny the subject protest. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision should
be mailed by your office 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