HQ 544033: Decision on Application for Further Review of Protest No. 1001-5-013012

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 544033

                                  November 25, 1988

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

          CATEGORY: Valuation

          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.












                                        - 2 -

               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