us-cbp-cross-rulings-hq-544292•HQ 544292: Decision on Application for Further Review of Protest No. 3801-6-001165
HQ 544292: Decision on Application for Further Review of Protest No. 3801-6-001165
us-cbp-cross-rulings-hq-544292HQ 544292: Decision on Application for Further Review of Protest No. 3801-6-001165Guidance
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 544292
February 21, 1989
CLA-2 CO:R:CV:V 544292 VLB
CATEGORY: Valuation
District Director of Customs
Detroit, Michigan 48226-2568
RE: Decision on Application for Further Review of Protest
No. 3801-6-001165
Dear Sir:
This protest was filed against your decision in the
liquidation of various entries made by -----------------------, a
lumber distributor (hereinafter referred to as the
"distributor"). The merchandise was appraised pursuant to
sections 402(b) and (c) of the Tariff Act of 1930, as amended by
the Trade Agreements Act of 1979 (19 U.S.C. 1401a(b) and
(c);TAA).
FACTS:
The merchandise in question is waferboard (particle board)
that is manufactured in Canadian mills. The valuation of
Canadian waferboard is the subject of numerous protests arising
out of the various importers' manner of doing business. In this
case the distributor sold the merchandise to Carter Stores
(hereinafter referred to as the "U.S. purchaser"), a party
related to the distributor under section 402(g) of the TAA.
The import specialist has provided an explanation of the
method of appraisement. He states that he considered the sale
between the distributor and the related U.S. purchaser to be the
sale that most directly caused the merchandise to be exported to
the U.S. Then, due to the fact that the distributor/U.S.
purchaser sale was a related party transaction, the import
specialist examined whether the relationship between the parties
influenced the price of the merchandise. Specifically, he
compared the distributor/U.S. purchaser sales to other
distributor's sales to unrelated U.S. purchasers. If the price
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of the related sale approximated the price in the unrelated
sales, the distributor's price was accepted.
On the other hand, if there was not a close approximation
between the prices, the imported specialist concluded that the
relationship had influenced the price of the merchandise. As a
result, these entries were appraised under section 402(c) of the
TAA, transaction value of identical or similar merchandise. The
appraisements were based on sales of similar merchandise by
unrelated distributors, less nondutiable charges.
The distributor contends that the merchandise should be
appraised under section 402(b) of the TAA. The distributor
further alleges that the transaction value for the merchandise is
the price the distributor paid the Canadian manufacturer for the
goods. The distributor states that the terms of sale between it
and the manufacturer are "F.O.B. Mill". The merchandise is then
shipped to a reload center in Windsor, Canada "for redistribution
and export into the United States".
In addition, according to the distributor, the pro forma
invoices submitted to Customs contain prices that represent the
cost of the merchandise delivered to the reload center plus a
handling charge for the reload center. That is, when the
distributor receives the waferboard at the reload center, the
actual invoice price of the material (F.O.B. mill), the actual
freight in U.S. funds paid to the Canadian railway companies, and
the handling charge paid to the reload center are entered. The
distributor's computer then computes a daily average cost of
material at that point.
Subsequently, the distributor shows this average amount on
the pro forma invoices. Then, the rail freight is deducted to
arrive at an average mill price for the merchandise. The
distributor notes that the average mill price is slightly higher
than it originally pays the manufacturer because the freight
charges from the nearest mill are deducted on all pro forma
transactions.
ISSUE:
Whether transaction value is the proper method of
appraisement for the merchandise.
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LAW AND ANALYSIS:
The first issue involves what appraisement method should be
used to determine the value of the merchandise for duty purposes.
Transaction value, the preferred method of appraisement, is
defined in section 402(b) of the TAA as the "price actually paid
or paid or payable for the merchandise when sold for exportation
to the United States. . ." (emphasis added). In Headquarters
Ruling 554998 dated January 24, 1989, we held that if the
documentation shows that the distributor invoiced its customer at
the time the merchandise is exported from the reload center, or
shortly thereafter, transaction value is the proper method of
appraisement. Moreover, the transaction value is the price that
the U.S. customer paid to the distributor for the merchandise.
In the present case, the import specialist initially
determined that the price that the U.S. customer paid for the
merchandise was the proper transaction value. The distributor
has failed to present any evidence, e.g. commercial invoices,
that indicates that the import specialist was incorrect.
The import specialist then examined the acceptability of
the transaction value because the distributor and the U.S.
customer were related parties. Section 402(b)(2)(B) states the
following:
The transaction value between a related buyer and seller is
acceptable . . . if an examination of the circumstances of
the sale of the imported merchandise indicates that the
relationship between such buyer and seller did not
influence the price actually paid or payable;. . .
In determining whether the relationship between the parties
influenced the price of the goods, the buyer and the seller must
prove that although they are related, they buy and sell from one
another as if they are not related. There are two methods for
ascertaining whether the transaction value is acceptable. The
first method involves an examination of the circumstances of sale
of the imported merchandise to determine if the relationship
between the buyer and the seller influenced the price actually
paid or payable. The second method involves using a series of
test values as a basis of comparison to the transaction value.
If the transaction value closely approximates any one of the test
values, it will be accepted.
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In this case, the import specialist used the second method
to determine whether the transaction value was acceptable. As
discussed previously, in some entries the transaction value
closely approximated the test values and was accepted. However,
in many entries the transaction value was unacceptable.
The distributor has not provided any evidence that shows
that Customs incorrectly eliminated transaction value as the
proper appraisement method. In addition, the distributor has
failed to proffer any evidence that the transactions used to
appraise the merchandise did not meet the requirements of section
402(c) of the TAA, e.g. different quantities. Therefore, we hold
that Customs appraisement of the merchandise was proper.
HOLDING:
Transaction value is the proper method of appraisement in
the entries where the price actually paid or payable closely
approximates the test values. In those cases, the transaction
value is the price that the U.S. customer paid the distributor
for the merchandise.
Transaction value is an unacceptable method of appraisement
in the entries where the price actually paid or payable did not
closely approximate the test values. In those entries, the
proper method of appraisement is under section 402(c). The
appraisements should be based on previously accepted transaction
values for sales between another U.S. purchaser and an unrelated
distributor for identical or similar merchandise.
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
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