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HQ 224478


June 18, 1993

PRO-2-02-CO:R:C:E 224478 AJS

CATEGORY: PROTEST

District Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island
Room 2017
San Pedro, CA 90731

RE: Protest for further review number 2704-92-100103; tele- visions; Antidumping Duty Order A-588-015; 54 Fed. Reg. 35,517; 19 U.S.C. 1514(a)(2); 19 U.S.C. 1677h; C.S.D. 82-46; 19 U.S.C. 1514(c)(2)(A); 19 CFR 141.1(a); "accrued"; 19 CFR 353.37; Smith- Corona v. U.S.; foreign market value; U.S. price; 19 U.S.C. 1677a.

Dear District Director:

This is our decision in protest for further review number 2704-92-100103, dated January 7, 1992, concerning antidumping duties assessed on 100 televisions manufactured by Toshiba in Japan.

FACTS:

The subject televisions were manufactured in Japan, and purchased by the protestant in Singapore. It is claimed that no changes of any kind were made in Singapore. It is also claimed that the televisions were neither manufactured nor usable in the United States market. The televisions were subsequently shipped to the U.S., and then sold to Vietnamese distributors who shipped them outside the U.S. The entry summary indicates that the televisions were entered as a consumption entry.

The Department of Commerce (DOC) published the final results of its antidumping duty administrative review for Antidumping Duty Order A-588-015 on August 28, 1989. 54 Fed.

Reg. 35,517. The review covers television receiving sets (i.e., televisions) manufactured and/or exported by Toshiba. The review stated that the DOC would issue appraisement instructions for each exporter directly to the Customs Service. 54 Fed. Reg. 35,524. These instructions required Customs to assess a dumping liability equal to 35.40 percent of the U.S. Price for all shipments of televisions manufac- tured or exported by Toshiba and entered for consumption during the period of 03/01/86 - 02/28/90. The subject televisions were imported and entered for consumption on 08/16/86.

ISSUE:

Whether the subject televisions are subject to Antidumping Duty Order A-588-015.

Whether the protestant may export televisions on which antidumping duties have already accrued, and thus receive a refund of these duties.

LAW AND ANALYSIS:

19 U.S.C. 1514(a)(2) partially provides that decisions of the appropriate customs officer, including the legality of all orders and findings entering into the same, as to the classification and rate and amount of duties chargeable shall be final and conclusive upon all persons unless a protest is filed in accordance with this section (emphasis added). The subject protest involves the imposition of antidumping duties. Antidumping duties are treated as regular customs duties, except with respect to drawback (see 19 U.S.C. 1677h). See e.g., C.S.D. 82-46. Accordingly, the subject antidumping duties are protestable pursuant to section 1514.

A protest of a decision, order, or finding described in subsection (a) of section 1514 shall be filed with such customs officer within 90 days after but not before notice of liquidation or reliquidation. 19 U.S.C. 1514(c)(2)(A). In this case, the entry was liquidated on October 11, 1991, and the protest was filed on January 7, 1992. Therefore, the subject protest was timely filed.

Liability for duties accrues upon importation of the merchandise. 19 CFR 141.1(a). As stated previously, antidumping duties are treated as regular customs duties. Thus, the duties owed by the protestant became due and payable at the time of importation. As stated beforehand,
the televisions were imported on August 16, 1986. The protestant argues that the televisions are not subject to antidumping duties because they were subsequently exported from the U.S. This fact, however, does not terminate a liability which accrued upon importation. A liability which has accrued is vested (i.e., fixed, settled, or absolute). Black's Law Dictionary, 19 (5th ed. 1979). Accordingly, the protestant is liable for the antidumping duties which accrued upon importation even though they later exported the televisions.

The protestant claims that the subject televisions were not manufactured for, nor are usable in the U.S., and thus they could not be dumped in the U.S. Antidumping Duty Order A-588-015 applies to color televisions from Japan, and specifically those manufactured and/or exported by Toshiba. As stated earlier, the subject items are color televisions from Japan and Toshiba. Therefore, they are within the scope of the above Antidumping Duty Order.

The protestant additionally argues that the appraised value of the televisions should be calculated based on the price they paid for them in Singapore (i.e., $265.00 per unit). They cite to 19 CFR 353.47, which deals with the calculation of foreign market value, in support of their argument. Antidumping duties are calculated based on the amount by which the foreign market value exceeds the U.S. price for the merchandise. Smith-Corona Group, Consumer Products Division, SCM Corp., v. United States, 1 CAFC 130, 713 F. Supp. 1568 (1983). Foreign market value is calculated to generate an f.o.b foreign port value, while in this case the U.S. price is calculated based on what price the protestant paid for the merchandise. Therefore, the foreign market value of the merchandise and section 353.37 are not relevant for considering the price paid by the protestant in Singapore (i.e., the U.S. price).

Customs was instructed by the DOC to collect antidumping duties based on the U.S. price. The term "U.S. price" means the purchase price, or the exporter's sales price, of the merchandise, whichever is appropriate. 19 U.S.C. 1677a(a). The purchase price is the price at which merchandise is purchased, or agreed to be purchased, prior to the date of importation, from a reseller or the manufacturer or producer of the merchandise for exportation to the U.S. 19 U.S.C. 1677a(b). The purchase price is used where the importer is an unrelated party. Smith-Corona, p. 133. In this case, the protestant is an unrelated party who is independent of the foreign producer. Therefore, the purchase price of the merchandise should be used to calculate the U.S. price in this case.

19 U.S.C. 1677a(d)(2)(A) provides that the purchase price shall be reduced by the amount attributable to any additional costs, charges and expenses incident to bringing the merchandise from the place of shipment in the country of exportation to the place of delivery in the U.S. As stated earlier, the purchase price of the subject televisions was $265.00 per unit in Singapore. However, this price required the deduction of costs for insurance and freight to arrive at a reduced purchase price of $259.66 per unit. Therefore, the price of $265.00 cannot be used as the purchase price pur- suant to section 1677a(d)(2)(A). On the subject 100 televisions, the purchase price of $259.66 figure resulted in the assessment of $9,191.36 in antidumping duties.

HOLDING:

The protest is denied. The 100 imported televisions are subject to the antidumping duties of $9,191.36. These duties may not be refunded once the merchandise is entered for consumption. A copy of this decision should be attached to the Form 19 and provided to the protestant.

Sincerely,

John Durant, Director

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