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HQ 545138
October 19, 1993
CO:R:C:V 545138 ER

CATEGORY: VALUATION

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

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

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