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HQ 545735

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January 31, 1995

VAL CO:R:C:V 545735

CATEGORY: VALUATION

District Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044-3130

RE: Application for Further Review of Protest No. 2304-94- 100052; 19 USC 1500

Dear Director:

This is a decision on an application for further review of a protest filed January 23, 1994, against your decision concerning the appraisement of fresh cilantro. The entry was liquidated on November 19, 1993.

FACTS:

On July 7, 1993 fresh cilantro from Mexico was imported by Cano Produce Co. of Harlingen, TX. Although the goods were shipped on consignment, an invoice dated July 7, 1993 from Fruteria "Lopez" to Cano shows a total price of $4010.00, that is 401 crates at $10.00 each. The invoice did not indicate the quantity of bunches imported per crate.

It is our understanding, however, that the customs broker (the protestant) subsequently submitted an amended invoice indicating a quantity of thirty (30) bunches per crate. You explain that the amendment was not presented with the Customs Form (CF) 7501 and that the protestant's evidence consists entirely of the subsequently amended invoice and a letter, in this regard, dated December 2, 1993 from the protestant to Customs. It is apparent that all concerned parties agree that the cilantro should be appraised based on the Dallas Wholesale Produce Report (Produce Report) which is distributed to licensed customs brokers throughout the Laredo District. The produce values for cilantro from July 7, 1993 to July 13, 1993 are as follows:

Bunches per crate Price

30 bunches $3.90

60 bunches $7.80

90 bunches $10.40

You appraised the goods at $10.40 per crate, the price applicable to importations of ninety bunches per crate. The protestant submits that the goods should be appraised at $3.90 per crate, the price applicable to importations of thirty bunches per crate.

ISSUE:

Whether the protestant has proffered sufficient evidence to prove that Customs unreasonably ascertained the value of the goods by using the price applicable to importations of ninety bunches of cilantro per crate.

LAW AND ANALYSIS:

Section 500 of the TAA, codified at 19 U.S.C. 1500, provides the general authority under which Customs appraises merchandise. Section 500(a) states that the appropriate Customs officer shall, under rules and regulations prescribed by the Secretary:
appraise merchandise by ascertaining or estimating the value thereof, under section 1401a of this title, by all reasonable ways and means in his power, any statement of cost or costs of production in any invoice, affidavit, declaration, other document to the contrary notwithstanding . . . .

The Statement of Administrative Action further provides that:

[s]ection 500 allows Customs to consider the best evidence available in appraising merchandise . . . . [It] authorize[s] the appraising officer to weigh the nature of the evidence before him in appraising the imported merchandise. This could be the invoice, the contract between the parties, or even the recordkeeping of either of the parties to the contract.

The concerned parties agree with the method of appraisement under 19 USC 1401a. Additionally, the parties concur that it is necessary to resort to the values provided for cilantro in the Produce Report. Accordingly, in this case, the appropriate Customs officer appraised the merchandise at the Produce Report prices for importations of ninety bunches per crate.

Based on the facts presented, especially in light of the fact that the protestant has not provided any evidence indicating that at the time of entry the importations were designated as thirty, as opposed to ninety, bunches per crate, we find that the protestant has not proffered sufficient evidence to prove that Customs unreasonably ascertained the value of the imported merchandise. We also recognize that the original invoice price of $10.00 per crate is consistent with the Produce Report prices for importations of ninety bunches, utilized by the appraising officer. Under authority of section 500, the appraising officer appropriately considered all the evidence made available by the protestant and used "all reasonable ways and means in his power" to appraise the merchandise.

HOLDING:

The protestant has not proffered sufficient evidence to prove that Customs unreasonably ascertained the value of the goods by using the price applicable to importations of ninety bunches of cilantro per crate.

You are directed to deny this protest. A copy of this decision with the Form 19 should be sent to the protestant.

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 to the protestant 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 to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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