HQ 544847: Application For Further Review of Protest No. xxxx- xxxxxxxx, concerning the Appraisement of Battenburg Table Linen Based on Visaed Invoices

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 544847
                        September 3, 1993
VAL CO:R:C:V  544847 ER

CATEGORY:  Valuation

District Director
Great Falls, MT

RE:  Application For Further Review of Protest No. xxxx-
     xxxxxxxx, concerning the Appraisement of Battenburg
     Table Linen Based on Visaed Invoices

Dear Sir:

     This protest was filed against your appraisement decision in
the liquidation of an entry of Battenburg table linen made by
xxxxxxxxxxxxxxxxxxxx (hereinafter referred to as the "importer"). 
The merchandise was manufactured in China, and sold by
xxxxxxxxxxxxxxxxxxxxx (hereinafter referred to as the "seller").

FACTS:

     The subject importation consisted of 23,596.11 dozen and 43
sets of table linens.  Upon entry, the importer presented Customs
with two visaed invoices, issued by the seller, showing a total
of 43,196 dozen and 43 sets of table linens (23,196 dozen +
20,000 dozen).  The packing list and commercial invoices reflect
a total of 23,596.11 dozen articles and 43 sets.  The entered
value shown on the visas is $xxxxxxx (($xxxxxx + $xxxxxx) -
$xxxxxx non-dutiable charges) versus the $xxxxxxxxx entered value
($xxxxxxxxx - $xxxxxx non-dutiable charges) on the entry summary
(CF7501) and commercial invoices.  The total net weight shown on
the visas is 2,071.33 kilograms in contrast with the 1,752
kilograms shown on the packing lists.  Although one visa was
issued for 20,000 dozen linens made out of 100 percent cotton,
the packing list itemizes only table linens made out of 55
percent linen and 45 percent cotton.  The discrepancies between
the visas and the commercial invoices and packing lists leave
19,600 dozen articles, weighing 1752 kilograms with a value of
$xxxxxxxxx, unaccounted for on the entry summary.  Additionally,
none of the articles entered match the fiber content description
in the visa issued for the 20,000 dozen linens made out of 100
percent cotton.

     By written declaration dated July 25, 1991, the Vice
President of the importing company asserted that the articles
exported consisted of "55% Linen 45% Cotton 3596 11/12 dz & 43
sets [and] 100% Cotton 20,000 doilies" to the best of his
information, knowledge and belief.  The articles were entered on
July 29, 1991 and subsequently liquidated on October 4, 1991.


     The importer states that the amount shown on the visaed
invoice is incorrect and that "price paid" for the subject
merchandise was that shown on the commercial invoice.  By the
importer's account, a corrected visa was requested to cover the
linen articles being imported, but that through inadvertence the
number of dozens and the value of the shipment were not
corrected.  The importer does not indicate when the "corrected"
visas were requested or whether they were ever presented to
Customs.  By Customs' account, new visas were not obtained.

     The merchandise was appraised at the visaed invoice prices
totalling $xxxxxxxxxx.  The importer claims that excessive duties
in the amount of $xxxxxx were assessed and that the correct
appraisement of the goods should be at $xxxxxxxxx, the price
shown on the commercial invoice.

ISSUE:

     Whether the appraised value of the merchandise is properly
determined based on the visaed invoice price when the commercial
invoices and packing lists with inconsistent amounts and facts
are presented to Customs at the time of entry?

LAW AND ANALYSIS:

     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...."  Treasury Decision
(T.D.) 86-56, dated March 6, 1986, stated that:

     [A]ny differences or inconsistencies in the information
     contained in documents presented to Customs in
     connection with the importation of merchandise shall be
     considered as an indication that one or more of such
     documents contains false or erroneous information.  In
     such circumstances, the entry documentation will not be
     accepted by Customs but will instead be returned to the
     importer for correction.
          ... In situations where the visaed invoice or
     document presented to Customs (and necessary for the
     entry of the merchandise) contains erroneous value or
     price information, such invoice or document can only be
     corrected by the presentation to Customs of a new,
     corrected invoice or document stamped with the visa of
     the government of the country of origin.  Customs will
     not accept pro forma invoices in any case involving
     apparent differences in price or value information in
     the documents required to be submitted to Customs and
     which involve the production of a document which is
     required to contain a foreign country's visa. 
     (emphasis added)

     Instructions regarding the implementation of T.D. 86-56 were
issued by this office on May 1, 1986 (Headquarters Ruling No.
543731).  The instructions indicated that if an importer provides
an acceptable explanation for differences in the price or value
information in visas and invoices, then the entry may be accepted
by Customs.  Several examples were listed which set forth
acceptable scenarios in light of T.D. 86-56.  Although the list
was not exhaustive, the instructions stated that additional
legitimate reasons for differences in the entry documentation may
exist, and in these cases, Customs will act in accordance with
the policy set forth in T.D. 86-56.  As stated in C.S.D. 90-37
(HRL 544432, dated January 17, 1990), "the policy consideration
regarding the adoption of T.D. 86-56 is the proposition that
false or erroneous documents are not to be presented to Customs."

     T.D. 86-56 was also intended to place upon the importer the
burden of proving the validity of information on the documents
and veracity of the transaction in question in order to properly
appraise the merchandise.  See, HRL 544432.  The prescribed
method of correcting visaed invoices which contain incorrect
value or price information, as set forth in T.D. 86-56 (see
quoted language above), is the submission of corrected invoices
stamped with the visa of the government of the country of origin. 
To date, such corrected visaed invoices have not been presented
to Customs.  The written statements provided by the importer in
conjunction with this protest action, while sustaining its
submission of the facts, do not provide any evidentiary support
for the appraisement it requests.  Also see, HRL 544581, dated
February 25, 1991, (merchandise allowed entry where the visaed
invoices were inconsistent with other documentation was appraised
based upon the visaed invoice amounts.)  

     In view of the inconsistencies between the visaed invoices
and the commercial invoices and packing lists, and the failure of
the importer to present Customs with the documentation requisite
to explain the inconsistencies, we find that the appraised value
of the imported merchandise was properly determined using the
invoice prices as reflected in the visaed invoices.

HOLDING:

     Based on the foregoing, we find that the merchandise was
properly appraised using the amount on the visaed invoices for
the merchandise.  The values on the commercial invoices and
packing lists were inconsistent with those on the visaed
invoices, and neither an acceptable explanation of the
inconsistencies nor the requisite remedial documentation were
provided to Customs.

     Consistent with the decision set forth above, you are hereby
directed to deny the subject protest.  A copy of this decision 




should be attached to the Customs Form 19 and mailed to the
protestant as part of the notice of action on the protest.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division