HQ 545013: Application for Further Review of Protest No. 2904-8-000120; dutiability of merchandise claimed to be missing

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 545013
                         October 8, 1992
VAL CO:R:C:V  545013 ILK
CATEGORY: Valuation

District Director
San Francisco District

RE:  Application for Further Review of Protest No. 2904-8-000120;
     dutiability of merchandise claimed to be missing

Dear Sir:

     The subject protest and application for further review
concerns the dutiability of merchandise which was invoiced but is
claimed to have been missing from the shipment.

FACTS:

     xxxxxx xxxx xxx xxxxxxxx (hereinafter referred to as the
"importer") imported men's wool suits from xxxxxx (hereinafter
referred to as the "seller") of Italy.  The invoice and the
packing and weight list from the seller indicate the sale and
shipment of 21 suits.  However the importer claims that upon
receipt of the merchandise, the shipment only contained 19 suits. 
The merchandise was entered on September 16, 1991.  The importer
paid duty on 19 suits.  The importer sent a letter dated
September 26, 1991 to Customs, stating that two of the 21 suits
had been stolen from the shipment.  On or about November 12,
1991, in response Customs sent a Form 29 to the importer pointing
out that a CF 5931 had not been filed and requesting
documentation substantiating the loss.  Customs agreed to hold
the entry for 20 days to allow the importer to submit additional
documentation.  

     The importer then provided Customs with a letter dated
November 12, 1991, from the importer's broker to the shipping
company, reporting the loss and stating that the shipment boxes
appeared to have been tampered with.  The importer has also
provided a letter dated January, 1992 from Alaska Airlines, 
which acknowledges the importer's claim, but does not make any
determination as to compensation for the loss.  

     Customs did not allow a reduction in value, and upon
liquidation on December 27, 1991, duty was assessed on the total
payment for 21 suits. 

ISSUE:

     Whether the importer is entitled to a reduction of the
appraised value of imported merchandise based upon the
unsubstantiated claim that some of the merchandise was missing
upon receipt.

LAW AND ANALYSIS:

     There is no dispute that transaction value, pursuant to
 402(b) of the Tariff Act of 1930, as amended by the Trade
Agreements Act of 1979 (TAA), is applicable.  Transaction value
is defined by TAA  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 402(b)(1)
(A) through (E).

     There is no documentation to substantiate the importer's
claim that it received only 19 suits as opposed to 21 suits. 
Documentation from the seller, the shipper or its insurer
acknowledging and providing compensation for the loss of the two
suits may have been sufficient to substantiate the importer's
claim.  The importer has failed to file a Customs Form 5931
pursuant to 19 CFR 158 subpart A, which may also have been
sufficient documentation that only 19 suits were imported.      
     
     There is nothing to substantiate that the importer received
only 19 suits.  There is no evidence indicating that the price
actually paid or payable by the importer was less than the
invoice price.  Consequently, we have no basis to authorize any
allowance in the appraised value of the imported merchandise
because of the alleged loss of two suits.

HOLDING:

     No allowance can be made in the appraised value of imported
merchandise where it is claimed that a portion of the merchandise
was lost or stolen but no documentation is presented to
substantiate such claim.

     Consistent with the decision set forth above, you are hereby
directed to the subject protest.  A copy of this decision should
be attached to the Customs Form 19 mailed to the protestant as
part of the notice of action on the protest. 

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division