HQ 545314: Application for further review of Protest No, 1001-82-012671

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 545314

                          June 10, 1994



VAL CO:R:C:V 545314 CRS

CATEGORY:  Valuation

District Director
U.S. Customs Service
Hemisphere Center
Routes 1 & 9 South
Room 200
Newark, NJ 07114

RE:  Application for further review of Protest No, 1001-82-012671

Dear Madam:

     This is in reply to an application for further review (AFR)
of the above referenced protest, filed on November 12, 1982, by
counsel Sharetts, Paley, Carter & Blauvelt, on behalf of GMB
Universal Joints, Inc. (the protestant).  The AFR was forwarded to
this office through the Customs Information Exchange (CIE) on
October 31, 1985; however, we have no record of having received
the file.  Pursuant to a review of aged suspense files, the AFR
was resubmitted by the CIE under cover of a memorandum dated May
7, 1993.  We regret the delay in responding.

FACTS:

     The protested merchandise consists of automobile parts
(universal joints and universal joint kits) and was manufactured
by Naniwa Semitsu Industry Co., Ltd., a company related to the
protestant.  Your office requested certain information from the
protestant in order to ascertain foreign and export values for the
protested merchandise.  Based on the information obtained it was
determined that the merchandise should be appraised at invoice unit
values plus 58.5 percent based on certain 1978 Naniwa Semitsu price
lists.

     Counsel for protestant contends that the price list obtained
by Customs does not represent prices at which the protested
merchandise was freely offered for sale for exportation to the
United States.  Moreover, counsel maintains:  (1) that the price
list used to appraise the merchandise does not represent prices at
which the merchandise was freely sold or offered for sale to the
United States; (2) that the price list was not current and
therefore should not have been used; (3) that the use of a uniform
addition to invoice value to establish appraised value is contrary
to law; and that (4) the invoice unit values in fact represent
statutory export values.

ISSUE:

     The issue presented is whether the protested merchandise was
correctly appraised under export value.

LAW AND ANALYSIS:

     The protested merchandise consists of certain automobile parts
(universal joints and universal joint kits).  Automobile parts are
specified on the final list pursuant to section 6(a) of the Customs
Simplification Act of 1956, approved August 2, 1956, T.D. 54521,
70 Stat. 948 (Public Law 927, 84th Cong.).  Merchandise specified
on the final list is appraised in accordance with section 402 of
the Tariff Act of 1930, as amended by section 2 of the Customs
Simplification Act of 1956 (19 U.S.C.   1402).

     Section 402(a) provides that the value of imported articles
designated on the final list shall be the higher of foreign value
or export value.  Foreign value is defined in pertinent part as
"the market value or the price at which such or similar merchandise
is offered for sale for home consumption to all purchasers in the
principal markets of the country from which exported, in the usual
wholesale quantities and in the ordinary course of trade...."  19
U.S.C.   1402(c).  In contrast, export value is defined in
pertinent part as "the market value or the price, at which such or
similar merchandise is freely offered for sale to all purchasers
in the country from which exported, in the usual wholesale
quantities and in the ordinary course of trade, for exportation to
the United States....  19 U.S.C.   1402(d).

     The file does not contain any information in regard to foreign
value.  Based on the information presented we are unable to
determine that foreign value existed and therefore this basis of
appraisement is eliminated from consideration.

     In regard to export value, counsel contends that the price
list used by Customs to determine the appraised value of the
protested merchandise does not reflect prices at which merchandise
was ever freely sold, or offered for sale, for exportation to the
United States.  In support of this counsel has submitted a
statement by the protestant that the price list was never
distributed and that no sales were ever made pursuant to it.  Even
had there been any sales, counsel notes that the list predates the
protested entries by as much as two years and that as a result it
is too remote in time from the entries to be used to appraise the
protested merchandise.  Furthermore, it is argued that a uniform
addition to the invoice value of imported merchandise for the
purpose of establishing appraised value is contrary to law.

     In C.B.S. Imports Corp. v. United States, 80 Cust. Ct. 61,
C.D. 4739, 450 F.Supp. 724 (1978), the issue was whether an
increase of 7.2 percent to the invoice price of imported
merchandise in order to reflect the appreciation of the Japanese
yen vis  vis the dollar following the collapse of the Bretton
Woods system, constituted a valid appraisement under export value. 
The Customs Court (now the Court of International Trade) stated
that export value could not be ascertained or estimated in this
manner.  Id. at 70.  Rather, the statute required that export value
be determined with respect to the prices at which the merchandise
was sold, or offered for sale.  Since the protested merchandise was
neither sold nor offered for sale pursuant to the Naniwa Semitsu
price lists, it was not correctly appraised on this basis.

     Consequently, based on the information presented it is our
position that the invoice unit values of the protested merchandise
represent the export value of the merchandise in accordance with
19 U.S.C.   1402(d).

HOLDING:

     Pursuant to the foregoing, the protest should be allowed in
full.  In accordance with section 3A(11)(b), Customs Directive 099
3550-065, dated August 4, 1993, this decision should be mailed by
your office to the protestant no later than sixty days from the
date of this letter.  Any reliquidation of the entry in accordance
with this decision must be accomplished prior to this time

                         Sincerely,





                         John Durant, Director