HQ 545395: Application For Further Review of Protest No. 1001-92- 106060 concerning the Appraisement of Men's Leather Shoes and Request for a Duty Refund.

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 545395
                        September 30, 1993
CO:R:C:V  545395 ER

CATEGORY:  Valuation

Area Director
JFK Airport
New York, New York

RE:  Application For Further Review of Protest No. 1001-92-
     106060 concerning the Appraisement of Men's Leather
     Shoes and Request for a Duty Refund.

Dear Sir:

     This protest was filed by Joseph R. Schmidt, a broker, on
behalf of Rio Inc. (hereinafter collectively referred to as
"protestant"), against your appraisement decision in the
liquidation of an entry of men's leather shoes.  The merchandise
was manufactured in Italy by Ikam Italia.

FACTS:

     The subject importation consisted of 1307 pairs of men's
leather footwear.  The merchandise was entered on March 15, 1992,
and liquidated on July 6, 1992, based on the invoice price.  On
September 25, 1992, protestant filed the subject Protest and
Application for Further Review (CF 19) requesting a refund for
duty overpayment.  It is claimed by protestant that said
overpayment occurred due to the fact that the subject entry was
wrongly appraised using the stated invoice value without making
deductions for non-dutiable charges.  

     On February 25, 1993, Customs sent a Request for Information
(CF 28) to protestant requesting the purchase order, proof of
payment and an explanation of the non-dutiable charges claimed. 
Protestant failed to furnish the information requested, citing to
the manufacturer's lack of cooperation as the explanation for
such failure to respond.  Protestant subsequently advised Customs
that it could not provide a correct breakdown of the non-dutiable
charges.

     Protestant contends that because the invoice identifies the
shipping terms as "landed duty and MPF paid", amounts for
freight, insurance, duty and MPF should have been deducted from
the invoice value.  Customs disagrees on the basis that the
claimed non-dutiable charges were neither reflected on the
invoice nor asserted at entry.  Customs further points out that
the amounts for international freight charges and insurance that
were claimed in the protest were different than the charges
identified on the air way bill.  These charges, in turn, were 
different than the charges shown on the entry summary.  At no
time has protestant been able to reconcile these differing
amounts.

ISSUE:

     Whether it is proper to appraise merchandise based on the
invoice price, and to deny a request for a duty refund, where the
non-dutiable amounts claimed are neither separately identified on
the invoice nor asserted at entry, and where protestant is unable
to provide a correct breakdown of the claimed non-dutiable
charges? 

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
402(b)(1)(A) through (E).  

     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).  The words
"landed duty MPF paid" on the invoice are meaningless unless the
non-dutiable amounts claimed are ascertainable.  Such amounts
were not identified or claimed at the time of entry; hence,
Customs was correct to appraise the merchandise based on the
invoice price.

     To date, protestant is unable to provide a correct breakdown
of non-dutiable charges.  Still unresolved are the
inconsistencies between the international freight charges and
insurance claimed with the protest and those charges reflected on
the air way bill and on the entry summary.  Protestant could not
produce documents requested by Customs which might have enabled a
determination to be made as to whether any non-dutiable charges
were included in the price paid.  Hence, Customs is unable to
determine whether any portion of the stated price on the invoice
is non-dutiable.  The written statements provided by protestant
in conjunction with this protest action, while sustaining its
submission of the facts, do not provide any evidentiary support
for its position.   In view of protestant's failure to meet its
burden of proof, the protest is denied.

HOLDING:

     Based on the foregoing, we find that the merchandise was
properly appraised using the invoice price.  In view of
protestant's inability to provide Customs with a correct
breakdown of the claimed non-dutiable charges or to furnish any
other evidence to substantiate its claims, the refund request is
denied.

     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