HQ 545560: Application for Further Review of Protest No. 1001-93- 101892; Sale for Exportation.

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 545560
                         October 14, 1994
CO:R:C:V  545560 er

CATEGORY: Valuation

Area Director
JFK Airport, New York

RE:  Application for Further Review of Protest No. 1001-93-
     101892; Sale for Exportation.

Dear Sir:

     This is in response to your memorandum dated February 7, 1994,
forwarding the above-referenced application, which was submitted by
the law firm of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, on behalf of
their client, [protestant] ("importer").

FACTS:

     The imported merchandise consists of wearing apparel
manufactured in Macau by [manufacturer].  The merchandise was
entered on September 8, 1992, and the entries were liquidated on
January 4, 1993.  The merchandise was appraised under transaction
value at the price paid by the importer to [party B] in Hong Kong. 
Protestant cites to two recent court decisions, Nissho Iwai
American Corp. v. United States, 932 F.2d 505 (Fed. Cir. 1992) and
Synergy Sport International, Ltd. v. United States, 17 C.I.T.    ,
Slip. Op. 93-5 (Ct. Int'l. Trade January 12, 1993), as support for
its claim that the merchandise should be appraised under
transaction value based upon the price paid to the manufacturer by
[party B] and that this transaction is the sale for exportation to
the United States.  Protestant states that the price between the
manufacturer and [party B] was negotiated at arm's length and was
free from non-market influences.  

     It is your position that because the importer has failed to
establish, via documentation, that the manufacturer's price to
[party B] is different from [party B's] invoice price and the
visaed invoice price, the basis for transaction value must be the
price paid by the importer to [party B].  

     The documents submitted with this protest include:  an invoice
from [party B] declaring an FOB Macau value of $x; Customs Form
5515 stamped with the textile export visa by the Economic
Department of Macau also stating an FOB Macau value of $x; a
certificate of origin issued by the government of Macau; a [party
B] packing list; and a declaration signed by the Manager of
[manufacturer] stating that the merchandise was subject to
manufacturing or processing operations in, and/or incorporates
material originating in, Macau and Hong Kong.  Counsel for
protestant states that the required documentation to support the
claimed appraisement may be obtained by contacting counsel at his
office.  No meeting was requested in the event of a decision
adverse to protestant.  

ISSUE:

     Whether the transaction between [party B] and the manufacturer
or the transaction between [party B] and the importer determines
the "price actually paid or payable" for the merchandise when sold
for exportation.

LAW AND ANALYSIS:

     At the outset it should be noted that documentation necessary
to support the claimed appraisement must be submitted with the
protest at the time of filing.  In this regard, it is not incumbent
on Customs to have to contact protestant, or counsel for
protestant, in order to obtain the supporting documentation after
the protest has been filed.  Section 174.13, Customs Regulations
(19 CFR 174.13) describes the information to be included with the
protest.  In pertinent part that section provides that the contents
of the protest shall contain "[t]he nature of, and justification
for the objection set forth distinctly and specifically with
respect to each category, payment, claim, decision, or refusal ..." 
Nonetheless, if protestant wants to submit additional grounds or
arguments after the date of filing, protestant may do so, in
accordance with Section 174.28 of the Customs Regulations (19 CFR
174.28).  That section provides that "[i]n determining whether to
allow or deny a protest ... a reviewing officer may consider
alternative claims and additional grounds or arguments submitted in
writing by the protesting party with respect to any decision which
is the subject of a valid protest at any time prior to disposition
of the protest..."  To date the only documentation submitted with
this protest is that described above.  Our review of this protest
is, accordingly, limited to the documentation contained in the
file. 

     The documentation submitted with this protest is insufficient
to support protestant's claimed appraisement.  Accordingly, in the
absence of any proof that the manufacturer's price is different
from the price reflected on [party B's] invoice and the visaed
invoice, we find that the appraising officer correctly based the
transaction value of the imported merchandise on the price that the
importer paid to [party B].

HOLDING:

     The documentation submitted does not support protestant's
claimed appraisement.  The appraising officer correctly based the
transaction value of the imported merchandise on the price paid by
the importer, xxxxxxxxxxx, to [party B].  You are, accordingly,
directly to deny the protest in full.

     In accordance with section 3A(11) 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 the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels.

                                   Sincerely,


                                   John Durant, Director
                                   Commercial Rulings Division