HQ 545561: Application for Further Review of Protest No. 1001-93- 102017; 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 545561
                          October 14, 1994
CO:R:C:V  545561 er

CATEGORY: Valuation

Area Director
JFK Airport, New York

RE:  Application for Further Review of Protest No. 1001-93-
     102017; 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 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, on behalf
of their client, [protestant] ("importer").

FACTS:

     The imported merchandise consists of wearing apparel
manufactured in Hong Kong by various manufacturers.  The entries
were liquidated on February 5, 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.  

     On May 20, 1993, a CF 28 Request For Information was issued to
protestant requesting information necessary to substantiate
protestant's claimed appraisement.  A meeting was subsequently held
between your office and counsel for the importer on August 4, 1993. 
No documentary evidence was presented at that meeting to
substantiate protestant's claimed appraisement although you report
that counsel indicated a submission would be forthcoming within two
weeks.  To date no submission has been received.  It is your
position that the protest should be denied due to a lack of
documentary evidence supportive of protestant's claimed
appraisement.

     The documents submitted with this protest include:  a
carrier's certificate; invoices from [party B] declaring an FOB
value; export licenses; freight forwarder invoices; [party B]
packing lists; and declarations signed by the Directors of the
factories stating that the merchandise was subject to manufacturing
or processing operations in, and/or incorporates material
originating in, China 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, 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, xxxxxxx, to [party B].  You are, accordingly,
directed 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