PRO-2-02-CO:R:C:E 224478 AJS
District Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island
Room 2017
San Pedro, CA 90731
RE: Protest for further review number 2704-92-100103; tele-
visions; Antidumping Duty Order A-588-015; 54 Fed. Reg. 35,517;
19 U.S.C. 1514(a)(2); 19 U.S.C. 1677h; C.S.D. 82-46; 19 U.S.C.
1514(c)(2)(A); 19 CFR 141.1(a); "accrued"; 19 CFR 353.37; Smith-
Corona v. U.S.; foreign market value; U.S. price; 19 U.S.C.
1677a.
Dear District Director:
This is our decision in protest for further review number
2704-92-100103, dated January 7, 1992, concerning antidumping
duties assessed on 100 televisions manufactured by Toshiba in
Japan.
FACTS:
The subject televisions were manufactured in Japan, and
purchased by the protestant in Singapore. It is claimed that no
changes of any kind were made in Singapore. It is also claimed
that the televisions were neither manufactured nor usable in the
United States market. The televisions were subsequently shipped
to the U.S., and then sold to Vietnamese distributors who shipped
them outside the U.S. The entry summary indicates that the
televisions were entered as a consumption entry.
The Department of Commerce (DOC) published the final results
of its antidumping duty administrative review for Antidumping
Duty Order A-588-015 on August 28, 1989. 54 Fed.
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Reg. 35,517. The review covers television receiving sets (i.e.,
televisions) manufactured and/or exported by Toshiba. The review
stated that the DOC would issue appraisement instructions for
each exporter directly to the Customs Service. 54 Fed. Reg.
35,524. These instructions required Customs to assess a dumping
liability equal to 35.40 percent of the U.S. Price for all
shipments of televisions manufac- tured or exported by Toshiba
and entered for consumption during the period of 03/01/86 -
02/28/90. The subject televisions were imported and entered for
consumption on 08/16/86.
ISSUE:
Whether the subject televisions are subject to Antidumping
Duty Order A-588-015.
Whether the protestant may export televisions on which
antidumping duties have already accrued, and thus receive a
refund of these duties.
LAW AND ANALYSIS:
19 U.S.C. 1514(a)(2) partially provides that decisions of
the appropriate customs officer, including the legality of all
orders and findings entering into the same, as to the
classification and rate and amount of duties chargeable shall be
final and conclusive upon all persons unless a protest is filed
in accordance with this section (emphasis added). The subject
protest involves the imposition of antidumping duties.
Antidumping duties are treated as regular customs duties, except
with respect to drawback (see 19 U.S.C. 1677h). See e.g., C.S.D.
82-46. Accordingly, the subject antidumping duties are
protestable pursuant to section 1514.
A protest of a decision, order, or finding described in
subsection (a) of section 1514 shall be filed with such customs
officer within 90 days after but not before notice of liquidation
or reliquidation. 19 U.S.C. 1514(c)(2)(A). In this case, the
entry was liquidated on October 11, 1991, and the protest was
filed on January 7, 1992. Therefore, the subject protest was
timely filed.
Liability for duties accrues upon importation of the
merchandise. 19 CFR 141.1(a). As stated previously, antidumping
duties are treated as regular customs duties. Thus, the duties
owed by the protestant became due and payable at the time of
importation. As stated beforehand,
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the televisions were imported on August 16, 1986. The protestant
argues that the televisions are not subject to
antidumping duties because they were subsequently exported from
the U.S. This fact, however, does not terminate a liability
which accrued upon importation. A liability which has accrued is
vested (i.e., fixed, settled, or absolute). Black's Law
Dictionary, 19 (5th ed. 1979). Accordingly, the protestant is
liable for the antidumping duties which accrued upon importation
even though they later exported the televisions.
The protestant claims that the subject televisions were not
manufactured for, nor are usable in the U.S., and thus they could
not be dumped in the U.S. Antidumping Duty Order A-588-015
applies to color televisions from Japan, and specifically those
manufactured and/or exported by Toshiba. As stated earlier, the
subject items are color televisions from Japan and Toshiba.
Therefore, they are within the scope of the above Antidumping
Duty Order.
The protestant additionally argues that the appraised value
of the televisions should be calculated based on the price they
paid for them in Singapore (i.e., $265.00 per unit). They cite
to 19 CFR 353.47, which deals with the calculation of foreign
market value, in support of their argument. Antidumping duties
are calculated based on the amount by which the foreign market
value exceeds the U.S. price for the merchandise. Smith-Corona
Group, Consumer Products Division, SCM Corp., v. United States, 1
CAFC 130, 713 F. Supp. 1568 (1983). Foreign market value is
calculated to generate an f.o.b foreign port value, while in this
case the U.S. price is calculated based on what price the
protestant paid for the merchandise. Therefore, the foreign
market value of the merchandise and section 353.37 are not
relevant for considering the price paid by the protestant in
Singapore (i.e., the U.S. price).
Customs was instructed by the DOC to collect antidumping
duties based on the U.S. price. The term "U.S. price" means the
purchase price, or the exporter's sales price, of the
merchandise, whichever is appropriate. 19 U.S.C. 1677a(a). The
purchase price is the price at which merchandise is purchased, or
agreed to be purchased, prior to the date of importation, from a
reseller or the manufacturer or producer of the merchandise for
exportation to the U.S. 19 U.S.C. 1677a(b). The purchase price
is used where the importer is an unrelated party. Smith-Corona,
p. 133. In this case, the protestant is an unrelated party who
is independent of the foreign producer. Therefore, the purchase
price of the merchandise should be used to calculate the U.S.
price in this case.
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19 U.S.C. 1677a(d)(2)(A) provides that the purchase price
shall be reduced by the amount attributable to any additional
costs, charges and expenses incident to bringing the merchandise
from the place of shipment in the country of exportation to the
place of delivery in the U.S. As stated earlier, the purchase
price of the subject televisions was $265.00 per unit in
Singapore. However, this price required the deduction of costs
for insurance and freight to arrive at a reduced purchase price
of $259.66 per unit. Therefore, the price of $265.00 cannot be
used as the purchase price pur- suant to section 1677a(d)(2)(A).
On the subject 100 televisions, the purchase price of $259.66
figure resulted in the assessment of $9,191.36 in antidumping
duties.
HOLDING:
The protest is denied. The 100 imported televisions are
subject to the antidumping duties of $9,191.36. These duties may
not be refunded once the merchandise is entered for consumption.
A copy of this decision should be attached to the Form 19 and
provided to the protestant.
Sincerely,
John Durant, Director