VAL RR:IT:VA 546012 LPF
Port Director
U.S. Customs Service
55 Erieview Plaza
Plaza Nine Building
Cleveland, OH 44114
RE: Application for Further Review of Protest No. 4101-93-100013; Price Actually Paid or Payable; 19 U.S.C. 1401a(b)(4)(A); Technical Assistance
Provided for Merchandise after Importation into the U.S.; 19 U.S.C. 1401a(b)(3)(A)(i); Apportionment of Value Between Liquidated and Unliquidated Entries; Extension of Liquidation under 19 U.S.C. 1504(b)
Dear Sir:
This is a decision on an application for further review (AFR) of a
protest filed on January 19, 1993, against a decision made by the former
District Director (DD) concerning the entry, appraisement, and classification
of various parts, components, and equipment imported for the construction of a
ladle metallurgy facility. The 21 entries at issue were liquidated on October
23, 1992.
FACTS:
MAN GHH Corporation (MAN), of Pittsburgh, PA, is a wholly owned
subsidiary of MAN Gutehoffnungshutte AG (MAN-AG), of Oberhausen, Germany.
These parties are related pursuant to section 402(g) of the Tariff Act of
1930, as amended by the Trade Agreements Act of 1979 (TAA), codified at 19
U.S.C. 1401a. MAN, who employs approximately 30 people, is the marketing and
service organization of MAN-AG for the United States. The various agreements
between MAN and the several companies comprising the MAN Group consist of
annual budgets agreed to between the parties. MAN-AG primarily is engaged in
the design, engineering and sale of industrial plants and machinery.
MAN served as importer of record for the parts, components, and
equipment imported for the construction of a ladle metallurgy facility bought
by LTV Steel Company (LTV) of Cleveland, OH. During the period of March, 1990
through December, 1991 and in January, 1992, MAN filed approximately 64
consumption entries for the metallurgy plant project. Forty-three of the
entries were liquidated as entered, for which no protests were filed.
The DD appraised the merchandise under transaction value, based on the
entire MAN-AG contract price. However, counsel asserts that appraisement
appropriately is based only on the portion of that price relating to the
imported merchandise, thus excluding amounts for engineering and similar
services concerning goods sourced and manufactured in the U.S. and, in some
instances, construction, assembly, and technical assistance pertaining to the
imported merchandise after its importation into the U.S. The course of events
ultimately leading to this AFR is summarized chronologically as follows.
In December, 1988, MAN and LTV entered into an agreement (MAN-LTV
contract) for the former to provide the latter, on a turnkey basis, a ladle
metallurgy facility. The facility would be incorporated as a station in a
existing steel mill and would improve the quality of the finished product by
de-gassing molten steel under vacuum conditions. Counsel provided a copy of
the "Minutes of Closing Meeting" (Minutes) which reflects the agreement
between these parties. Therein it states that MAN's undertaking to LTV is to
furnish "on a turn key' basis, all engineering, design, scheduling,
procurement, supervision, labor, materials, supplies, services, tools,
equipment, utilities, transportation, and plant, and do and perform all things
necessary in order to design, construct, start-up and make operable the Ladle
Metallurgy Facility." Section 1, Minutes. The MAN-LTV contract also
described the equipment, materials, labor and other services, collectively
referred to as "work," which MAN was to provide for LTV. In general, "work"
included all facility design and engineering, project management, labor,
construction, and erection; testing and supervision of the facility's start-up; and instruction of LTV's personnel in the operation and maintenance of the
facility. Section 1, Minutes.
The MAN-LTV contract did not separately break out the various costs,
such as those for equipment, engineering, and design. Because MAN was
providing LTV with a turn key operation, counsel explains that the MAN-LTV
contract set forth a payment schedule whereby a specified percentage of the
total contract price would be invoiced by MAN to be paid by LTV by certain
dates. Thus, MAN was not paid for specific components but for the completion
of certain phases or milestones within a predetermined schedule. Counsel
explains that, in essence, the LTV contract required MAN to provide a complete
package including the physical and tangible components of the facility,
together with any design, engineering, and labor enabling these components to
operate as a unit, along with any other necessary services.
Accordingly, in February, 1990, MAN and MAN-AG signed an Internal
Consortium Agreement (MAN-AG Contract). In the MAN-AG Contract, it was
acknowledged that MAN was contractually obligated to LTV under their
contractual agreement. Annex 1 to the MAN-AG Contract identifies and
describes the engineering services which MAN-AG provided to MAN. These
include: project management; conceptual engineering; engineering for
mechanical equipment, utilities supply, electrical energy supply,
instrumentation, and process computer system; basic engineering for steel
structures and civil part; documentation; and submission of technical
documents for approval. In addition, Annex 1 describes the supplies which
MAN-AG provided to MAN. These include: swivel joints, vacuum gate, vessel
lifting equipment, steel ropes for vessel lifting equipment, vessel exchange
frame, clamping screws, exchange compensator, TV monitoring system for VCP
vessel, sight glasses, refractories, check valves for vacuum pump, vacuum
measuring equipment, T&S lance equipment, snorkel clamping device, slag-free
tapping device, discharge feeders and vacuum feeders, system and standard
software, application software, and spare parts.
Annex 2 to the MAN-AG Contract specifies a payment schedule whereby
payments were not associated with the provision of any particular component or
service but rather with certain milestones tied into a predetermined time
schedule. Counsel explains that this was due to the fact that MAN was paid by
LTV on a similar schedule and did not have the funds to advance to its largest
subcontractors. The contract price agreed upon by the parties is described as
a "firm, fixed and a lump sum price."
On April 24, 1991 and February 4, 1992 Customs issued MAN Requests for
Information, Customs Form (CF) 28, including questions impacting on the
valuation and classification of the merchandise at issue. Subsequently, on
April 17, 1992, Customs issued MAN a Notice of Action, CF 29, proposing both
rate and value advances. With regard to value, Customs determined that
section 402(b) transaction value, based on the price agreed to by the parties
in the MAN-AG contract, was the appropriate basis for appraisement. However,
when providing a value for the merchandise upon entry, MAN declared a figure
amounting to about 1/3 of this contract price. A meeting between officials
from your office and MAN, followed by an exchange of correspondence,
culminated with MAN's submission detailing and documenting the disputed costs
and values.
On October 1, 1992, Customs issued a second CF 29 wherein Customs
adhered to its original appraisement determination. From the remaining amount
in dispute, undeclared at the time of entry, the DD allowed deductions for
software provided by MAN-AG, transportation costs and costs associated with
installation of the imported merchandise. After allowing these deductions the
DD assessed duty on the remaining amount by prorating this value over the
unliquidated entries.
Counsel disputes Customs' appraisement of the merchandise and asserts
that the majority of the contract price paid by MAN to MAN-AG does not pertain
to the imported merchandise. Instead, counsel explains that such amounts were
paid for engineering services and the like, relating to portions of the MAN-LTV contract which either were performed entirely in the U.S. or pertained to
goods sourced and manufactured in the U.S. Accordingly, counsel submits that
in order to arrive at the proper transaction value, the portion of the
contract payments unrelated to the imported goods first should be deducted
from the total payments made to MAN-AG under the contract. From this amount
counsel states that further deductions should be made for construction,
erection, technical assistance, transportation, Customs duties and related
fees pursuant to section 402(b)(3). The remainder then would constitute the
transaction value of the imported merchandise because it represents the sum
total of all payments to the seller for the imported merchandise. Counsel
acknowledges, however, that it is appropriate to add an amount for foreign
engineering assists to the net entered value for the merchandise. Your office
questions the accuracy of counsel's figures for engineering insofar as,
according to counsel, such figures accurately are reflected by the value "left
over" after deductions are made from the contract price.
Counsel has submitted various documentation in support of their
position. A "Summary Report" has been made available describing and itemizing
the cost of engineering and other services which MAN-AG performed with respect
to the "U.S. component" of the contract between MAN and LTV. The enumerated
services include: Time Scheduling, Technical Documentation, Reporting, Basic
Engineering, Detail Engineering, Software, and Supervision and Technical
Assistance. Counsel also has presented a cost breakdown reflecting each
invoice generated in connection with the MAN-LTV contract for services
rendered and parts and equipment provided by all sub-contractors of the LTV
contract. From the submitted documents counsel provides examples of
engineering services included on the MAN-AG Summary Report and ties them into
MAN's vendor purchase order list and actual purchase orders between MAN and
U.S. vendors of U.S. sourced equipment. Counsel therefore posits that these
documents demonstrate that pursuant to the MAN-AG contract, MAN-AG was paid
for engineering services which pertain to goods and services acquired from
U.S. based sources. In one case, counsel has tied MAN-AG's services into an
internal consortium agreement entered into between MAN and a domestic
corporation. Furthermore, a master list of drawings prepared for the project
by MAN-AG has been submitted which counsel traces to the U.S. vendors who used
the drawings in furnishing the domestically sourced goods and services.
Insofar as the "Summary Report" and correlations between the various
types of merchandise and engineering services are concerned, your office
agrees that some of the engineering is related to equipment built in the U.S.
and unrelated to the imported merchandise. However, your office presents
various instances where correlations likewise can be made between certain
engineering services enumerated on the Summary Report and the imported
merchandise.
In addition, counsel has submitted a project report containing MAN-AG's
budgeted and anticipated costs for obtaining equipment which it provided to
MAN. Counsel stresses that the amount MAN-AG budgeted and anticipated for
equipment in conjunction with the contract approximates the entered value for
the merchandise. According to counsel, this indicates that such an amount
(that is, the entered value, as opposed to the full contract price)
appropriately represents transaction value.
Furthermore, counsel takes issue with Customs' increase in value and its
application solely to the 21 entries at issue, rather than its apportionment
to the 64 entries concerning the entire metallurgy project.
With regard to the classification of the merchandise, the protestant
entered the merchandise under subheading 8454.90.0080, Harmonized Tariff
Schedules of the United States Annotated (HTSUSA), providing for "Converters,
ladles, ingot molds and casting machines, of a kind used in metallurgy or in
metal foundries, and parts thereof: Parts, Other," at a free rate of duty. It
was the DD's position that pursuant to General Rule of Interpretation (GRI) 1,
in applying Note 2(a) to Section XVI, HTSUS, that the goods appropriately were
classified in their applicable, respective tariff provisions providing for the
goods, as opposed to being classified in heading 8454.
Finally, counsel submits that the entries at issue were, pursuant to 19
U.S.C. 1504(b), liquidated by operation of law at the rate and value asserted
by the protestant at the time of entry. Specifically, it is counsel's
position that since the Notices of Extension, CF 4333A, issued by Customs do
not state a proper basis for extending liquidation, they are defective and the
entries at issue are deemed liquidated as entered.
ISSUES:
1. Whether the time period for liquidation properly was extended
pursuant to 19 U.S.C. 1504.
2. Whether the merchandise was appropriately appraised under transaction
value based on the entire MAN-AG contract price or on a portion of that price,
excluding amounts for engineering and similar services not connected to the
imported merchandise.
3. Whether the merchandise is classifiable within heading 8454, HTSUSA,
providing for converters, ladles, ingot molds and casting machines, of a kind
used in metallurgy or in metal foundries, and parts thereof, or within the
individual, respective headings providing for such merchandise.
LAW AND ANALYSIS:
1. Liquidation pursuant to 19 U.S.C. 1504
Initially, we note that this protest was timely filed pursuant to 19
U.S.C. 1514(c)(2)(A), insofar as the entries were liquidated on October 23,
1992 and the protest filed January 19, 1993. See 19 U.S.C. 1514(c)(3)
providing that a protest shall be filed within ninety days after notice of
liquidation.
Liquidation has been defined as "the final computation by the Customs
Service of all duties (including any antidumping or countervailing duties)
accruing on that entry." American Permac, Inc. v. United States, 10 CIT 535,
537 (1986). Generally, an entry of merchandise not liquidated within one year
from the date of entry of such merchandise, "shall be deemed liquidated at the
rate of duty, value, quantity, and amount of duties asserted at the time of
entry by the importer of record." 19 U.S.C. 1504(a). However, pursuant to
19 U.S.C. 1504(b) Customs may extend this period if: 1) information needed
for the proper appraisement or classification of the merchandise is not
available to the appropriate customs officer; 2) liquidation is suspended as
required by statute or court order; or 3) the importer, consignee, or his
agent requests such extension and shows good cause therefor.
In the present matter, Customs had the authority to extend the initial
one year time period for liquidation. The Customs "ACS entry archive" records
for the entries at issue indicate that liquidation was extended one or two
times, as appropriate, and the notices of extension were given to the importer
of record. It appears, in this case, that the extensions were made under "EXT
CDE 01" which meant that "information needed for the proper appraisement or
classification of the merchandise is not available to the appropriate customs
officer." See 19 U.S.C. 1504(b)(1); 19 CFR 159.12(a)(1)(i); St. Paul Fire &
Marine Ins. Co. [Carreon] v. United States, 799 F. Supp. 120 (CIT 1992),
rev'd, 6 F3d 763 (Fed. Cir. 1993). According to documents in the file, in
particular the CF 28s, 29s and correspondence between the DD and MAN, the
extensions of liquidation were proper because there were numerous questions
posed to the protestant concerning the classification and valuation of the
merchandise at issue.
Furthermore, we do not agree with counsel's contention that the Notices
of Extension were defective insofar as they did not state a proper basis for
extending liquidation. In this regard, section 159.12(b), Customs Regulations
(19 CFR 159.12(b)) provides that if the district director extends the time for
liquidation as provided above, he is required to promptly notify the importer
or the consignee and his agent and surety that the time has been extended and
the reasons for doing so.
In this case, the evidence provided sufficiently creates the presumption
that proper notice of extension was given. See, e.g., International Cargo &
Surety Insurance Co. (Data Memory Corp.) v. United States, 15 CIT 541, 779 F.
Supp. 174 (1991). Based on the submitted evidence, the protestant has failed
to rebut that presumption. We note that the case of Intercargo Insurance Co.
f/k/a International Cargo & Surety Co. (Genauer) v. United States, Slip Op.
95-37 (Ct. Int'l Trade, decided March 9, 1995), has been appealed and
currently is before the U.S. Court of Appeals for the Federal Circuit.
2. Appraisement pursuant to 19 U.S.C. 1401a
The preferred method of appraising merchandise imported into the U.S.
is transaction value pursuant to section 402(b) of the Tariff Act of 1930, as
amended by the Trade Agreements Act of 1979 (TAA), codified at 19 U.S.C.
1401a. Section 402(b)(1) of the TAA provides, in pertinent part, that the
transaction value of imported merchandise is the "price actually paid or
payable for the merchandise when sold for exportation to the United States"
plus the enumerated statutory additions. For purposes of this decision, we
have assumed the relationship between the parties did not influence the price
actually paid payable and that transaction value is the appropriate method of
appraisement.
The "price actually paid or payable" is defined in section 402(b)(4)(A)
of the TAA as the "total payment (whether direct or indirect, and exclusive of
any costs, charges, or expenses incurred for transportation, insurance, and
related services incident to the international shipment of the merchandise...)
made, or to be made, for the imported merchandise by the buyer to, or for the
benefit of, the seller."
Two recent court cases have addressed the meaning of the term "price
actually paid or payable." In Generra Sportswear Co. v. United States, 8 CAFC
132, 905 F.2d 377 (1990), the court considered whether quota charges paid to
the seller on behalf of the buyer were part of the price actually paid or
payable for the imported goods. In reversing the decision of the lower court,
the appellate court held that the term "total payment" is all-inclusive and
that "as long as the quota payment was made to the seller in exchange for
merchandise sold for export to the United States, the payment properly may be
included in transaction value, even if the payment represents something other
than the per se value of the goods." The court also explained that it did not
intend that Customs engage in extensive fact-finding to determine whether
separate charges, all resulting in payments to the seller in connection with
the purchase of imported merchandise, were for the merchandise or something
else.
In Chrysler Corporation v. United States, Slip Op. 93-186 (Ct. Int'l
Trade, decided September 22, 1993), the Court of International Trade applied
the Generra standard and determined that although tooling expenses incurred
for the production of the merchandise were part of the price actually paid or
payable for the imported merchandise, certain shortfall and special
application fees which the buyer paid to the seller were not a component of
the price actually paid or payable. With regard to the latter fees, the court
found that the evidence established that the fees were independent and
unrelated costs assessed because the buyer failed to purchase other products
from the seller and not a component of the price of the imported engines.
Accordingly, it has been our position that based on Generra, there is a
presumption that all payments made by a buyer to a seller are part of the
price actually paid or payable for the imported merchandise. However, this
presumption may be rebutted by evidence which clearly establishes that the
payments, like those in Chrysler, are completely unrelated to the imported
merchandise.
Furthermore, section 402(b)(3) provides that:
[t]he transaction value of imported merchandise
does not include any of the following, if
identified separately from the price actually paid
or payable...:
(A) Any reasonable cost or charge that is
incurred for-
(i) the construction, erection, assembly, or
maintenance of, or the technical assistance
provided with respect to, the merchandise
after its importation into the United States....
By examining the evidence submitted concerning the various types of
engineering and services included in the Summary Report, we believe counsel
has adequately shown that some of these payments are "completely unrelated" to
the imported merchandise or pertain to construction, assembly, or technical
assistance provided with respect to the merchandise after its importation. To
an extent, this is supported by the language included in the MAN-LTV and MAN-AG agreements referencing "facility design and engineering," "construction and
erection," "testing and supervision of the facility's start-up," "project
management," etc.
With regard to Time Scheduling (Item 1) we believe the nature of such
services, insofar as they are described as fabrication, transport to site,
erection, etc., are unrelated to the imported merchandise or, more accurately,
represent construction, erection or technical assistance provided after
importation of the merchandise. MAN's Internal Consortium Agreement with a
U.S. corporation (Corporation) responsible for performing the erection and
construction of the facility, along with the time-schedule prepared by MAN-AG
relating to the Corporation's fulfillment of its contract, serves as
persuasive evidence in this regard.
With regard to the Technical Documentation (Item 2), counsel has tied
some of these services, provided by MAN-AG, to equipment such as the ferro
alloy system, desulphurization system, lime system, and ladle transfer car,
which evidently was sourced and purchased in the U.S. However, it is our
understanding that some of these services likewise pertain to imported
equipment such as the vacuum equipment, vessel heating equipment, and
hydraulic system and control apparatus both incorporated in the ladle furnace.
Since we can correlate the technical documentation to the U.S. sourced as well
as foreign manufactured and subsequently imported merchandise, it was
appropriate for the appraising officer to find these services not "completely
unrelated" to the imported merchandise nor pertaining to construction,
assembly, or technical assistance concerning the merchandise after its
importation.
With regard to Reporting (Item 3) we believe that such services, which
are described as consisting of monthly status reports, updates and amendments
to the detailed time schedule and drawing progress and status reports, are
unrelated to the imported merchandise or may represent technical assistance
provided after importation of the merchandise. We are not aware of any
connection between the Reporting services and the imported merchandise.
Likewise, the Basic Engineering services (Item 4) consisting of the
integration of the equipment; investigation of detail situations; definition
of the arrangement of stairs, platforms and heat protections; and main pipe
and cable routes for the new equipment, all appear unrelated to the imported
merchandise and, more specifically, represent assembly or technical assistance
provided after importation. This is confirmed, in part, by our understanding
that in accordance with the drawings provided by MAN-AG, these services
largely relate to the layout or arrangement of the merchandise at the U.S.
facility.
With regard to the Detail Engineering (Item 5) we do not find that
counsel adequately has demonstrated that such services are completely
unrelated to the imported merchandise, or constitute construction, erection or
technical assistance provided with respect to the merchandise after its
importation. First, we understand that the mechanical engineering services
include calculation and definition of the equipment components, utility
consumptions including specific characteristic data and definition of
connection points, and power requirement for various electric drives. Some of
these services appear to relate to imported merchandise, particularly the
ladle furnace, nozzle for the ejector, template for the refractory lining, and
connection parts for the VCP vessel.
Second, the electrical engineering services include control diagrams,
control concept, signal exchange lists, circuit and terminal diagrams, list of
input and outputs, and control system flow charts. In our opinion, a relation
exists between these services and the imported merchandise including the
controllers; transformers; PLC cubicles holding electronic (I/O) cards which
are connected to different types of switches, relays, valves, and lights and
which transmit information to operate equipment; power strip (to which the I/O
cards are plugged into) which when connected to the power supply of the plant,
provides the electrical power; and other small electronic units which are used
to transfer signals to control valves.
Third, with regard to the instrumentation, the engineering includes
instrumentation diagrams, equipment specification, description of all
measuring equipment, arrangement drawings, circuit diagrams, data sheets for
all instruments and valves, and an instrument list. Insofar as MAN's
importations include a video camera monitoring system, television monitoring
equipment, and a host of measuring equipment such as laboratory devices for
chemical composition analysis and electronic measuring devices, we similarly
find a relation between these services and the imported merchandise.
Fourth, we find that the imported control apparatus, vacuum pumps,
piping and valves relate to the utility supply services. These services
include the definition of process related requirements for valves, pumps, etc.
as well as bills of material for piping, valves, etc. Fifth, a nexus
apparently exists between the imported computer equipment and computer
engineering services insofar as the services include development of the
process control computer system, hardware specification and system analysis
for application functions. Finally, because it is our understanding that some
of the German subcontracted engineering relates to the vacuum pump unit, we
find that a connection exists between some of these services and the imported
merchandise.
With regard to the Software (Item 6), insofar as it is classifiable
within heading 8524 as other recorded media and subject to a specific rate of
duty, such merchandise is not appraised for purposes of assessing an ad
valorem duty rate. Hence, amounts for engineering provided in connection with
the software have no relevance in this regard. See T.D. 85-124, issued August
7, 1985. However, we note for purposes of assessing any user fees, the value
of the merchandise would include the amounts attributed to the software. In
our opinion, the evidence presented indicates that a connection existed
between at least some of these services and the imported merchandise.
Specifically, we note that several of the purchase orders from MAN indicate
shipping to MAN-AG and "installation and training of the system at MAN GHH,
Oberhausen." It also is our understanding that software was imported by MAN
into the U.S.
Furthermore, all concerned parties agree that the services provided in
connection with the Supervision and Technical Assistance (Item 7) are not
included in the value of the imported merchandise since they pertain to
installation and erection concerning the merchandise after its importation.
As it is our understanding that evidence does not point contrary to this
position, we uphold this determination.
Finally, we agree with counsel's position concerning the
inappropriateness of Customs' application of the entire value increase to the
21 entries at issue, rather than its apportionment to the 64 entries
concerning the entire project. In the case of Alyeska Pipeline Service Co. v.
United States, 10 CIT 510, 643 F. Supp. 1128 (1986) and in C.S.D. 83-39, 17
Cust. Bull. 794 (1983) it was explained that Customs was required by law to
separately appraise multiple entries of merchandise because the only
statutorily valid appraisement is one which reflects the value of the
merchandise covered only by that entry.
Specifically, in C.S.D. 83-39 Customs addressed the appraisement of a
single protested entry, remaining from a number of entries already liquidated
at their entered values. The entries covered merchandise imported over a
period of time pursuant to a purchase agreement between the foreign
manufacturer and the U.S. purchaser. However, because the total contract
amount for the merchandise significantly exceeded the total entered value for
all the entries, the appraising officer adjusted the value of the protested
entry to compensate for the difference between the two amounts. In effect,
the appraisement resulted in an increase equal to the total amount of
additional duty due on the entire contract.
Customs, in citing 19 U.S.C. 1514(a), explained that because valuation
decisions made by the appropriate customs officer are final and conclusive
unless protested, the values as liquidated of the units covered by the non-protested entries represented the final appraised values for that merchandise.
As a result, Customs limited the value increase to the difference between the
entered value of the merchandise covered by the protested entry and the pro
rata share of the total contract price represented by that merchandise.
Accordingly, in the present matter, we likewise find the value increase to be
limited in this manner.
3. Classification under the HTSUS
The General Rules of Interpretation (GRIs) taken in their appropriate
order provide a framework for classification of merchandise under the HTSUS.
Most imported goods are classified by application of GRI 1, that is, according
to the terms of the headings of the tariff schedule and any relative section
or chapter notes.
The subject merchandise is classifiable by applying GRI 1. However,
while the protestant submits that the merchandise is classifiable within
heading 8454 which provides for converters, ladles, ingot molds and casting
machines, used in metallurgy or in metal foundries, and parts thereof, you
classified the merchandise in the individual, respective headings providing
for the goods in accordance with Note 2(a) to Section XVI.
In pertinent part, Note 2(a) provides that parts which are goods
included in any of the headings of chapters 84 and 85 are in all cases to be
classified in their respective headings. As a section note to the HTS, Note
2(a) is applied at the GRI 1 level. Because we find Note 2(a) applicable in
this case and since the protestant has submitted no evidence or arguments
contrary to the position espoused by your port, we find it appropriate to
classify the goods in their respective headings.
HOLDING:
Based on the information provided, we hold as follows:
1. The time period for liquidation properly was extended pursuant to 19
U.S.C. 1504.
2. The merchandise was appropriately appraised under transaction value
based on the price paid pursuant to the MAN-AG contract, excluding amounts for
time scheduling, reporting, basic engineering, and supervision and technical
assistance. However, based on the evidence submitted, amounts for technical
documentation and detail engineering appropriately are included as part of the
price of the merchandise. While not relevant for purposes of assessing an ad
valorem duty rate, the amounts in connection with the software would comprise
part of the value on which user fees would be assessed. Furthermore, the
value increase is limited to the difference between the entered value of the
merchandise covered by the protested entries and the pro rata share of the
total contract represented by that merchandise.
3. The merchandise was appropriately classified in the individual,
respective headings providing for the goods in accordance with Note 2(a) to
Section XVI.
The protest is to be disposed of in accordance with the foregoing. A
copy of this decision with the Form 19 should be sent to the protestant.
In accordance with Section 3A(11)(b) 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 to the public via the Diskette Subscription
Service, the Freedom of Information Act and other public access channels.
Sincerely,
Acting Director
International Trade Compliance Division