RR:IT:VA 546141 er
Port Director
Savannah, GA
RE: Request for Internal Advice; (Formerly Protest and
Application for Further Review (170395200049));
Sensitized Metal Plates; 19 U.S.C. 1401a(b)(4)(A); 19
U.S.C. 1514; 19 U.S.C. 1520(c).
Dear Sir:
This is in response to the above-referenced protest which
was received by this office on September 18, 1995. For the
reasons explained below, the protest will be treated as a request
for internal advice. All pricing information appearing in this
decision is bracketed and will be deleted from the published
version. We regret the delay in responding.
FACTS:
The imported merchandise consists of sensitized metal plates
purchased by Mitsubishi International Corporation in the U.S.
("Mitsubishi U.S.) from Mitsubishi Corporation in Japan
("Mitsubishi Japan"). The merchandise was imported on September
24, 1994, and the entry was liquidated on January 6, 1995. The
invoice presented at the time of entry reflected the value for
parts number SDP-RHN125SPEC28R 17-15/16" 2 rolls/box as
[$xxxxxxxxxxxxxxxx per unit)]. According to Mitsubishi U.S.,
after entry and payment of duties, Mitsubishi U.S. discovered
that the value listed on the invoice prepared by Mitsubishi Japan
was incorrect. The claimed correct value is [xxxxxxxxxxxxxxxx
per unit)].
The merchandise was appraised under transaction value based
on the amount reflected on the invoice presented at the time of
entry. Mitsubishi U.S. first protested the appraisement of the
goods under the authority of 19 U.S.C. 1514. That protest
(170395100024) was timely filed on February 10, 1995, a copy of
which was submitted to this office. Customs denied the protest
on April 19, 1995, because Customs believed that the difference
between the declared value and the claimed value was the result
of a post importation price adjustment or rebate within the
meaning of 19 U.S.C. 1401a(b)(4)A).
Mitsubishi U.S. now submits that the protest should not have
been made under the authority of 19 U.S.C. 1514 because the issue
does not involve a construction of law. Mitsubishi U.S. asserts
that because the difference in price came about as a result of
clerical error, the matter should have been petitioned under 19
U.S.C. 1520(c). In a written submission dated August 30, 1995,
Mitsubishi U.S., accordingly, petitioned for relief under 19
U.S.C. 1520(c) with your office. The petition is attached to the
Customs Protest and Summons Information Report prepared by you on
September 11, 1995 and received by this office on September 18,
1995.
A copy of a letter from Mitsubishi Japan dated August 10,
1995, to Mitsubishi U.S. is included with the petition. That
letter states that the wrong unit price was indicated on the
invoice for the subject entry and describes how Mitsubishi Japan
issued a revised invoice and reimbursed Mitsubishi U.S. an amount
representing the difference between the incorrect and correct
invoices. Also submitted were copies of a revised invoice
reflecting the corrected value and a credit memo to Mitsubishi
U.S. The credit memo reflects an amount of [xxxxxxx],
representing the difference between the value declared at the
time of entry [(xxxxxxxx)] and the claimed correct value
[(xxxxxxxx)]. Mitsubishi U.S., accordingly, requests
reliquidation of the entry and a refund under 19 U.S.C. 1520(c).
ISSUE:
Under the circumstances presented, whether relief can be
granted under section 520(c)(1) of the TAA?
Whether the post importation change in the invoiced amounts
represents a rebate within the meaning of section 402(b)(4)(A) of
the TAA?
LAW AND ANALYSIS:
Under section 514(a), Tariff Act of 1930, as amended (TAA;
19 U.S.C. 1514(a)), a protest may be filed against, among other
things, "the appraised value of merchandise". Under paragraph
(c)(2) of section 514, a protest of a decision, order, or finding
described in paragraph (a) of section 514 must be filed within 90
days after the notice of liquidation or reliquidation or the date
of the decision as to which the protest is made.
Under section 520(c)(1) TAA (19 U.S.C. 1520(c)(1)):
Notwithstanding a valid protest was not filed,
[Customs] may, in accordance with regulations
prescribed by the Secretary, reliquidate an entry to
correct ... (1) a clerical error, mistake of fact, or
other inadvertence not amounting to an error in the
construction of a law, adverse to the importer and
manifest from the record or established by documentary
evidence, in any entry, liquidation, or other customs
transaction , when the error, mistake, or inadvertence
is brought to the attention of [Customs] within one
year after the date of liquidation or exaction...
In reviewing the file, we note that while you did deny the
timely filed 514 protest you have not denied the 520(c) petition;
accordingly, this office does not have jurisdiction over the
matter and the submission should not be treated as an application
for further review of a protest. See generally, Customs
Directive 3550-39 "Protest Processing" dated January 16, 1991.
Under the circumstances, and because you appear to be requesting
guidance as to the proper application of Customs laws with
respect to a specific transaction, we will treat this matter as a
request for internal advice within the meaning of section 177.11,
Customs Regulations (19 CFR 177.11).
Transaction value, the preferred method of appraisement, is
defined in section 402(b) of the Trade Agreements Act of 1930, as
amended ("TAA"), as "the price actually paid or payable for the
merchandise when sold for exportation to the United States...",
plus certain statutory additions. (19 U.S.C. 1401a(b))
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 from
the country of exportation to the place of importation in the
United States) made, or to be made, for the imported merchandise
by the buyer to, or for the benefit of, the seller." (19 U.S.C.
1401a(b)(4)(A))
Section 402(b)(4)(B) of the TAA provides that "[a]ny rebate
of, or other decrease in, the price actually paid or payable that
is made or otherwise effected between the buyer and seller after
the date of importation of the merchandise into the United States
shall be disregarded in determining the transaction value ..." of
the imported merchandise. (19 U.S.C. 1401a(b)(4)(B)) The
corresponding Customs regulation is found at 19 CFR
152.103(a)(4).
Based on our review of the file and the evidence presented,
we find that the corrected invoiced amounts do not represent post
importation price adjustments or rebates within the meaning of
section 402(b)(4)(B) of the TAA. Mitsubishi U.S. and Mitsubishi
Japan did not intend to effect a decrease in the price actually
paid or payable after the time of importation; instead, the
documentation presented reveals that the change in the invoiced
values represents a clerical error which was subsequently
corrected. As described above, the documentation presented for
our review includes a revised invoice, a letter from Mitsubishi
Japan explaining the nature of the error, and a credit note.
Based upon the review of this documentation, we are satisfied
that the change in the invoiced values is the result of the
correction of a clerical error. Given these circumstances, you
should reliquidate the entry at the corrected invoiced amount and
refund the overpayment of duty and fees.
HOLDING:
Based upon our review of the facts, we have determined that
this matter is more properly treated as a request for internal
advice, as described in 19 CFR 177.11, rather than as an
application for further review of a protest. After reviewing the
documentation submitted by the importer, we find that the change
in invoiced values is not a post importation price adjustment or
rebate within the meaning of section 402(b)(4)(B). The change in
values, instead, represents a
clerical error. You should, accordingly, reliquidate the entry
at the corrected invoiced amount and refund the overpayment of
duty and fees.
Sincerely,
Acting Director, International
Trade Compliance Division