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AGREEMENT ON IMPLEMENTATION OF ARTICLE VII
GENERAL INTRODUCTORY COMMENTARY 1.
The primary basis for customs value under this Agreement is
"transaction value" as defined in Article 1.
Article 1 is to be read together with Article 8 which provides, inter alia,
for adjustments to the price actually paid or payable in cases where
certain specific elements which are considered to form a part of the
value for customs purposes are incurred by the buyer but are not
included in the price actually paid or payable for the imported goods.
Article 8 also provides for the inclusion in the transaction
value of certain considerations which may pass from the buyer to the
seller in the form of specified goods or services rather than in the
form of money. Articles 2
through 7 provide methods of determining the customs value whenever it
cannot be determined under the provisions of Article 1. 2.
Where the customs value cannot be determined under the provisions
of Article 1 there should normally be a process of consultation between
the customs administration and importer with a view to arriving at a
basis of value under the provisions of Article 2 or 3.
It may occur, for example, that the importer has information
about the customs value of identical or similar imported goods which is
not immediately available to the customs administration in the port of
importation. On the other
hand, the customs administration may have information about the customs
value of identical or similar imported goods which is not readily
available to the importer. A
process of consultation between the two parties will enable information
to be exchanged, subject to the requirements of commercial
confidentiality, with a view to determining a proper basis of value for
customs purposes. 3.
Articles 5 and 6 provide two bases for determining the customs
value where it cannot be determined on the basis of the transaction
value of the imported goods or of identical or similar imported goods.
Under paragraph 1 of Article 5 the customs value is
determined on the basis of the price at which the goods are sold in the
condition as imported to an unrelated buyer in the country of
importation. The importer
also has the right to have goods which are further processed after
importation valued under the provisions of Article 5 if the importer so
requests. Under Article 6
the customs value is determined on the basis of the computed value.
Both these methods present certain difficulties and because of
this the importer is given the right, under the provisions of Article 4,
to choose the order of application of the two methods. 4.
Article 7 sets out how to determine the customs value in cases
where it cannot be determined under the provisions of any of the
preceding Articles. Members,
Having regard
to the Multilateral Trade Negotiations;
Desiring
to further the objectives of GATT 1994 and to secure additional
benefits for the international trade of developing countries;
Recognizing
the importance of the provisions of Article VII of GATT 1994 and
desiring to elaborate rules for their application in order to provide
greater uniformity and certainty in their implementation;
Recognizing
the need for a fair, uniform and neutral system for the valuation of
goods for customs purposes that precludes the use of arbitrary or
fictitious customs values;
Recognizing
that the basis for valuation of goods for customs purposes should, to
the greatest extent possible, be the transaction value of the goods
being valued;
Recognizing
that customs value should be based on simple and equitable criteria
consistent with commercial practices and that valuation procedures
should be of general application without distinction between sources of
supply;
Recognizing
that valuation procedures should not be used to combat dumping;
Hereby agree as follows:
PART I Article 1 1.
The customs value of imported goods shall be the transaction
value, that is the price actually paid or payable for the goods when
sold for export to the country of importation adjusted in accordance
with the provisions of Article 8, provided:
(a)
that there are no restrictions as to the disposition or use of
the goods by the buyer other than restrictions which:
(i)
are imposed or required by law or by the public authorities in
the country of importation;
(ii)
limit the geographical area in which the goods may be resold;
or
(iii)
do not substantially affect the value of the goods;
(b)
that the sale or price is not subject to some condition or
consideration for which a value cannot be determined with respect to the
goods being valued;
(c)
that no part of the proceeds of any subsequent resale, disposal
or use of the goods by the buyer will accrue directly or indirectly to
the seller, unless an appropriate adjustment can be made in accordance
with the provisions of Article 8; and
(d)
that the buyer and seller are not related, or where the buyer and
seller are related, that the transaction value is acceptable for customs
purposes under the provisions of paragraph 2. 2.
(a)
In determining whether the transaction value is acceptable for
the purposes of paragraph 1, the fact that the buyer and the seller
are related within the meaning of Article 15 shall not in itself be
grounds for regarding the transaction value as unacceptable.
In such case the circumstances surrounding the sale shall be
examined and the transaction value shall be accepted provided that the
relationship did not influence the price.
If, in the light of information provided by the importer or
otherwise, the customs administration has grounds for considering that
the relationship influenced the price, it shall communicate its grounds
to the importer and the importer shall be given a reasonable opportunity
to respond. If the importer
so requests, the communication of the grounds shall be in writing.
(b)
In a sale between related persons, the transaction value shall be
accepted and the goods valued in accordance with the provisions of
paragraph 1 whenever the importer demonstrates that such value
closely approximates to one of the following occurring at or about the
same time:
(i)
the transaction value in sales to unrelated buyers of identical
or similar goods for export to the same country of importation;
(ii)
the customs value of identical or similar goods as determined
under the provisions of Article 5;
(iii)
the customs value of identical or similar goods as determined
under the provisions of Article 6;
In applying the foregoing tests, due account shall be taken of
demonstrated differences in commercial levels, quantity levels, the
elements enumerated in Article 8 and costs incurred by the seller
in sales in which the seller and the buyer are not related that are not
incurred by the seller in sales in which the seller and the buyer are
related.
(c)
The tests set forth in paragraph 2(b) are to be used at the
initiative of the importer and only for comparison purposes.
Substitute values may not be established under the provisions of
paragraph 2(b). Article 2 1.
(a)
If the customs value of the imported goods cannot be determined
under the provisions of Article 1, the customs value shall be the
transaction value of identical goods sold for export to the same country
of importation and exported at or about the same time as the goods being
valued.
(b)
In applying this Article, the transaction value of identical
goods in a sale at the same commercial level and in substantially the
same quantity as the goods being valued shall be used to determine the
customs value. Where no such
sale is found, the transaction value of identical goods sold at a
different commercial level and/or in different quantities, adjusted to
take account of differences attributable to commercial level and/or to
quantity, shall be used, provided that such adjustments can be made on
the basis of demonstrated evidence which clearly establishes the
reasonableness and accuracy of the adjustment, whether the adjustment
leads to an increase or a decrease in the value. 2.
Where the costs and charges referred to in paragraph 2 of
Article 8 are included in the transaction value, an adjustment shall be
made to take account of significant differences in such costs and
charges between the imported goods and the identical goods in question
arising from differences in distances and modes of transport.
Article 3 1.
(a)
If the customs value of the imported goods cannot be determined
under the provisions of Articles 1 and 2, the customs value shall
be the transaction value of similar goods sold for export to the same
country of importation and exported at or about the same time as the
goods being valued.
(b)
In applying this Article, the transaction value of similar goods
in a sale at the same commercial level and in substantially the same
quantity as the goods being valued shall be used to determine the
customs value. Where no such
sale is found, the transaction value of similar goods sold at a
different commercial level and/or in different quantities, adjusted to
take account of differences attributable to commercial level and/or to
quantity, shall be used, provided that such adjustments can be made on
the basis of demonstrated evidence which clearly establishes the
reasonableness and accuracy of the adjustment, whether the adjustment
leads to an increase or a decrease in the value. 2.
Where the costs and charges referred to in paragraph 2 of
Article 8 are included in the transaction value, an adjustment shall be
made to take account of significant differences in such costs and
charges between the imported goods and the similar goods in question
arising from differences in distances and modes of transport. 3.
If, in applying this Article, more than one transaction value of
similar goods is found, the lowest such value shall be used to determine
the customs value of the imported goods. Article 4
If the customs value of the imported goods cannot be determined
under the provisions of Articles 1, 2 and 3, the customs value
shall be determined under the provisions of Article 5 or, when the
customs value cannot be determined under that Article, under the
provisions of Article 6 except that, at the request of the importer, the
order of application of Articles 5 and 6 shall be reversed. Article 5 1.
(a)
If the imported goods or identical or similar imported goods are
sold in the country of importation in the condition as imported, the
customs value of the imported goods under the provisions of this Article
shall be based on the unit price at which the imported goods or
identical or similar imported goods are so sold in the greatest
aggregate quantity, at or about the time of the importation of the goods
being valued, to persons who are not related to the persons from whom
they buy such goods, subject to deductions for the following:
(i)
either the commissions usually paid or agreed to be paid or the
additions usually made for profit and general expenses in connection
with sales in such country of imported goods of the same class or kind;
(ii)
the usual costs of transport and insurance and associated costs
incurred within the country of importation;
(iii)
where appropriate, the costs and charges referred to in paragraph 2
of Article 8; and
(iv)
the customs duties and other national taxes payable in the
country of importation by reason of the importation or sale of the
goods.
(b)
If neither the imported goods nor identical nor similar imported
goods are sold at or about the time of importation of the goods being
valued, the customs value shall, subject otherwise to the provisions of
paragraph 1(a), be based on the unit price at which the imported goods
or identical or similar imported goods are sold in the country of
importation in the condition as imported at the earliest date after the
importation of the goods being valued but before the expiration of 90
days after such importation. 2.
If neither the imported goods nor identical nor similar imported
goods are sold in the country of importation in the condition as
imported, then, if the importer so requests, the customs value shall be
based on the unit price at which the imported goods, after further
processing, are sold in the greatest aggregate quantity to persons in
the country of importation who are not related to the persons from whom
they buy such goods, due allowance being made for the value added by
such processing and the deductions provided for in paragraph 1(a). Article 6 1.
The customs value of imported goods under the provisions of this
Article shall be based on a computed value.
Computed value shall consist of the sum of:
(a)
the cost or value of materials and fabrication or other
processing employed in producing the imported goods;
(b)
an amount for profit and general expenses equal to that usually
reflected in sales of goods of the same class or kind as the goods being
valued which are made by producers in the country of exportation for
export to the country of importation;
(c)
the cost or value of all other expenses necessary to reflect the
valuation option chosen by the Member under paragraph 2 of Article
8. 2.
No Member may require or compel any person not resident in its
own territory to produce for examination, or to allow access to, any
account or other record for the purposes of determining a computed
value. However, information
supplied by the producer of the goods for the purposes of determining
the customs value under the provisions of this Article may be verified
in another country by the authorities of the country of importation with
the agreement of the producer and provided they give sufficient advance
notice to the government of the country in question and the latter does
not object to the investigation. Article 7 1.
If the customs value of the imported goods cannot be determined
under the provisions of Articles 1 through 6, inclusive, the
customs value shall be determined using reasonable means consistent with
the principles and general provisions of this Agreement and of Article
VII of GATT 1994 and on the basis of data available in the country
of importation. 2.
No customs value shall be determined under the provisions of this
Article on the basis of:
(a)
the selling price in the country of importation of goods produced
in such country;
(b)
a system which provides for the acceptance for customs purposes
of the higher of two alternative values;
(c)
the price of goods on the domestic market of the country of
exportation;
(d)
the cost of production other than computed values which have been
determined for identical or similar goods in accordance with the
provisions of Article 6;
(e)
the price of the goods for export to a country other than the
country of importation;
(f)
minimum customs values; or
(g)
arbitrary or fictitious values. 3.
If the importer so requests, the importer shall be informed in
writing of the customs value determined under the provisions of this
Article and the method used to determine such value. Article 8 1.
In determining the customs value under the provisions of Article
1, there shall be added to the price actually paid or payable for the
imported goods:
(a)
the following, to the extent that they are incurred by the buyer
but are not included in the price actually paid or payable for the
goods:
(i)
commissions and brokerage, except buying commissions;
(ii)
the cost of containers which are treated as being one for customs
purposes with the goods in question;
(iii)
the cost of packing whether for labour or materials;
(b)
the value, apportioned as appropriate, of the following goods and
services where supplied directly or indirectly by the buyer free of
charge or at reduced cost for use in connection with the production and
sale for export of the imported goods, to the extent that such value has
not been included in the price actually paid or payable:
(i)
materials, components, parts and similar items incorporated in
the imported goods;
(ii)
tools, dies, moulds and similar items used in the production of
the imported goods;
(iii)
materials consumed in the production of the imported goods;
(iv)
engineering, development, artwork, design work, and plans and
sketches undertaken elsewhere than in the country of importation and
necessary for the production of the imported goods;
(c)
royalties and licence fees related to the goods being valued that
the buyer must pay, either directly or indirectly, as a condition of
sale of the goods being valued, to the extent that such royalties and
fees are not included in the price actually paid or payable;
(d)
the value of any part of the proceeds of any subsequent resale,
disposal or use of the imported goods that accrues directly or
indirectly to the seller. 2.
In framing its legislation, each Member shall provide for the
inclusion in or the exclusion from the customs value, in whole or in
part, of the following:
(a)
the cost of transport of the imported goods to the port or place
of importation;
(b)
loading, unloading and handling charges associated with the
transport of the imported goods to the port or place of importation;
and
(c)
the cost of insurance. 3.
Additions to the price actually paid or payable shall be made
under this Article only on the basis of objective and quantifiable data.
4.
No additions shall be made to the price actually paid or payable
in determining the customs value except as provided in this Article. Article 9 1.
Where the conversion of currency is necessary for the
determination of the customs value, the rate of exchange to be used
shall be that duly published by the competent authorities of the country
of importation concerned and shall reflect as effectively as possible,
in respect of the period covered by each such document of publication,
the current value of such currency in commercial transactions in terms
of the currency of the country of importation. 2.
The conversion rate to be used shall be that in effect at the
time of exportation or the time of importation, as provided by each
Member. Article 10
All information which is by nature confidential or which is
provided on a confidential basis for the purposes of customs valuation
shall be treated as strictly confidential by the authorities concerned
who shall not disclose it without the specific permission of the person
or government providing such information, except to the extent that it
may be required to be disclosed in the context of judicial proceedings. Article 11 1.
The legislation of each Member shall provide in regard to a
determination of customs value for the right of appeal, without penalty,
by the importer or any other person liable for the payment of the duty. 2. An initial right of appeal without penalty may be to an authority within the customs administration or to an independent body, but the legislation of each Member shall provide for the right of appeal without penalty to a judicial authority. 3.
Notice of the decision on appeal shall be given to the appellant
and the reasons for such decision shall be provided in writing.
The appellant shall also be informed of any rights of further
appeal. Article 12
Laws, regulations, judicial decisions and administrative rulings
of general application giving effect to this Agreement shall be
published in conformity with Article X of GATT 1994 by the country
of importation concerned. Article 13
If, in the course of determining the customs value of imported
goods, it becomes necessary to delay the final determination of such
customs value, the importer of the goods shall nevertheless be able to
withdraw them from customs if, where so required, the importer provides
sufficient guarantee in the form of a surety, a deposit or some other
appropriate instrument, covering the ultimate payment of customs duties
for which the goods may be liable. The
legislation of each Member shall make provisions for such circumstances.
Article 14
The notes at Annex I to this Agreement form an integral part of
this Agreement and the Articles of this Agreement are to be read and
applied in conjunction with their respective notes.
Annexes II and III also form an integral part of this Agreement. Article 15 1. In this Agreement:
(a)
"customs value of imported goods" means the value of
goods for the purposes of levying ad valorem duties of customs on
imported goods;
(b)
"country of importation" means country or customs
territory of importation; and
(c)
"produced" includes grown, manufactured and mined. 2.
In this Agreement:
(a)
"identical goods" means goods which are the same in all
respects, including physical characteristics, quality and reputation.
Minor differences in appearance would not preclude goods
otherwise conforming to the definition from being regarded as identical;
(b)
"similar goods" means goods which, although not alike
in all respects, have like characteristics and like component materials
which enable them to perform the same functions and to be commercially
interchangeable. The quality
of the goods, their reputation and the existence of a trademark are
among the factors to be considered in determining whether goods are
similar; (c) the terms "identical goods" and "similar goods" do not include, as the case may be, goods which incorporate or reflect engineering, development, artwork, design work, and plans and sketches for which no adjustment has been made under paragraph 1(b)(iv) of Article 8 because such elements were undertaken in the country of importation;
(d)
goods shall not be regarded as "identical goods" or
"similar goods" unless they were produced in the same country
as the goods being valued;
(e)
goods produced by a different person shall be taken into account
only when there are no identical goods or similar goods, as the case may
be, produced by the same person as the goods being valued. 3.
In this Agreement "goods of the same class or kind"
means goods which fall within a group or range of goods produced by a
particular industry or industry sector, and includes identical or
similar goods. 4.
For the purposes of this Agreement, persons shall be deemed to be
related only if:
(a)
they are officers or directors of one another's businesses;
(b)
they are legally recognized partners in business;
(c)
they are employer and employee;
(d)
any person directly or indirectly owns, controls or holds 5 per
cent or more of the outstanding voting stock or shares of both of them;
(e)
one of them directly or indirectly controls the other;
(f)
both of them are directly or indirectly controlled by a third
person;
(g)
together they directly or indirectly control a third person;
or
(h)
they are members of the same family. 5.
Persons who are associated in business with one another in that
one is the sole agent, sole distributor or sole concessionaire, however
described, of the other shall be deemed to be related for the purposes
of this Agreement if they fall within the criteria of paragraph 4. Article 16
Upon written request, the importer shall have the right to an
explanation in writing from the customs administration of the country of
importation as to how the customs value of the importer?s goods was determined. Article 17
Nothing in this Agreement shall be construed as restricting or
calling into question the rights of customs administrations to satisfy
themselves as to the truth or accuracy of any statement, document or
declaration presented for customs valuation purposes.
PART II
Article 18
Institutions 1.
There is hereby established a Committee on Customs Valuation
(referred to in this Agreement as "the Committee") composed of
representatives from each of the Members.
The Committee shall elect its own Chairman and shall normally
meet once a year, or as is otherwise envisaged by the relevant
provisions of this Agreement, for the purpose of affording Members the
opportunity to consult on matters relating to the administration of the
customs valuation system by any Member as it might affect the operation
of this Agreement or the furtherance of its objectives and carrying out
such other responsibilities as may be assigned to it by the Members.
The WTO Secretariat shall act as the secretariat to the
Committee. 2.
There shall be established a Technical Committee on Customs
Valuation (referred to in this Agreement as "the Technical
Committee") under the auspices of the Customs Co-operation Council
(referred to in this Agreement as "the CCC"), which shall
carry out the responsibilities described in Annex II to this Agreement
and shall operate in accordance with the rules of procedure contained
therein. Article 19 Consultations and Dispute Settlement 1.
Except as otherwise provided herein, the Dispute Settlement
Understanding is applicable to consultations and the settlement of
disputes under this Agreement. 2.
If any Member considers that any benefit accruing to it, directly
or indirectly, under this Agreement is being nullified or impaired, or
that the achievement of any objective of this Agreement is being
impeded, as a result of the actions of another Member or of other
Members, it may, with a view to reaching a mutually satisfactory
solution of this matter, request consultations with the Member or
Members in question. Each
Member shall afford sympathetic consideration to any request from
another Member for consultations. 3.
The Technical Committee shall provide, upon request, advice and
assistance to Members engaged in consultations. 4.
At the request of a party to the dispute, or on its own
initiative, a panel established to examine a dispute relating to the
provisions of this Agreement may request the Technical Committee to
carry out an examination of any questions requiring technical
consideration. The panel
shall determine the terms of reference of the Technical Committee for
the particular dispute and set a time period for receipt of the report
of the Technical Committee. The
panel shall take into consideration the report of the Technical
Committee. In the event that
the Technical Committee is unable to reach consensus on a matter
referred to it pursuant to this paragraph, the panel should afford the
parties to the dispute an opportunity to present their views on the
matter to the panel. 5.
Confidential information provided to the panel shall not be
disclosed without formal authorization from the person, body or
authority providing such information.
Where such information is requested from the panel but release of
such information by the panel is not authorized, a non-confidential
summary of this information, authorized by the person, body or authority
providing the information, shall be provided. PART III Article 20 1.
Developing country Members not party to the Agreement on
Implementation of Article VII of the General Agreement on Tariffs
and Trade done on 12 April 1979 may delay application of the provisions
of this Agreement for a period not exceeding five years from the date of
entry into force of the WTO Agreement for such Members.
Developing country Members who choose to delay application of
this Agreement shall notify the Director-General of the WTO accordingly.
2.
In addition to paragraph 1, developing country Members not party
to the Agreement on Implementation of Article VII of the General
Agreement on Tariffs and Trade done on 12 April 1979 may delay
application of paragraph 2(b)(iii) of Article 1 and Article 6 for a
period not exceeding three years following their application of all
other provisions of this Agreement.
Developing country Members that choose to delay application of
the provisions specified in this paragraph shall notify the
Director-General of the WTO accordingly. 3.
Developed country Members shall furnish, on mutually agreed
terms, technical assistance to developing country Members that so
request. On this basis
developed country Members shall draw up programmes of technical
assistance which may include, inter alia,
training of personnel, assistance in preparing implementation
measures, access to sources of information regarding customs valuation
methodology, and advice on the application of the provisions of this
Agreement. PART IV Article 21 Reservations
Reservations may not be entered in respect of any of the
provisions of this Agreement without the consent of the other Members. Article 22 National Legislation 1.
Each Member shall
ensure, not later than the date of application of the provisions of this
Agreement for it, the conformity of its laws, regulations and
administrative procedures with the provisions of this Agreement. 2.
Each Member shall inform the Committee of any changes in its laws
and regulations relevant to this Agreement and in the administration of
such laws and regulations. Article 23 Review
The Committee shall review annually the implementation and
operation of this Agreement taking into account the objectives thereof.
The Committee shall annually inform the Council for Trade in
Goods of developments during the period covered by such reviews. Article 24 Secretariat
This Agreement shall be serviced by the WTO Secretariat except in
regard to those responsibilities specifically assigned to the Technical
Committee, which will be serviced by the CCC Secretariat. ANNEX
I General Note Sequential Application of Valuation Methods 1.
Articles 1 through 7 define how the customs value of imported
goods is to be determined under the provisions of this Agreement.
The methods of valuation are set out in a sequential order of
application. The primary
method for customs valuation is defined in Article 1 and imported goods
are to be valued in accordance with the provisions of this Article
whenever the conditions prescribed therein are fulfilled. 2.
Where the customs value cannot be determined under the provisions
of Article 1, it is to be determined by proceeding sequentially through
the succeeding Articles to the first such Article under which the
customs value can be determined. Except
as provided in Article 4, it is only when the customs value cannot be
determined under the provisions of a particular Article that the
provisions of the next Article in the sequence can be used. 3.
If the importer does not request that the order of Articles 5 and
6 be reversed, the normal order of the sequence is to be followed.
If the importer does so request but it then proves impossible to
determine the customs value under the provisions of Article 6, the
customs value is to be determined under the provisions of Article 5, if
it can be so determined. 4.
Where the customs value cannot be determined under the provisions
of Articles 1 through 6 it is to be determined under the provisions of
Article 7. Use
of Generally Accepted Accounting Principles
1.
"Generally accepted accounting principles" refers to
the recognized consensus or substantial authoritative support within a
country at a particular time as to which economic resources and
obligations should be recorded as assets and liabilities, which changes
in assets and liabilities should be recorded, how the assets and
liabilities and changes in them should be measured, what information
should be disclosed and how it should be disclosed, and which financial
statements should be prepared. These
standards may be broad guidelines of general application as well as
detailed practices and procedures. 2.
For the purposes of this Agreement, the customs administration of
each Member shall utilize information prepared in a manner consistent
with generally accepted accounting principles in the country which is
appropriate for the Article in question.
For example, the determination of usual profit and general
expenses under the provisions of Article 5 would be carried out
utilizing information prepared in a manner consistent with generally
accepted accounting principles of the country of importation.
On the other hand, the determination of usual profit and general
expenses under the provisions of Article 6 would be carried out
utilizing information prepared in a manner consistent with generally
accepted accounting principles of the country of production.
As a further example, the determination of an element provided
for in paragraph 1(b)(ii) of Article 8 undertaken in the country of
importation would be carried out utilizing information in a manner
consistent with the generally accepted accounting principles of that
country. Note to Article 1 Price
Actually Paid or Payable 1.
The price actually paid or payable is the total payment made or
to be made by the buyer to or for the benefit of the seller for the
imported goods. The payment
need not necessarily take the form of a transfer of money.
Payment may be made by way of letters of credit or negotiable
instruments. Payment may be
made directly or indirectly. An
example of an indirect payment would be the settlement by the buyer,
whether in whole or in part, of a debt owed by the seller. 2.
Activities undertaken by the buyer on the buyer's own account,
other than those for which an adjustment is provided in Article 8, are
not considered to be an indirect payment to the seller, even though they
might be regarded as of benefit to the seller.
The costs of such activities shall not, therefore, be added to
the price actually paid or payable in determining the customs value. 3.
The customs value shall not include the following charges or
costs, provided that they are distinguished from the price actually paid
or payable for the imported goods:
(a)
charges for construction, erection, assembly, maintenance or
technical assistance, undertaken after importation on imported goods
such as industrial plant, machinery or equipment;
(b)
the cost of transport after importation;
(c)
duties and taxes of the country of importation. 4.
The price actually paid or payable refers to the price for the
imported goods. Thus the
flow of dividends or other payments from the buyer to the seller that do
not relate to the imported goods are not part of the customs value. Paragraph
1(a)(iii)
Among restrictions which would not render a price actually paid
or payable unacceptable are restrictions which do not substantially
affect the value of the goods. An
example of such restrictions would be the case where a seller requires a
buyer of automobiles not to sell or exhibit them prior to a fixed date
which represents the beginning of a model year. Paragraph
1(b) 1. If the sale or price is subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued, the transaction value shall not be acceptable for customs purposes. Some examples of this include:
(a)
the seller establishes the price of the imported goods on
condition that the buyer will also buy other goods in specified
quantities;
(b)
the price of the imported goods is dependent upon the price or
prices at which the buyer of the imported goods sells other goods to the
seller of the imported goods;
(c)
the price is established on the basis of a form of payment
extraneous to the imported goods, such as where the imported goods are
semi-finished goods which have been provided by the seller on condition
that the seller will receive a specified quantity of the finished goods.
2.
However, conditions or considerations relating to the production
or marketing of the imported goods shall not result in rejection of the
transaction value. For
example, the fact that the buyer furnishes the seller with engineering
and plans undertaken in the country of importation shall not result in
rejection of the transaction value for the purposes of Article 1.
Likewise, if the buyer undertakes on the buyer?s own account, even though by agreement with the
seller, activities relating to the marketing of the imported goods, the
value of these activities is not part of the customs value nor shall
such activities result in rejection of the transaction value. Paragraph
2 1.
Paragraphs 2(a) and 2(b) provide different means of establishing
the acceptability of a transaction value. 2.
Paragraph 2(a) provides that where the buyer and the seller are
related, the circumstances surrounding the sale shall be examined and
the transaction value shall be accepted as the customs value provided
that the relationship did not influence the price.
It is not intended that there should be an examination of the
circumstances in all cases where the buyer and the seller are related.
Such examination will only be required where there are doubts
about the acceptability of the price.
Where the customs administration have no doubts about the
acceptability of the price, it should be accepted without requesting
further information from the importer.
For example, the customs administration may have previously
examined the relationship, or it may already have detailed information
concerning the buyer and the seller, and may already be satisfied from
such examination or information that the relationship did not influence
the price. 3.
Where the customs administration is unable to accept the
transaction value without further inquiry, it should give the importer
an opportunity to supply such further detailed information as may be
necessary to enable it to examine the circumstances surrounding the
sale. In this context, the
customs administration should be prepared to examine relevant aspects of
the transaction, including the way in which the buyer and seller
organize their commercial relations and the way in which the price in
question was arrived at, in order to determine whether the relationship
influenced the price. Where
it can be shown that the buyer and seller, although related under the
provisions of Article 15, buy from and sell to each other as if they
were not related, this would demonstrate that the price had not been
influenced by the relationship. As
an example of this, if the price had been settled in a manner consistent
with the normal pricing practices of the industry in question or with
the way the seller settles prices for sales to buyers who are not
related to the seller, this would demonstrate that the price had not
been influenced by the relationship.
As a further example, where it is shown that the price is
adequate to ensure recovery of all costs plus a profit which is
representative of the firm's overall profit realized over a
representative period of time (e.g. on an annual basis) in sales of
goods of the same class or kind, this would demonstrate that the price
had not been influenced. 4.
Paragraph 2(b) provides an opportunity for the importer to
demonstrate that the transaction value closely approximates to a
"test" value previously accepted by the customs administration
and is therefore acceptable under the provisions of Article 1.
Where a test under paragraph 2(b) is met, it is not necessary to
examine the question of influence under paragraph 2(a).
If the customs administration has already sufficient information
to be satisfied, without further detailed inquiries, that one of the
tests provided in paragraph 2(b) has been met, there is no reason for it
to require the importer to demonstrate that the test can be met.
In paragraph 2(b) the term "unrelated buyers" means
buyers who are not related to the seller in any particular case. Paragraph
2(b)
A number of factors must be taken into consideration in
determining whether one value "closely approximates" to
another value. These factors
include the nature of the imported goods, the nature of the industry
itself, the season in which the goods are imported, and, whether the
difference in values is commercially significant.
Since these factors may vary from case to case, it would be
impossible to apply a uniform standard such as a fixed percentage, in
each case. For example, a
small difference in value in a case involving one type of goods could be
unacceptable while a large difference in a case involving another type
of goods might be acceptable in determining whether the transaction
value closely approximates to the "test" values set forth in
paragraph 2(b) of Article 1. |
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