Customs Valuation (Determination of Value of Imported Goods) Rules, .1999.

CUSTOMS VALUATION

(DETERMINATION OF VALUE OF IMPORTED GOODS) RULES, 1999

[Gazette of Pakistan, Extraordinary, Part II, 27th December, 1999]

S.R.O. 1369(1)/99, dated 24-12-1999.--In exercise of the powers conferred by section 219 of the Customs Act, 1969 (IV of 1969), read with section 25 thereof, the Central Board of Revenue is pleased to make the following rules to regulate the valuation of imported goods for levy of ' customs duties and other taxes, namely:--

CHAPTER I -- PRELIMINARY

1. Short title, commencement and application.--(1) These rules may be called the Customs Valuation (Determination of Value of Imported Goods) Rules, .1999.

(2) These shall come into force with effect from the 1st January, 2000.

(3) These shall apply to the goods imported or for which bill of entry is filed on or after the date of coming into force of these rules.

2. Definitions.--In these rules, unless there is anything repugnant in the subject or context,--

(a) "Act" means the Customs Act, 1969 (IV of 1969);

(b) "appropriate officer", in relation to any -function to be performed under these rules, means the officer of customs to whom such functions have been assigned by or under the Act and includes officers superior to him;

(c) "at or about the same time" means within ninety days prior to the importation or within ninety days after the importation of goods being valued;     

(d) "buying commission" means fee paid and declared in the bill of entry by an importer to his agent for the service of representing the importer abroad in the purchase of the goods being valued;

(e) "commercial level" means the level of the transaction at which a sale is concluded and includes the sales before and after importation of the goods for example, sales conducted between a manufacturer and a wholesaler, or between a wholesaler and a retailer, or between a retailer and a customer;

(f) "family" means a group of persons related to each other by marriage, blood or law of adoption and includes all descendants of common progenitor;

(g) "general expenses" include direct and indirect costs of marketing the goods after importation;

(h) "produced" includes goods grown, manufactured and mined; and

(i) "related person", for the purposes of these rules, means such persons only if--

(i) they are officers or directors of one another's business;

(ii) they are legally recognized partners in business;,

(iii) they are employer and employee;

(iv) one of them directly or indirectly controls the other;

(v) both of them are directly or indirectly controlled by a third person;

(vi) together they directly or indirectly control a third person; or

(vii) they are members of the same family;

(viii) any person ,who directly or indirectly owns, controls or holds five per cent. or more of the outstanding voting stock or shares of business of both or each of such related persons;

Explanation-I.--The term "person" also includes legal persons.

Explanation-II.--Persons who are associated in the business of one another and that one is the sole agent or sole distributor or sole concessionnaire, however, described, of the other, shall be deemed to be related for the purpose of these rules, if they fall within the criteria hereinbefore specified for related persons. .

Explanation-III.--One person shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the other.

CHAPTER II -- GENERAL

3. Declaration by the importer.--The importer, or his agent, shall furnish--

(a) a declaration disclosing full and accurate details relating to the value of imported goods; and

(b) any other statement, information or document as considered necessary by the appropriate officer for determination of the value of imported goods under the Act and these rules, and the Act.

4. Burden of proof.--(1) Where the appropriate officer has reason to doubt the truth or accuracy of the particulars or of documents produced in support of the declaration, such officer may ask the importer to provide further explanation, including documents or other evidence.

(2) If, after receiving information referred to in sub-rule (1) or in the absence of a response, the appropriate officer still has reasonable doubts about the truth or accuracy of the declared value, it may be deemed that the customs value of the imported goods cannot be determined under the provisions of subsection (1) of section 25 of the Act.

(3) When a final decision is made, the appropriate officer shall communicate to the importer in writing his decision and the grounds therefor.

5. Prohibited methods.--Where the value of imported goods cannot be determined under subsections (1), (5), (6), (7) and (8) of section 25, of the Act, the customs value shall be determined on the basis of data of imports available with the Customs Department. However, no value shall be determined under these rules on the basis of--

(i) the selling price of the identical goods produced in Pakistan;

(ii) the price of the goods in the domestic market of the country of origin except after allowing deduction of local taxes and profits at each level of sale in the country of exportations;

(iii) arbitrary or fictitious values; or ,

(iv) the minimum customs value, except those notified under subsection (14) of section 25 of the Act.

6. Rights of customs.--Nothing contained in these rules shall be construed as restricting, or calling in question, the right of the appropriate officer to satisfy himself as to the truth or accuracy of any statement, information, document or declaration presented for valuation purposes by or on behalf of the importer under the Act and rules made thereunder.

7. Rights of importer.---(1) Whenever the appropriate officer is unable to accept the transaction value without further inquiry, he shall give the importer an opportunity to supply such further detailed information as may be necessary to enable him to examine the circumstances surrounding the sale. In this context, the, appropriate officer of customs shall 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 clause (i) of rule 2, buy from any seller to each other as if they were not related, this would demonstrate that the price had been settled in a manner consistent with the normal pricing practice of the concerned industry or with the way the seller settles prices for sales to buyers who are not related to him, this would demonstrate that the price has not been influenced by the relationship.

 (2) 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 realised over a representative period of time, for example, on an annual basis, in sales of goods of the same class or kind, this would demonstrate that the price had not been influenced.

CHAPTER III -- PRIMARY METHOD OF VALUATION

8. 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. It may be made by way of letter of credit or negotiable instruments, or by cash or credit or partly by cash and partly by credit and 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 his own account, other than those for which an adjustment is provided in subsection (2) of section 25 of the Act 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 value of imported goods.

(3) The customs value of imported goods shall not include the following charges or costs, provided that they are distinguished from the' price actually paid or payable for the imported goods, namely:----

(i) charges for construction, erection, assembly, maintenance or technical assistance undertaken after importation of imported goods such as industrial plant, machinery or equipment;

(ii) the cost of transport after importation; and

(iii) duties and taxes in Pakistan.

(4) The price actually paid or payable refers to the price of the imported goods. Thus, the flow of dividends or other payments from the buyer to the seller, which do not relate to the imported goods, shall not be part of the customs value.

9. Restrictions which do not affect value.--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.

10. Restrictions which affect value.--If the sale or price is subject to some conditions or considerations for which a value cannot be determined with respect to the goods being valued, the transaction value shall not be acceptable for customs purposes. For examples:--

(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; or

(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 he will receive a specified quantity of the finished goods.

Explanation.--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 Pakistan shall not result in rejection of the transaction value. Likewise, if the buyer undertakes on his own account, even though by agreement with the seller, activities relating to the marketing of the imported goods, the value of these activities shall not be part of the value of imported goods nor shall such activities result in rejection of the transaction value.

11. Transaction value acceptable in case of related parties.--Where the buyer and seller are related, circumstances surrounding the sale shall be examined and the transaction value shall be accepted as the customs value of imported goods provided that the relationship did not influence the price. Where the appropriate officer has no doubts about the acceptability of the price, it may be accepted without requesting further information from the importer. For example, the appropriate officer may have previously examined the relationship, or he 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.

CHAPTER IV -- SECONDARY METHODS OF VALUATION

12. Transaction value of identical goods.--.(1) In applying subsection (5) of section 25 of the Act, appropriate officer shall, wherever possible use .a sale of identical goods at the same commercial level and in substantially the same quantities as the goods being valued. Where no such sale is found a sale of identical goods that takes place under any one of the following conditions may be used, namely:--

(i),a sale at the-same commercial level but in different quantities;

(ii) a sale at different commercial level but in substantially the same quantities; or

(iii) a sale at a different commercial level and indifferent quantities.

(2) Having found a sale under anyone of the conditions referred to in sub-rule (.1), adjustments shall then be made, as .the case may be for the following, namely:--

(i) quantity factors only; .

(ii) commercial level factors only; or

(iii) both commercial level and quantity factors

(3) For the purposes of subsection (5) of section 25 of the Act, the transaction value of identical, imported goods means a value, adjusted as provided for in clauses (a), (b) and (c) of subsection (5) of that section, which has already been accepted under subsection (1) of the said section 25.

(4) A condition for adjustment because of different commercial levels or different quantities shall be that such adjustment, whether it leads to an increase or a decrease in the value; be made only on the basis of demonstrated evidence that clearly establishes the reasonableness and accuracy of the adjustment, e.g., valid price lists containing prices referring to different levels or different quantities. As an example. of this, if the imported goods being valued consist of a shipment of ten units and the only identical goods for which a transaction value exists involved a sale of the five hundred units, and it is recognized that the seller grants quantity discounts, the required adjustment may be accomplished by 'resorting to the seller's price list and using that price applicable to a sale of ten units. This does not requite that a sale had to have been made in quantities of ten as long as the price: list has been established as being bona fide through sales at other quantities.

13. Transaction value of similar goods.--(1) In applying subsection (6) of section 25 of the Act the appropriate officer shall,, wherever possible, use a sale of similar goods at the same commercial level and in substantially the same quantities as the goods being valued, For the purposes of subsection (6) of the said section the transaction value of similar imported goods means the value of imported goods, adjusted as provided for in subsection (2) thereof which has already been accepted under subsection (1) of that section.

(2) The provisions of Rule 12 shall, mutatis mutandis, also apply in respect of similar goods.

14. Deductive value method.--(1) For the purposes of this rule, the expression "unit 'price at which goods are sold in the greatest aggregate quantity" means the price at which the greatest number of units is sold in sales to persons who are not related to the persons from whom they buy such goods at the first commercial level after importation at which such sale takes place.

Explanation.--(i) When goods are sold on the basis of a printed or advertised price list which grants favourable unit prices for purchase made in larger quantities the unit price at which goods are sold is the greatest aggregate quantity shall be ascertained as per the following example:--

Sale quantity     Unit price         Number of sales           Total quantity

                                                                                   sold at each

                                                                                   price.

1                      2                                 3                      4

(i) One to ten units        100      10 sales of 5 units         65

                                                5 sales of 3 units

(ii) Eleven to twenty      95        5 sales of 11 units         55

five units.

(iii) Over twenty-          90        sale of 30 units 80

five units .                                 sale of 50 units

Note.--In this example, the greatest, number of units sold at a price is eighty, therefore, the unit price in the greatest aggregate quantity is ninety.

(ii) In case when these are two separate sales. For example in the first sale five hundred units are sold at a price of ninety-five currency units each. In the second sale four hundred units are sold at a price of ninety currency units each. In this example, as the greatest number of units sold, at a particular price is five hundred, therefore, the unit price of the greatest aggregate quantity shall be ninety-five.

(iii) In case where various quantities are sold at various prices for example:--

Sales Quantity                                                 Unit price

1                                                                      2

40 units                                                           100

30 units                                                            90

15 units                                                           100

50 units                                                            95

25 units                                                           105

35 units                                                            90

05 units                                                           100

(II), Totals

Total Quantity Sold . .                                      Unit Price

1                                                                                 2

65                                                                               90

50                                                                               95

60                                                                               100

25                                                                              105

Note.--In this example, the greatest number of units sold at a particular price is sixty-five, therefore, the unit price in the greatest quantity is ninety.

(2) Any sale in Pakistan, as provided in sub-rule (1), to a person who supplies directly or indirectly free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods any of the elements specified in clause (c) of sub-rule (2) of section 25 of the Act shall not be taken into account in establishing the unit price for the purposes of subsection (7) of section 25 of the Act.

(3) For the purposes of the rules, the phrase "profit and general expenses" as used in sub-clause (i) of clause (a) of subsection (7) of section 25 of the Act, shall be taken as a whole for the purpose of determination of value. The figure for the purposes of this deduction shall be determined on the basis of information supplied by or on behalf of, the importer unless his figures are inconsistent with those obtained in sales in Pakistan of the same class or kind of goods.

(5) Where the importer's figures are inconsistent with such figures, the amount for profit and general expenses may be based upon relevant information other than that supplied by, or on behalf of, the importer.

(4) Local taxes payable by reason of the sale of the goods for which a deduction is not made under sub-clause (iv) of clause (a) of subsection (7) of section 25 of the Act shall be deducted under sub-clause (i) of clause (a) of  that subsection.

(5) In determining either the commissions of the usual profits and general expenses under clause (a) of subsection (7) of section 25 of the Act the question whether certain goods are "of the same class or kind" as other goods must be determined on case to case basis by reference to the circumstances involved, sales in Pakistan of the narrowest group or range of imported goods of the same class of kind, which includes the goods being valued, for which necessary information can be provided, should be examined. For the purposes of subsection (7) of section 25 of the Act "goods of the same class or kind" includes goods imported front the same country as the goods being valued as well as goods imported from other countries.

(6) For the purpose of clause (b) of subsection (7) of section 25 of the Act the "earliest date" shall be the date by which sales of the imported goods or of identical or similar goods are made in sufficient quantity to establish the unit price.

(7) Wherever the method of valuation provided in clause (c) of subsection (7) of section 25. of the Act is used, deductions made for the value added by further processing shall be based on objective and quantifiable data relating to the cost of such work. Accepted, industry formulas; recipes, methods of construction, and other industry practices would form the basis of the calculations.

(8) The method of valuation provided in clause (c) of subsection (7) of section 25 of the Act shall normally not be applicable when, as a. result of the further processing, the imported goods lose their identity. However, there can be instances where, although the identity of the imported goods is lost, the value added by the processing can be determined accurately without reasonable difficulty. On the other hand, there can also be instances where the imported goods maintain their identity but form such a minor element in the goods sold in Pakistan that the use of this valuation method would be unjustified. Accordingly, each situation of this type must be considered on a case to case basis.

15. Computed value method.---(1) As a general rule, customs-value shall be determined under subsection (8) of section 25 of the Act on the basis of information readily available in Pakistan. In order to determine a computed value, however, it may be necessary to examine the costs of producing the goods being valued and other information which has to be obtained from country of manufacture.

(2) For the purposes of these rules, "cost or value" referred to in clause (a) of subsection (8) of section 25 of the Act shall be determined on the basis of information relating to the production of the goods being valued supplied by, or on behalf of, the producer. It shall be based on the commercial accounts of the producer, provided that such accounts are consistent with the generally accepted accounting principles applied in the country where the goods are produced. The "cost or value" shall include the cost of elements specified in sub-clauses (ii) and (iii) of clause (b) of subsection (2) of section 25 of the Act. It shall also include the value, apportioned as appropriate under rule 17 of any element specified in clause (c) of subsection (2) of section 25 of the Act. which has been supplied directly or indirectly by the buyer for the use in connection with production of the imported goods. The value of the elements specified in sub-clause (iv) of clause (b) of subsection (2) of section 25 of the Act which are undertaken in Pakistan shall be included only to the extent that such elements are charged to the producer and no cost or value of the elements referred to in this subsection shall be counted twice in determining the computed value.

(3) For the purposes of these rules, the "amount for profit and general expenses" referred to clause (b) of subsection (8) of section 25 of the Act shall be determined on the basis of information supplied by or op behalf of the producer unless the producer's figures are inconsistent. with those 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 manufacture for export to Pakistan.

(4) For the purpose of these rules, the "amount for profit and general expenses" referred to in clause (b) of subsection (8) of section 25 of the Act shall be taken as a whole. If producer's profit figure is low and the producer's general expenses are high, the producer's profit and general expenses, taken together, shall nevertheless be consistent with that usually reflected in sales of goods of the same class or kind. Where the producer can demonstrate a low profit on sales of the imported goods because of particular commercial circumstances, the producer's actual profit figures should be taken' into account provided that the producer has valid commercial reasons to justify them and the producer's pricing policy reflects usual pricing policies in the branch of industry concerned. Where the producer's own figures for profit and general expenses are not consistent with those 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 manufacture for export to Pakistan, the amount for profit and general expenses may be based upon relevant information other than that supplied by, or on behalf  of the producer of the goods.

(5) Where information other than that supplied by, or on behalf of, the producer is used for the purposes of determining a computed value, the appropriate officer shall inform the importer, if the latter so requests of the source of such information, the data used and the calculation based upon such data; subject to the provisions of rule 19.

(6) For, the purposes of these rules, the "general expenses" referred to in clause (b) of subsection (8) of section 25 of the Act, include the direct and indirect costs of producing and selling the goods for export which are not included under clause (a) of that subsection.

 (7) For the purposes of clause (b) of subsection (8) of section 25 of the Act whether certain goods are "of the same class or kind" as other goods, must be determined on a case to case basis with reference to the circumstances involved: In determining the usual profits and general expenses under subsection (8) of section 25 of the Act, sales for export to Pakistan of the narrowest group or range of goods, which includes the goods being valued, for which the necessary information can be provided, shall be examined. For the purposes of subsection (8) of section 25 "goods of the same class or kind" must be from the same country as the goods being valued.

16. Fall back methods.--(1) Value of imported goods determined under subsection (9) of section 25 of the Act, shall, to the greatest extent possible be based on previously determined customs values of identical goods assessed within ninety, days.

(2) The methods of valuation, to be employed under subsection (9) of section 25 of the Act may be those laid down in subsections (1), (5), (6), (7) and (8) of the said section inclusive, but a reasonable flexibility in the application .of such methods would be in conformity with the aims and provisions of subsection. (9) of that section.

Explanation. ---Some examples of reasonable flexibility are as follows, namely:-­

(i) Identical goods-­

(a) the requirement that the identical goods shall be imported at or about the same time as the goods being valued, could be flexibly interpreted;

(b) identical imported goods produced in a country other than the country of exportation of the goods being valued could be the basis for customs valuation, and

(c) customs-values of identical imported goods already determined under subsections (7) and (8) of section 25 could be used.

(ii) Similar goods---

(a) the requirement that the similar goods shall be imported at or about the same time as the goods being valued could be flexibly interpreted;

(b) similar imported goods produced in a country other than the country of exportation of the goods being valued could be the basis for customs valuation; and

(c) customs-values of similar imported goods already determined

under subsections (7) and (8) of section 25 of the Act could be used.

(iii) Deductive method----

The requirement that the goods shall ,have been sold in the "condition as imported" as provided in clause (a) of subsection (7) of section 25 of the Act could be flexibly interpreted, and the ninety days requirement could be administered flexibly.

17. Adjustment of value.--(1) For adjustment of value there shall be two factors involved in the apportionment of the elements as specified in clause (c) of subsection (2) of section 25 of the Act to the imported goods, namely:--

(i) the value of the element itself, and

(ii) the way in which that value is to be apportioned to the imported goods. The apportionment of these elements shall be made in a reasonable manner appropriate to the circumstances and in accordance with generally accepted accounting principles.

(2) The value of the elements shall be adjusted as follows, namely:----

(i). if the importer acquired the element from a seller not related to him at a given cost, the value of the element is that cost;

(ii) if the element was produced by the importer or by a person related to him, its value shall be the cost of producing it; and

(iii) if the element had been previously used by the importer, regardless of whether it had been acquired or produced by such importer, the original cost of acquisition or production would have to be adjusted downward to select its use in order to arrive at the value of the element.

(3) Once a value has been determined for the element, it shall be apportioned to the value of the imported goods, as follows, namely:----

(i) the value might be apportioned to the first shipment if the importer wishes to pay duty on the entire value at one time;

(ii) the importer may request that the value be apportioned over the number of units produced up to the time of the first shipment; or

(iii) the importer may request that the value be apportioned over the entire anticipated production where contract or firm commitments exist for that production.

Explanation.--If an importer provides the producer with a mould to be used in the production of the imported goods and contracts with him to buy ten thousand units. By the time of arrival of the first shipment of one thousand units the producer has already produced four thousand units. The importer may request the appropriate officer to apportion the value of the mould over one thousand units, four thousand units or ten thousand units.

(4) Addition for the elements, specified in sub-clause (iv) of clause (c) of subsection (2) of section 25 of the Act shall be based on objective and quantifiable data. In order to minimize the burden for both the importer and appropriate officer in determining the values to be added, data readily available in the buyer's commercial record should be used in so far as possible:

(5) For those elements supplied by the buyer which were purchased or leased by the buyer, the addition shall be made for the cost of the purchase or the lease. No addition shall be made for those elements available in the public domain, other than the cost of obtaining copies of them.

(6) Payments made by the importer for the right to distribute or resell the imported goods shall not be added, to the price actually paid or payable for the imported goods if such payments are not a condition of the sale for export of the goods to Pakistan.

(7) Where objective and quantifiable data do not exist with regard to the additions required to be made under clauses. (b), (c), (d) and (e) of subsection (2j of section 25 of the Act the transaction value cannot be determined under the provisions of subsection (1) of section 25. 'As an illustration of this, a royalty is paid on the basis of the price in a sale in Pakistan of a litre of a particular product that was imported by weight in kilograms and made up into a solution after importation. If the royalty is based partially on. the imported goods and partially on other factors which have nothing to do with the imported goods (such as when the imported goods are mixed with domestic ingredients and are no longer separately identifiable, or when the royalty cannot be distinguished from special financial arrangements between the buyer and the seller), it would be inappropriate to attempt to make an addition for the royalty. However, if the amount of this royalty is based only on the imported goods and can be readily quantified, an addition to the price actually paid or payable can be made.

CHAPTER V -- MISCELLANEOUS

18. Use of generally accepted accounting principles.--For the purpose of these rules, the expression "generally accepted accounting principles" refers to recognised consensus or substantial authoritative support within Pakistan at a particular .time with regard to the following namely:--

(i) as to which economic resources and obligations should be recorded as assets and liabilities;

(ii) which changes in assets and liabilities should be recorded;

(iii) how the assets and liabilities and changes in them should be measured;

(iv) what information should be disclosed and how it should be disclosed; and

(v) .which financial statements should be prepared.

19. Confidentiality. ---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.

20. Dispute settlement.--(1) In case of dispute between the importer and the appropriate officer in respect of the value of the goods being valued, the same shall be resolved in consistent with the relevant provisions of the Customs Act, 1969 (IV of 1969).

(2) Nothing contained in these 'rules shall bar the claim of the importer for provisional release of goods under section 81 of the Act or claim of the Customs to assess the goods under section 80 of the Act read with section 26 thereof.