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 : Rules on Customs Valuation
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).
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.
3.
If, in applying this Article, more than one transaction value of
identical goods is found, the lowest such value shall be used to
determine the customs value of the imported goods.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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: Administration, Consultations And Dispute Settlement
Article 18: Institutions back to top
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 back to top
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: Special And Differential Treatment
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: Final Provisions
Article
21: Reservations back to top
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 back to top
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.
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 back to top
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.
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