|
I. General Introductory Commentary back to top
A. Text of 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:
B. Interpretation and Application of the
General Introductory Commentary
1. General
a) Implementation of the
Agreement
1. At
its meeting of 18–19 October 2000, the General Council requested the
Committee on Customs Valuation to consider three proposals relating to
the implementation of the Customs Valuation Agreement. (1)
b) Adoption of the decisions
of the Tokyo Round Committee
2. At its meeting of 12 May
1995, the Committee on Customs Valuation also agreed, inter alia, to
adopt the decisions adopted by the Tokyo Round Committee on Customs
Valuation relating to the interpretation and administration of the of
the Customs Valuation Agreement.(2)
PART I: Rules on Customs Valuation
II. Article 1
back to top
A. Text of Article 1
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).
B. Text of Interpretative Note
to Article 1
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.
C. Interpretation and Application of Article 1
1. Valuation of carrier media
bearing software for data-processing equipment
3. At its meeting of 12 May
1995, the Committee on Customs Valuation adopted the decision of the
Tokyo Round Committee on the valuation of carrier media bearing software
for data-processing equipment. (3)
III. Article 2
back to top
A. Text of Article 2
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.
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.
B. Text of Interpretative Note
to Article 2
Note to Article 2
1. In applying
Article 2, the
customs administration 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
three conditions may be used:
(a) a sale at the same
commercial level but in different quantities;
(b) a sale at a different
commercial level but in substantially the same quantities; or
(c) a sale at a different
commercial level and in different quantities.
2. Having found a sale under
any one of these three conditions adjustments will then be made, as the
case may be, for:
(a) quantity factors only;
(b) commercial level factors
only; or
(c) both commercial level and
quantity factors.
3. The expression “and/or”
allows the flexibility to use the sales and make the necessary
adjustments in any one of the three conditions described above.
4. For the purposes of Article
2, the transaction value of identical imported goods means a customs
value, adjusted as provided for in paragraphs 1(b) and
2, which has
already been accepted under Article 1.
5. A condition for adjustment
because of different commercial levels or different quantities is 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 adjustments, 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 10 units and the only identical imported
goods for which a transaction value exists involved a sale of 500 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 10 units. This
does not require that a sale had to have been made in quantities of 10
as long as the price list has been established as being bona fide
through sales at other quantities. In the absence of such an objective
measure, however, the determination of a customs value under the
provisions of Article 2 is not appropriate.
C. Interpretation and Application of Article 2
1. General
(a) Rectification of the
French text of paragraph 1 of the Note to Article 2
4. At its meeting of 12 May
1995, the Committee on Customs Valuation adopted the decision of the
Tokyo Round Committee on Customs Valuation relating to the rectification
of the French text of paragraph 1 of the Note to Articles 2 and
3.(4)
IV. Article 3
back to top
A. Text of Article 3
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.
B. Text of Interpretative Note
to Article 3
Note to Article 3
1. In applying
Article 3, the
customs administration 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. Where no such sale is found, a
sale of similar goods that takes place under any one of the following
three conditions may be used:
(a) a sale at the same
commercial level but in different quantities;
(b) a sale at a different
commercial level but in substantially the same quantities; or
(c) a sale at a different
commercial level and in different quantities.
2. Having found a sale under
any one of these three conditions adjustments will then be made, as the
case may be, for:
(a) quantity factors only;
(b) commercial level factors
only; or
(c) both commercial level and
quantity factors.
3. The expression “and/or”
allows the flexibility to use the sales and make the necessary
adjustments in any one of the three conditions described above.
4. For the purpose of Article
3, the transaction value of similar imported goods means a customs
value, adjusted as provided for in paragraphs 1(b) and
2, which has
already been accepted under Article 1.
5. A condition for adjustment
because of different commercial levels or different quantities is 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 10 units and the only similar imported
goods for which a transaction value exists involved a sale of 500 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 10 units. This
does not require that a sale had to have been made in quantities of 10
as long as the price list has been established as being bona fide
through sales at other quantities. In the absence of such an objective
measure, however, the determination of a customs value under the
provisions of Article 3 is not appropriate.
C. Interpretation and Application of Article 3
1. General
(a) Rectification of the
French text of paragraph 1 of the Note to Article 3
5. With respect to the
rectification of the French text of paragraph 1 of the Note to Article
3, see paragraph 4 above.
V. Article 4
back to top
A. Text of Article 4
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.
B. Interpretation and Application of Article 4
6. Paragraph 3 of Annex III
allows developing countries to make a reservation that would allow
customs administrations the right to deny an importer’s request to
reverse the sequential order of the Articles 5 and
6. See interpretation
and application of paragraph 3 of Annex III paragraph 40 below.
VI. Article 5
back to top
A. Text of Article 5
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).
B. Text of Interpretative Note
to Article 5
Note to Article 5
1. The term “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 sales take place.
2. As an example of this,
goods are sold from a price list which grants favourable unit prices for
purchases made in larger quantities.
|
Sale quantity |
Unit price |
Number of sales |
Total quantity Sold at
each price |
|
1–10 units |
100 |
10 sales of 5 units 5 sales of 3 units |
65 |
|
11–25 units |
95 |
5 sales of 11 units |
55 |
|
over 25 units |
90 |
1 sale of 30 units 80 1 sale of 50 units |
80 |
The greatest number of units
sold at a price is 80; therefore, the unit price in the greatest
aggregate quantity is 90.
3. As another example of this,
two sales occur. In the first sale 500 units are sold at a price of 95
currency units each. In the second sale 400 units are sold at a price of
90 currency units each. In this example, the greatest number of units
sold at a particular price is 500; therefore, the unit price in the
greatest aggregate quantity is 95.
4. A third example would be
the following situation where various quantities are sold at various
prices.
|
(a) Sales |
|
|
Sale quantity |
Unit price |
|
40 units |
100 |
|
30 units |
90 |
|
15 units |
100 |
|
50 units |
95 |
|
25 units |
105 |
|
35 units |
90 |
|
5 units |
100 |
|
(b) Totals |
|
|
Total quantity sold |
Unit price |
|
65 |
90 |
|
50 |
95 |
|
60 |
100 |
|
25 |
105 |
In this example, the greatest
number of units sold at a particular price is 65; therefore, the unit
price in the greatest aggregate quantity is 90.
5. Any sale in the importing
country, as described in paragraph 1 above, 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 paragraph 1(b) of Article
8, should not
be taken into account in establishing the unit price for the purposes of
Article 5.
6. It should be noted that “profit
and general expenses” referred to in paragraph 1 of Article 5 should
be taken as a whole. The figure for the purposes of this deduction
should be determined on the basis of information supplied by or on
behalf of the importer unless the importer’s figures are inconsistent
with those obtained in sales in the country of importation of imported
goods of the same class or kind. 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.
7. The “general expenses”
include the direct and indirect costs of marketing the goods in
question.
8. Local taxes payable by
reason of the sale of the goods for which a deduction is not made under
the provisions of paragraph 1(a)(iv) of Article 5 shall be deducted
under the provisions of paragraph 1(a)(i) of Article
5.
9. In determining either the
commissions or the usual profits and general expenses under the
provisions of paragraph 1 of Article 5, the question whether certain
goods are “of the same class or kind” as other goods must be
determined on a case-by-case basis by reference to the circumstances
involved. Sales in the country of importation of the narrowest group or
range of imported goods of the same class or kind, which includes the
goods being valued, for which the necessary information can be provided,
should be examined. For the purposes of Article 5, “goods of the same
class or kind” includes goods imported from the same country as the
goods being valued as well as goods imported from other countries.
10. For the purposes of
paragraph 1(b) of Article 5, the “earliest date” shall be the date
by which sales of the imported goods or of identical or similar imported
goods are made in sufficient quantity to establish the unit price.
11. Where the method in
paragraph 2 of Article 5 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.
12. It is recognized that the
method of valuation provided for in paragraph 2 of Article 5 would
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
unreasonable 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 the country of importation that the use of
this valuation method would be unjustified. In view of the above, each
situation of this type must be considered on a case-by-case basis.
C. Interpretation and Application of Article 5
1. Article 5.2
7. Paragraph 4 of Annex III
allows developing countries to make a reservation with respect to the
application of paragraph 2. See interpretation and application of
paragraph 4 of Annex III, paragraph 41 below.
VII. Article 6
back to top
A. Text of Article 6
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.
B. Text of Interpretative Note
to Article 6
Note to Article 6
1. As a general rule, customs
value is determined under this Agreement on the basis of information
readily available in the country of importation. 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 outside the country of importation. Furthermore, in most
cases the producer of the goods will be outside the jurisdiction of the
authorities of the country of importation. The use of the computed value
method will generally be limited to those cases where the buyer and
seller are related, and the producer is prepared to supply to the
authorities of the country of importation the necessary costings and to
provide facilities for any subsequent verification which may be
necessary.
2. The “cost or value”
referred to in paragraph 1(a) of Article 6 is to 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 is to be based upon
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.
3. The “cost or value”
shall include the cost of elements specified in paragraphs 1(a)(ii) and
(iii) of Article 8. It shall also include the value, apportioned as
appropriate under the provisions of the relevant note to Article
8, of
any element specified in paragraph 1(b) of Article 8 which has been
supplied directly or indirectly by the buyer for use in connection with
the production of the imported goods. The value of the elements
specified in paragraph 1(b)(iv) of Article 8 which are undertaken in the
country of importation shall be included only to the extent that such
elements are charged to the producer. It is to be understood that no
cost or value of the elements referred to in this paragraph shall be
counted twice in determining the computed value.
4. The “amount for profit
and general expenses” referred to in paragraph 1(b) of Article 6 is to
be determined on the basis of information supplied by or on 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
exportation for export to the country of importation.
5. It should be noted in this
context that the “amount for profit and general expenses” has to be
taken as a whole. It follows that if, in any particular case, the
producer’s profit figure is low and the producer’s general expenses
are high, the producer’s profit and general expenses taken together
may nevertheless be consistent with that usually reflected in sales of
goods of the same class or kind. Such a situation might occur, for
example, if a product were being launched in the country of importation
and the producer accepted a nil or low profit to offset high general
expenses associated with the launch. 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. Such a
situation might occur, for example, where producers have been forced to
lower prices temporarily because of an unforeseeable drop in demand, or
where they sell goods to complement a range of goods being produced in
the country of importation and accept a low profit to maintain
competitivity. 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 exportation for export to the country of
importation, 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.
6. Where information other
than that supplied by or on behalf of the producer is used for the
purposes of determining a computed value, the authorities of the
importing country shall inform the importer, if the latter so requests,
of the source of such information, the data used and the calculations
based upon such data, subject to the provisions of Article
10.
7. The “general expenses”
referred to in paragraph 1(b) of Article 6 covers the direct and
indirect costs of producing and selling the goods for export which are
not included under paragraph 1(a) of Article 6.
8. Whether certain goods are
“of the same class or kind” as other goods must be determined on a
case-by-case basis with reference to the circumstances involved. In
determining the usual profits and general expenses under the provisions
of Article 6, sales for export to the country of importation of the
narrowest group or range of goods, which includes the goods being
valued, for which the necessary information can be provided, should be
examined. For the purposes of Article 6, “goods of the same class or
kind” must be from the same country as the goods being valued.
C. Interpretation and Application of Article 6
No jurisprudence or decision
of a competent WTO body.
VIII. Article 7
back to top
A. Text of Article 7
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.
B. Text of Interpretative Note
to Article 7
Note to Article 7
1. Customs values determined
under the provisions of Article 7 should, to the greatest extent
possible, be based on previously determined customs values.
2. The methods of valuation to
be employed under Article 7 should be those laid down in
Articles 1
through 6 but a reasonable flexibility in the application of such
methods would be in conformity with the aims and provisions of Article
7.
3. Some examples of reasonable
flexibility are as follows:
(a) Identical goods
— the
requirement that the identical goods should be exported at or about the
same time as the goods being valued could be flexibly interpreted;
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; customs values of identical imported goods already determined
under the provisions of Articles 5 and 6 could be used.
(b) Similar goods
— the
requirement that the similar goods should be exported at or about the
same time as the goods being valued could be flexibly interpreted;
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; customs values of similar imported goods already determined
under the provisions of Articles 5 and 6 could be used.
(c) Deductive method
— the
requirement that the goods shall have been sold in the “condition as
imported” in paragraph 1(a) of Article 5 could be flexibly
interpreted; the “90 days” requirement could be administered
flexibly.
C. Interpretation and Application of Article 7
1. Article 7.2(f)
8. Developing countries can
suspend the application of this paragraph making a reservation to
established minimum values, in accordance with paragraph 2 of Annex
III.
See below interpretation and application of paragraph 2 of Annex III,
paragraphs 38–39 below.
IX. Article 8
back to top
A. Text of Article 8
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.
B. Text of Interpretative Note to Article 8
Note to Article 8: Paragraph 1(a)(i)
The term “buying commissions”
means fees paid by an importer to the importer’s agent for the service
of representing the importer abroad in the purchase of the goods being
valued.
Paragraph 1(b)(ii)
1. There are two factors
involved in the apportionment of the elements specified in paragraph
1(b)(ii) of Article 8 to the imported goods — the value of the element
itself and the way in which that value is to be apportioned to the
imported goods. The apportionment of these elements should be made in a
reasonable manner appropriate to the circumstances and in accordance
with generally accepted accounting principles.
2. Concerning the value of the
element, if the importer acquires the element from a seller not related
to the importer at a given cost, the value of the element is that cost.
If the element was produced by the importer or by a person related to
the importer, its value would be the cost of producing it. 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 reflect
its use in order to arrive at the value of the element.
3. Once a value has been
determined for the element, it is necessary to apportion that value to
the imported goods. Various possibilities exist. For example, the value
might be apportioned to the first shipment if the importer wishes to pay
duty on the entire value at one time. As another example, the importer
may request that the value be apportioned over the number of units
produced up to the time of the first shipment. As a further example, the
importer may request that the value be apportioned over the entire
anticipated production where contracts or firm commitments exist for
that production. The method of apportionment used will depend upon the
documentation provided by the importer.
4. As an illustration of the
above, an importer provides the producer with a mould to be used in the
production of the imported goods and contracts with the producer to buy
10,000 units. By the time of arrival of the first shipment of 1,000
units, the producer has already produced 4,000 units. The importer may
request the customs administration to apportion the value of the mould
over 1,000 units, 4,000 units or 10,000 units.
Paragraph 1(b)(iv)
1. Additions for the elements
specified in paragraph 1(b)(iv) of Article 8 should be based on
objective and quantifiable data. In order to minimize the burden for
both the importer and customs administration in determining the values
to be added, data readily available in the buyer’s commercial record
system should be used in so far as possible.
2. For those elements supplied
by the buyer which were purchased or leased by the buyer, the addition
would be 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.
3. The ease with which it may
be possible to calculate the values to be added will depend on a
particular firm’s structure and management practice, as well as its
accounting methods.
4. For example, it is possible
that a firm which imports a variety of products from several countries
maintains the records of its design centre outside the country of
importation in such a way as to show accurately the costs attributable
to a given product. In such cases, a direct adjustment may appropriately
be made under the provisions of Article 8.
5. In another case, a firm may
carry the cost of the design centre outside the country of importation
as a general overhead expense without allocation to specific products.
In this instance, an appropriate adjustment could be made under the
provisions of Article 8 with respect to the imported goods by
apportioning total design centre costs over total production benefiting
from the design centre and adding such apportioned cost on a unit basis
to imports.
6. Variations in the above
circumstances will, of course, require different factors to be
considered in determining the proper method of allocation.
7. In cases where the
production of the element in question involves a number of countries and
over a period of time, the adjustment should be limited to the value
actually added to that element outside the country of importation.
Paragraph 1(c)
1. The royalties and licence
fees referred to in paragraph 1(c) of Article 8 may include, among other
things, payments in respect to patents, trade marks and copyrights.
However, the charges for the right to reproduce the imported goods in
the country of importation shall not be added to the price actually paid
or payable for the imported goods in determining the customs value.
2. Payments made by the buyer
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 to the country
of importation of the imported goods.
Paragraph 3
Where objective and
quantifiable data do not exist with regard to the additions required to
be made under the provisions of Article 8, the transaction value cannot
be determined under the provisions of Article 1. As an illustration of
this, a royalty is paid on the basis of the price in a sale in the
importing country of a litre of a particular product that was imported
by the kilogram 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.
C. Interpretation and Application of Article 8
1. Article 8.1
(a) Treatment of interest
charges in the customs value of imported goods
9. At its meeting of 12 May
1995, the Committee on Customs Valuation adopted the decision of the
Tokyo Round Committee on Customs Valuation relating to the treatment of
interest charges in the customs value of imported goods.(5)
(b) Article 8.1(b)(iv)
10. At its meeting of 12 May
1995, the Committee on Customs Valuation adopted the decision of the
Tokyo Round Committee on Customs Valuation relating to the
interpretation of the term “undertaken” used in Article
8.1(b)(iv).(6)
11. At the same meeting, the
Committee on Customs Valuation adopted the decision of the Tokyo Round
Committee on Customs Valuation relating to the linguistic consistency of
the item “development” in Article
8.1(b)(iv).(7)
Footnotes:
1. WT/GC/M/59, paras. 22–26.
back to text
2. G/VAL/M/1, Section J. Those decisions are referred to in
paragraphs 3, 4, 9, 10,
11, 20, 26,
33 and 34 of this
Chapter. back to text
3. G/VAL/M/1, paras. 66–67; see also
G/VAL/W/1, Section A.4.
The text of the decision can be found in G/VAL/5, Section A.4. back to text
4. G/VAL/M/1,
paras. 66–67; see also G/VAL/W/1, Section A.5.
The decision can be found in G/VAL/5, Section A.5. back to text
5. G/VAL/M/1,
paras. 66–67; see also G/VAL/W/1, Section A.3.
The text of the decision can be found in G/VAL/5, Section A.3. back to text
6. G/VAL/M/1,
paras. 66–67; see also G/VAL/W/1, Section A.1.
The text of the decision can be found in G/VAL/5, Section A.1. back to text
7. G/VAL/M/1,
paras. 66–67; see also G/VAL/W/1, Section A.2.
The text of the decision can be found in G/VAL/5, Section A.2. back to text
|
