CLA-2:CO:R:C:G 083879 SR
District Director of Customs
7911 Forsythe Blvd.
St. Louis, Missouri 63105
RE: Decision on Application for Further Review
of Protest No. 4501-8-000068.
This protest was filed against your decision in the
liquidation on April 1, 1988, of entry number 84-107526-5, dated
May, 8, 1984, covering a shipment of boots manufactured in Korea.
The merchandise involved is a man's eyelet bean boot,
imported by Nelson Weather-Rite, Inc., importer's style number
4095. The importer filed an invoice which claimed the weight
makeup of the boot to be 37 percent fiber, 60 percent rubber and
3 percent plastic, and stated the classification to be under item
700.35, TSUS. Although no weight for leather was listed, the
importer claimed that the boot upper has a surface area of over
60 percent leather. For this reason Customs rejected the invoice
as incorrect, and bonded the importer for a corrected invoice.
On October 24, 1984, the importer's broker submitted a new
footwear invoice that indicated that the boots were 37 percent by
weight of leather and possessed an exterior surface area of 60
percent leather. On June 1, 1984, Nelson Weather-Rite, Inc.
entered another shipment of the same style boot, from the same
manufacturer, with the same information as the resubmitted
invoice dated October 24, 1984, of 37 percent by weight of
leather with 60 percent of the exterior surface area of the upper
Whether the boot at issue is classifiable under item 700.57,
TSUS, or item 700.35, TSUS.
LAW AND ANALYSIS:
Item 700.57, TSUS, provides for footwear which is over 50
percent by weight of rubber or plastics or over 50 percent by
weight of fibers and rubber or plastics with at least 10 percent
by weight being rubber or plastics, other footwear (except
footwear having uppers of which over 50 percent of the exterior
surface area is leather), other hunting boots, galoshes,
rainwear, and other footwear designed to be worn over, or in lieu
of, other footwear as a protection against water, oil, grease, or
chemicals or cold or inclement weather.
The importer claims that the footwear at issue is over 50
percent of leather and therefore classifiable under item 700.35,
TSUS, which provides for footwear of leather, for men, youths,
The sample from the shipment of June 1, 1984, that was
tested by the Customs laboratory showed the exterior surface area
of the upper of the boot to be 48.1 percent leather. Because the
upper of this boot had under 50 percent surface area of leather,
it was classifiable under item 700.57, TSUS. The shipment from
which the boot was sampled was from the same manufacturer, the
same style number, cost the same, and had the same information on
the invoice as the boots in question. The second shipment was
imported a very short time after the first. It appears safe to
assume that the merchandise was the same for both shipments.
Customs does not ordinarily sample every shipment of the same
merchandise. For most types of merchandise, Customs will only
periodically sample shipments of the same merchandise, in order
to expedite the importing process.
The importer lists four court cases which he claims show
that Customs must accept his invoice as correct. United States
v. Bloomingdale Bros. & Co., 10 Ct. Cust. Appls. 149, T.D. 38400
(1920), held that the size of the sample that Customs tested was
insufficient to determine the yarn count for the material at
issue in the case. The method of testing and the results of the
test are not at issue in the current footwear case. The court in
Not only is the invoice prima facie evidence of that which
it declared, but unimpeached and not mistrusted or
discredited, it is the evidence which determines the
collector's action as to all imported merchandise which has
not been examined.
The invoice at issue is obviously false on its face and therefore
is discredited as well as mistrusted. Therefore, it cannot be
relied on as prima facie evidence.
None of the other three cases have facts that are relevant
to the facts at issue. In J.D. Smith Interocean, Inc. v. United
States, 79 Cust. Ct. 99, T.D. 4719 (1977), samples were believed
to be taken from the wrong compartment of the ship and were
therefore not the same merchandise at all. The sample tested in
Hawley & Letzerich v. United States, 19 CCPA 47, T.D. 44893
(1931), were also believed to be a different type of merchandise
than the merchandise that was being imported. In Albert F.
Maurer Co. v. United States, 61 Cust. Ct. 181, C.D. 3559 (1968),
the samples were also found to be taken from an insufficient
quantity of material to properly determine the makeup of the
Neither the proper testing nor the identification of the
footwear is at issue. The boot that was tested was taken from a
shipment from the same manufacturer, with the same model number
and price, sold to the same importer, with the same information
on the invoice, imported at approximately the same time.
The sample of the men's eyelet bean boot style number 4095,
was found by Customs to have an exterior surface area of the
upper of 48.1 percent leather. Therefore, the footwear at issue
is classifiable under item 700.57, TSUS.
The protest should be denied. A copy of this decision should be
attached to the Form 19 Notice of Action to satisfy the notice
requirement of section 174.30(a), Customs Regulations.
John Durant, Director
Commercial Rulings Division
6 cc A.D. New York Seaport
1 cc Durant
1 cc legal reference