LIQ-9-CO:R:C:E 223745 PH

District Director of Customs
Charleston, South Carolina 29402

RE: Application for Further Review of Protest No. 1601-91- 100308; Protest, What Is; 19 U.S.C. 1514 Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the points raised by your office and the protestant. Our decision follows (copies of documents in the file, which we understand you may need for the processing of the protest, are returned with this ruling).

FACTS:

According to the file, on June 13, 1989, the protestant imported four knitting machines. The merchandise was entered on July 12, 1989, under subheading 9801.00.10, Harmonized Tariff Schedules of the United States Annotated (HTSUSA), free of duty, as "U.S. Goods Exported for Temporary Use Abroad". On August 9, 1989, a Request for Information (CF 28) was sent to the protestant, requesting sufficient export documentation to substantiate the claim (this CF 28 and the second CF 28 cited a different entry, by a different importer, than the entry under protest). In the CF 28 it was stated that failure to provide the requested information would result in liquidation of the entry as dutiable. It was stated that classification was contemplated under heading 8447.90, HTSUSA. No response was received and a second CF 28 was issued on December 12, 1989. No response was received to this second request and on March 20, 1990, a Notice of Action (CF 29) was issued advising that in the absence of sufficient documentation to substantiate the claim for United States goods returned, the merchandise was properly classifiable under heading 8447.90, HTSUSA. On March 27, 1990, the protestant sent a letter to the Customs officer who signed the CF 29 stating that the merchandise under consideration had been shipped abroad and then returned. Copies of supporting documentation were forwarded with this letter. The entry was liquidated, with duty and classification under heading 8447.90, HTSUSA, on April 20, 1990.

On April 19, 1991, the protestant (through a representative) filed an application for reliquidation under 19 U.S.C. 1520(c)(1). According to this claim, "[d]ue to clerical error incomplete invoices were presented by the importer which created a mistake of fact, and a bill was generated at liquidation. This machinery is actually, warp knitting machines eligible for duty- free entry, of West German origin, and was previously imported as such." On June 8, 1991, Customs denied the application for reliquidation on the basis that the issue involved was a classification issue which does not qualify for relief under section 1520(c)(1).

On November 12, 1991, the representative of the protestant wrote to Customs contending that correspondence of which he provided copies constituted a timely protest of the liquidation of the entry. This correspondence included the March 27, 1990, letter from the protestant to Customs (referred to above), and a May 1, 1990, inter-office memorandum from the protestant to the District Director of Customs stating "I do not understand what these charges are for. This is much more tha[n] we usually pay for duty charges on our shipments. Please send me detailed information on this shipment." The latter document cited as its subject a "SERVICE BILL" number. Customs had responded to the May 1, 1990, memorandum with a hand-written communication on the same memorandum suggesting that the protestant contact its broker and that the protestant should have received a CF 29 advising how duty was to be charged. On November 26, 1991, the District Director responded to the protestant's November 12, 1991, letter and advised that no authority existed under which relief could be granted in this case. On December 10, 1991, the protestant filed the protest under consideration.

ISSUES:

(1) May the May 1, 1990, inter-office memorandum described in the FACTS portion of this ruling be considered a protest, for purposes of 19 U.S.C. 1514?

(2) If the May 1, 1990, inter-office memorandum is considered to be a protest, may the hand-written response by Customs on the same memorandum be considered a denial of that protest?

(3) Are the knitting machines which are the subject of this protest classifiable under subheading 8447.20.40, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and free of duty? LAW AND ANALYSIS:

Initially, we note that the denial of the protestant's application for reliquidation under 19 U.S.C. 1520(c)(1) is not at issue in this case, because that denial was not timely protested.

Pursuant to 19 U.S.C. 1514, decisions of Customs officers as to the classification and rate and amount of duties chargeable are final and conclusive unless a protest is filed in accordance with that provision or unless there is filed a civil action contesting the denial of such a protest. Section 1514 provides that a protest filed under that section must be filed in writing with the appropriate Customs officer (as designated by regulation) setting forth distinctly and specifically each decision protested, each category of merchandise affected by each such decision, and the nature of each objection and the reasons therefor. The Customs Regulations pertaining to protests under section 1514 are found in 19 CFR Part 174. Sections 174.12 - 174.16 of this Part concern the procedures for protests.

In this case, the protestant apparently is claiming that either: (1) the March 27, 1990, letter from the protestant to Customs contending that the merchandise under consideration had been shipped abroad and then returned; or (2) the May 1, 1990, inter-office memorandum from the protestant to the District Director of Customs questioning what the charges were for and stating that the duties were much more than usual, was a protest. Clearly, the March 27, 1990, letter cannot be considered a protest because it was premature (see the explicit wording of the statute (19 U.S.C. 1514(c)(2)); see also United States v. Reliable Chemical Co., 66 CCPA 123, 605 F. 2d 1179 (1979)).

With regard to the May 1, 1990, inter-office memorandum, as the protestant suggests, the Courts have frequently addressed the question of what sort of communication may be treated as a protest. In the U.S. Supreme Court case of Arthur v. Morgan, 112 U.S. 495 (1884), that Court stated:

A protest is not required to be made with technical precision, but is sufficient if it shows fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure. [112 U.S. at 501.]

Similarly, in Eaton Manufacturing Co. v. United States, 60 CCPA 23, C.A.D. 1076, 469 F. 2d 1098 (1972), the Court stated:

This statutory provision [i.e., 19 U.S.C. 1514] and its predecessors have been construed to mean that a protest must be sufficiently precise to insure that the collector will know what it is in the mind of the protestant ... and to indicate that the objection taken at trial was fairly in the mind of the protestant when the protest was made. [60 CCPA at 29.]

In Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D. 4547, 377 F. Supp. 955 (1974), cited by the protestant, the Court concluded, after reviewing the treatment by the Courts of the issue of the sufficiency of a protest:

In short, the court, taking a liberal posture, has held that, however cryptic, inartistic, or poorly drawn a communication may be, it is sufficient as a protest for purposes of section 514 if it conveys enough information to apprise knowledgeable officials of the importer's intent and the relief sought. [72 Cust. Ct. at 262.]

(See also, Grover Piston Ring Co., Inc. v. United States, 3 Fed. Cir. (T) 57, 58, 752 F. 2d 626 (1985), "The statute specifies that the protest must set forth each decision (liquidation) protested, each category of merchandise affected by each such decision, and the nature of each objection and reasons therefor" (emphasis in original), affirming 7 CIT 286, 287 (1984), "The entry number, dates of entry and dates of liquidation are among other information required to be set forth in a protest ... Plaintiff not having listed the entry numbers, etc. of the 99 entries, the protest was insufficient as to those entries". See General Electric Co. v. United States, 7 Ct. Cust. App. 157, 160, T.D. 36464 (1916); Carson M. Simon & Co. v. United States, 55 Cust. Ct. 103, 107, C.D. 2558 (1965); and Cengar U.S., Inc. v. United States, 62 Cust. Ct. 350, 351-352, C,D, 3762 (1969), for cases indicating that some indication must be made in the protest of the tariff classification or rate of duty which is proposed (e.g., "When the importer has selected the right paragraph, although confining the claim to the wrong clause in the paragraph, the courts have held that the protest was sufficiently specific to apprise the collector of what the importer was claiming", Simon, supra).)

The only document which could possibly be a timely-filed protest in this case is the May 1, 1990, inter-office memorandum. This document did not provide an entry number, date of entry, or a date of liquidation (see Grover Piston Ring Co., supra). Nor did this document set forth the nature of the objection and the reasons therefor (see Grover Piston Ring Co., supra; see also Mattel, supra, in which the Court stated that a protest must at least convey enough information to apprise knowledgeable officials of the importer's intent and the relief sought; note that in Mattel, supra, cited by the protestant, the entry number, the date of entry and liquidation, the classification as liquidated, and the proposed classification were stated). Further, we note that to be sufficient, a protest must show that the objection made was in the mind of the protestant at the time of the protest (see Arthur v. Morgan, supra, and Eaton Manufacturing Co., supra). In this case, all evidence in the file shows that at the time of the May 1, 1990, inter-office memorandum, the protestant was contending (incorrectly) that the merchandise was classifiable under subheading 9801.00.10, HTSUSA, as products of the United States returned. The April 19, 1991, application for relief under 19 U.S.C. 1520(c)(1), is the first contention (in the file) by the protestant that the West German origin merchandise should have been classified under subheading 8447.20.40, HTSUSA, as now claimed by the protestant (as noted above, since the protestant did not timely protest the denial of this application, we may not consider whether the denial of the application was proper). Based on the foregoing, and on the Court decisions discussed above, we conclude that the May 1, 1990, inter-office memorandum may not be considered a protest.

Because the May 1, 1990, inter-office memorandum may not be treated as a protest, we need not determine whether the hand- written response on that inter-office memorandum should be treated as a protest denial. (In this regard, however, see the explicit words of 19 U.S.C. 1515(a), as amended in 1979; see also, Sea-Land Service v. United States, 735 F. Supp. 1059 (CIT 1990), affirmed, 923 F. 2d 838 (CAFC 1991).) For the same reason, we need not address the proper classification of the merchandise under consideration. (In this regard, however, see rulings 856821 (N.Y.) and 088061, and material in the file for the latter, with regard to the classification of warp knitting machines.)

On the basis of the foregoing, the protest is DENIED.

HOLDINGS:

(1) The May 1, 1990, inter-office memorandum described in the FACTS portion of this ruling may not be considered a protest, for purposes of 19 U.S.C. 1514.

(2) Because the May 1, 1990, inter-office memorandum may not be considered a protest, the issue of whether the hand- written response by Customs on the inter-office memorandum may be considered a denial of the protest is not addressed.

(3) Because the May 1, 1990, inter-office memorandum may not be considered a protest, the issue of the proper classification of the knitting machines which are the subject of this protest is not addressed.

The protest is DENIED. A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division