LIQ-9/CLA-2-RR:IT:EC 224447 SLR/PH

Port Director of Customs
San Diego, California 92188

RE: Protest No. 2501-93-100001; 9801.00.10, HTSUS; American Goods Returned; Documentary Requirements; 19 U.S.C. 1514 Dear Sir or Madame:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided, and the points raised, by your office and the protestant. As described in the ruling, the protestant has met with officials of this office and has submitted additional material. We are enclosing copies of all additional material for your file. Our decision follows.

[The decision in the HOLDING of this ruling grants the protest, subject to the conditions that the protestant submit certain documentation described in the ruling and satisfactorily resolve discrepancies between the original entry documentation and the "corrected" entry documentation, including correlating the total of 22,380 units returned with the corresponding units incorrectly entered on the original entry documentation. The protestant should be given written notice of these requirements (by quoting from the portion of the HOLDING describing the requirements). If the protestant fails to meet these requirements within 45 days of the date written notice is provided to the protestant of the requirements, the protest should be DENIED.]

FACTS:

According to the file and Customs records, on June 24, 1992, the protestant entered certain merchandise from a related company in Mexico. The merchandise was entered as electric motors within certain specifications, under subheading 8501.10.4040, HTSUS, with an entered value of $641,202, dutiable at the rate of 6.6%, with total duty for this merchandise of $42,319.33. The merchandise was also entered under subheading 9802.00.80, HTSUS, with an entered value for this portion of the merchandise of $2,726,514, duty-free.

The invoice stated to have been filed with the entry under consideration (the invoice number is referred to on the Entry Summary form) describes the merchandise under consideration as 11,250 and 11,130 units of "Voice Coil Motor[s]", referring to part number 90-13177.

According to Customs records, the entry was liquidated as entered, on October 16, 1992.

On January 1, 1993, the importer protested the liquidation of the entry, stating:

As a result of a review of the importer's cost accounting, inventory control and invoicing procedures, the captioned entry was found to contain discrepancies in the information supplied to U.S. Customs originating in each of these areas. A revised commercial invoice which reflects the correct costs, quantities, part and HTSUS numbers is attached. For the convenience of the district director, a corrected CF7501 is presented herewith.

Most significant among the corrections is the change in a part number resulting in a decrease in the invoice value in the amount of $3,257,568.27. The items in question appear on page 4 of the commercial invoice, line items 1 & 2 of the original commercial invoice, the subpart series "002" was omitted causing these magnets to be invoiced as a finished voice coil motor.

The importer respectfully requests reliquidation with refund of excess duties deposited.

The "corrected CF7501" referred to in the protest listed the merchandise under consideration as other U.S. goods returned without being advanced or improved abroad, under subheading 9801.00.10992, HTSUS, free of duty. The "revised commercial invoice" described the merchandise as 11,250 units of a "Magnet Inner", part number 90-002-13177, and 11,130 units of a "Magnet", part number 90-002-13176.

Further review was requested, and according to Customs records, granted.

At the request of the protestant, personnel from this office met with the representative of the importer about this protest on February 7, 1995. After that meeting, by letter of April 7, 1995, the protestant submitted the following:

An affidavit dated April 3, 1995, by a person who stated that he was employed by the importer as Vice President, Finance in June 1992. The affiant stated that his responsibilities included determining the costs of products, preparation of bills of material, preparation of cost submissions for Customs and dealing with the importer's consultant hired by the importer to prepare documents for Customs. The affiant stated that the commercial invoice submitted with the entry under consideration referred to the magnets at issue in the protest as voice coil motors and listed them as part number 90-13177. The affiant stated that both line item descriptions should have referred to magnets, instead, and that the second description on the invoice, for a quantity of 11,130 magnets, should have made reference to part number 13176 instead of 13177. The affiant stated that certain documents submitted to Customs showing the return of the magnets in issue, numbered 13177 and 13176 in the invoice, to the manufacturer in the United States refer to the part numbers as part numbers 13404-1 and 13405-1, respectively. The affiant stated that the importer had changed from a "94 grade neodynimium iron boron magnet to a 97 grade neodynimium iron boron magnet", and that this resulted in a change in the part numbers from 13177 and 13176 to 13404 and 13405. The affiant stated that its consultant did not update its database to reflect these new part numbers, so that the invoice submitted with the protested entry was not updated to reflect the change in part numbers.

An invoice dated June 12, 1992, for the shipment of 11,130 units of "Hicorex ND permanent magnet[s]", customer parts 13405-1, from a U.S. company in Michigan (with the notation, "Made in USA") to a company in Mexico (the latter company was related to the protestant, according to documents in another protest file).

An invoice dated June 15, 1992, for the shipment of 11,250 units of "Hicorex ND permanent magnet[s]", customer parts 13404-1, from the same U.S. company as is referred to above to the same company in Mexico as is referred to above.

A numbered "discrepancy report" with the letterhead of the protestant (and/or the related company in Mexico) stating that an order of 11,130 units of part 13405-1 was rejected because of "embedded particles in coating". The document is checked to indicate "debit supplier", and is signed, with a date of signature of June 23, 1992.

A numbered "discrepancy report" with the letterhead of the protestant (and/or the related company in Mexico) stating that an order of 11,250 units of part 13404-1 was rejected because of "embedded particles in coating". The document is checked to indicate "debit supplier", and is signed, with a date of signature of June 23, 1992.

A document on the letterhead of the protestant listing 11,130 units of part 13405-1 and 11,250 units of part 13404-1, referring to the numbered "discrepancy report[s]" described above and indicating that the parts were shipped to the U.S. manufacturer referred to above. The document is signed by the person stated to have prepared it, and is dated June 23, 1992.

A document on the letterhead of the protestant (indicated to be a debit memo) listing 11,130 units of part 13405-1 and 11,250 units of part 13404-1, referring to the numbered "discrepancy report[s]" described above, referring to the order numbers on the invoices for the shipments from the U.S. company in Michigan to the protestant (referred to above), indicating a "debit" was taken for this quantity of parts, and stating the charge for the "freight in" and "return freight".

A certification that certain parts, including part numbers 13176, 13177, 13404 and 13405, were manufactured by the above-referenced U.S. company in Michigan. The certification is dated March 12, 1992, and signed by a person stated to be the duly authorized representative of the above-referenced U.S. company in Michigan.

ISSUE:

May the referenced protest be granted?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days of the notice of liquidation (19 U.S.C. 1514(c)(3)) and that the matter protested is protestable (see 19 U.S.C. 1514(a) (2) and (5)).

Also in regard to procedure, we note that the grounds stated for the protest on the face of the protest form appear to contest the value of the imported merchandise and do not clearly raise the issues which facts, as described in the FACTS portion of this ruling, raise. However, we also note that the protest refers to and submits as attachments to the protest a corrected CF 7501 and revised commercial invoice, and that these documents do assert the classification of the merchandise as "American products returned" under subheading 9801.00.10, HTSUS. Thus, the protest did, although perhaps "cryptic[ly], inartistic[ly], or poorly drawn" (see Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D. 4547, 37 F. Supp. 955 (1974)), raise as a protested administrative decision the failure to classify the merchandise under subheading 9801.00.10. Therefore, the April 7, 1995, letter may be treated as submitting additional grounds or arguments in support of the protest (see 19 U.S.C. 1514(c)(1) and 19 CFR 174.28), which may be submitted at any time prior to disposition of the protest, and not as an amendment of the protest (see 19 U.S.C. 1514(c)(1) and 19 CFR 174.14)), which must be filed within the 90-day time for protest. See, in this regard, Audiovox Corp. v. United States, 8 CIT 233, 598 F. Supp. 387 (1984), affirmed 3 Fed. Cir. (T) 168, 764 F. 2d 848 (1985).

Insofar as applicability of subheading 9801.00.10, HTSUS, is concerned, that subheading provides for the duty-free treatment of products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad. Section 10.1(a), Customs Regulations (19 CFR 10.1(a)), outlines the necessary documentation required for duty-free treatment under subheading 9801.00.10. The documentation consists of a declaration by the foreign shipper in substantially the form described in 19 CFR 10.1(a)(1) and a declaration by the owner, importer, consignee, or agent having knowledge of the facts regarding the claim for free entry in substantially the form described in 19 CFR 10.1(a)(2). Under 19 CFR 10.1(b), if the value of the returned articles exceeds $1,250 and the articles are not clearly marked with the name and address of the manufacturer, Customs may require other additional documentation, such as a statement from the U.S. manufacturer verifying that they were made in the U.S. or an export invoice, bill of lading, or airway bill evidencing the U.S. origin of the articles and the reason for exportation of them. Under 19 CFR 10.1(d), if Customs is reasonably satisfied, because of the nature of the articles or production of other evidence, that the articles are imported in circumstances meeting the requirements of subheading 9801.00.10, the requirements for producing the documents under 19 CFR 10.1(a) may be waived.

In this case we are satisfied that the totality of the evidence presented is sufficient to show that the merchandise, invoiced in the corrected invoice as magnet inner, part 90-002-13177, and magnet, part 90-002-13176, is a product of the United States and was not advanced in value or improved in condition while abroad. That is, there is a statement by the U.S. manufacturer verifying that the merchandise (under any of the part numbers referred to) was manufactured by a company in Michigan. There are copies of shipping and other documents tracing the merchandise from the company in Michigan to the Mexican company and back. There are documents evidencing the reason for return of the merchandise to the United States. Thus, evidence meeting both of the alternative kinds of evidence described in 19 CFR 10.1(b) is provided. On the authority of 19 CFR 10.1(d), the requirement for the documents described in 19 CFR 10.1(a) may therefore be waived, subject to the following conditions:

(1) Under 19 CFR 10.1(a)(1) and (2), the declarations required therein require statements, among other things, that the merchandise for which duty-free treatment is sought is returned to the United States without having been advanced in value or improved in condition by any process or manufacture or other means abroad and that the merchandise was not manufactured or produced in the United States under subheading 9813.00.05, HTSUS, and that it was exported from the United States without benefit of drawback. If a knowledgeable, duly authorized official of the importer, such as the affiant in the affidavit described in the FACTS portion of this ruling, makes a declaration as to the above, the protest may be granted.

(2) There are inconsistencies in the original entry documentation and the "corrected" entry documentation. For example, the original entry summary lists a quantity of 25,367 units of electric motors and the corrected entry summary lists a quantity of 2,054 units of the electric motors and an unstated quantity of units stated to be other U.S. goods returned without being advanced in value or improved in condition and apparently representing the 22,380 magnets under consideration. Thus, the quantities on the "corrected" entry documentation are not accounted for, correlated, or explained on the "corrected" entry documentation. For another example, the "corrected" entry summary lists for invoice line 003 207 units, with an entered value of 204, of "US gds expd for temp use abroa", classified under subheading 9801.00.10108, HTSUS. The "corrected" invoice has only 1 "line" referring to subheading 9801.00.1010.8 (page 4 of invoice, for 34 kilograms of voice coil motors, 550 units, also referring to other subheadings). These inconsistencies must be satisfactorily (to Customs) resolved and the importer must correlate (or account for merchandise in) the original entry documents with the "corrected" entry documents (e.g., the 25,367 units of electric motors in the original entry documentation must be accounted for by explaining where these units are represented in the "corrected" entry documents (22,380 units are included in the magnets under consideration and 2,054 are apparently included as electric motors (line 002), leaving a balance of 933 units unaccounted for)). If there is no correlation between the entry documents, the protestant must satisfactorily (to Customs) explain why this is so. HOLDING:

The protest is GRANTED, subject to the conditions that:

(1) A knowledgeable, duly authorized official of the importer, such as the affiant in the affidavit described in the FACTS portion of this ruling, makes a written declaration that the merchandise for which duty-free treatment is sought is returned to the United States without having been advanced in value or improved in condition by any process or manufacture or other means abroad and that the merchandise was not manufactured or produced in the United States under subheading 9813.00.05, HTSUS, and that it was exported from the United States without benefit of drawback; and

(2) The discrepancies in the original entry documentation and the "corrected" entry documentation, as described above, are satisfactorily (to Customs) resolved, as described above. (E.g., the original entry documentation lists 25,367 units of electric motors. These 25,367 units must be ac- counted for by explaining where these units are represented in the "corrected" entry documents (22,380 units are included in the magnets under consideration and 2,054 are apparently included as electric motors (line 002), leaving a balance of 933 units unaccounted for). If there is no correlation between the entry documents, the protestant must satisfactorily (to Customs) explain why this is so.)

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office, with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director, Tariff
Classification Appeals Division

Enclosure