DRA-2-01-RR:CR:DR 227604 CK

Port Director of Customs
U.S. Customs Service
Houston Drawback Center
2350 Sam Houston Pkwy, Ste. 900
Houston, Texas 77032

RE: Application for further review of Protest No. 5301-97-100165; 19 C.F.R. 191.141; 19 C.F.R. 191.52; 19 U.S.C. 1313 (j)(1); Unused merchandise drawback; C.S.D. 82-38; HQ 222431; HQ 227421; HQ 227603

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.

FACTS:

According to the documentation in the file, Capro, Inc. (Protestant) filed two claims for unused merchandise drawback under 19 U.S.C. 1313 (j) for cable. According to the CF 19, Protestant made three entries, one of which was liquidated as entered, and two which were liquidated without refund. The subject of this protest is the denial of drawback for the two following entries, which were timely filed:

Entry Number Drawback Entry Date Liquidation Date

027-xxxx072-x 04/03/95 12/27/96 027-xxxx113-x 04/04/95 12/27/96

Drawback was denied on the grounds of failure to present landing certificates that reflect goods were actually exported. Namely in question are the dimensions of cable imported versus dimensions shown on the landing certificates.

Entry 027-xxxx072-x

The relevant import for this entry is 60 reels, 7,620 kgs. of cable, JP part # 10-3062, with a value of $191,835.03. Exporting 28 reels, 3,556 kgs. of JP part # 10-3062, with a value of $89,523.00. The parts are listed as ROPES, CBLS, CRDG, OTH: OTH, GALVAN. The CF 7539 also states an import date of 03/03/95, entry number 601-xxxx166-x, and a drawback entry date of 04/03/95, by Capro, Inc. Attached is a CF 7501 with the importer as Capro, Inc., import date of 03/03/95, the country of origin and export is Japan, importing 141 pkgs, 17,787 kgs., of ROPES, CBLS, CRDG, OTH: OTH, GALVAN-- HTSUS 7312.10.9030, with a duty rate of 3.6%. Also attached is an invoice from Apollo Corporation, number AC95-0206 from Japan, dated 02/06/95, the relevant listing being 60 reels, 750,000 meters of GO Cable Capro Parts No. 10-3062, 1.5 mm. 1x19+8x7 "GO," automobile parts for window regulator. Attached, as proof of export, is pedimento number 1200-5004881, dated 04/12/95 listing on line 2: CARRETES DE CABLE GALVANIZADO CON CAPA DE ESTANO, *VER OBS.*, with a value of $163,210.00. Stated in the section titled, OBSERVACIONES: MEDIDAS: 1.5 mm. 1x19+8x7, Y CARRETES DE CABLE GALVANIZADO, MEDIDAS: 1.5 mm. 1x19+8x9. The pedimento in this case does not list any part numbers, the number of reels, nor the kgs. of imported cable. Additionally, taking the OBSERVACIONES section, to remark that there were two sizes of cables imported, then we can only account for the origin of one of them-- 1.5 mm. 1x19+8x7. Additionally, Protestant attached to the pedimento, as proof of export, an export invoice dated 02/10/95, with entry number 601-xxxx166-x. This attachment shows further discrepancies, since the date on the export invoice and the date on the pedimento are not compatible, and the entry number is clearly different than the entry that it is supposed to evidence.

Entry 027-xxxx113-x

The relevant import for this entry is 40 reels, 5,080 kgs. of cable, JP part # 10-3064, with a value of $130,741.33. Exporting 8 reels, 1,016 kgs. of cable, JP part # 10-3064, with a value of $26,148.24. All parts are listed as ROPES, CBLS, CRDG, OTH:OTH, GALVAN. The CF 7539 also states an import date of 06/27/94, entry number 601-xxxx516-x, and a drawback entry date of 04/04/95, by Capro, Inc. Attached is a CF 7501 with the importer as Capro, Inc., import date of 06/27/94, the country of origin and export is Japan, importing 92 reels, 11,684 kgs., of ROPES, CBLS, CRDG, OTH: OTH, GALVAN-- HTSUS 7312.10.9030, with a duty rate of 4%. Also attached is an invoice from Apollo Corporation, number AC94-0531 from Japan, dated 03/31/94, the relevant item being 40 reels, 500,000 meters of GT Cable Capro Parts No. 10-3064, 1.5 mm. 1x19+8x7 "GT," automobile parts for window regulator. Attached, as proof of export, is a second copy of pedimento number 1200-5004881, dated 04/12/95 listing on line 2; CARRETES DE CABLE GALVANIZADO CON CAPA DE ESTANO, *VER OBS.*, with a value of $163,210.00. Stated in the section titled, OBSERVACIONES: MEDIDAS: 1.5 mm. 1x19+8x7, Y CARRETES DE CABLE GALVANIZADO, MEDIDAS: 1.5 mm. 1x19+8x9.

The attached pedimento is a duplicate of the pedimento used as proof of export for entry number 027-xxxx072-x. The pedimento does not list any part numbers, the number of reels, nor the kgs. of imported cable. Additionally, taking the OBSERVACIONES section, to remark that there were two sizes of cables imported, then we can only account for the origin of one of them, 1.5 mm. 1x19+8x9.

The Protestant-broker also submitted with the protest an inter-company packing list prepared by Capro. The ship date is 04/05/95, from Capro, Inc. to Capro De Mexico, listing 100,000 of part number 10-3064, 1.5 mm. diameter, 1x19+8x7, GALVANIZED TIN CABLE, skids 11,12, with a total weight of 2,475 lbs. Also on the list is 500,000 of part number 10-3062, 1.5 mm. diameter, 1x19+8x7, GALVANIZED CABLE, skids 5-10, 13, 16, with a total weight of 12,175 lbs. Also submitted is a pro-forma invoice prepared by a Mexican importer, number 95036, shipment date of 04/06/95 listing: CARRETES DE CABLE GALVANIZADO CPM CAPA DE ESTANA MEDIDAS: 1.5 mm. 1x19+8x7 (GALVANIZED CABLE TIN), 500,000 cantidad, with a total value of $134,800.00. Also listing CARRETES DE CABLE GALVANIZADO MEDIDAS: 1.5 mm. 1x9+8x9 (GALVANIZED CABLE), 100,000 cantidad, with a total value of $28,410.00. Protestant also submitted a third copy of pedimento number 1200-500481, entry date 04/12/95, stating on line 2; CARRETES DE CABLE GALVANIZADO CON CAPA DE ESTANO, *VER OBS.*, with a value of $163,210.00. Stated in the section titled, OBSERVACIONES: MEDIDAS: 1.5 mm. 1x19+8x7, Y CARRETES DE CABLE GALVANIZADO, MEDIDAS: 1.5 mm. 1x19+8x9.

Additionally, an affidavit was submitted by the Materials Control Manager of Capro De Mexico, dated 05/12/97, stating the following shipments were received by the Matamoros plant:

DATE RECEIVED PART NUMBER DIMEN-SIONS NUMBER OF COILS WEIGHT KILOS ENTRY NUMBER

04/06/95 10-3064 1.5 mm. 1x19+8x7 28 3,556 xxxx072x

04/06/95 10-3064 1.5 mm. 1x19+8x7 8 1,016 xxxx113x

While various documents have been submitted to establish an acceptable paper trail, Protestant's evidence has not been persuasive. The most glaring discrepancy is, of course, for entry number 027-xxxx072-x, where documents show 28 reels, 3,556 kgs. of JP part # 10-3062 were exported and drawback claimed, while the affidavit of the Materials Control Manager states that 28 coils, 3,556 kgs. of JP part # 10-3064 were received on 04/06/95. This discrepancy is basic and fatal in terms of a persuasive paper trail. Additionally, the credibility and truthfulness of the affidavit is questionable.

As far as entry number 027-xxxxx113-x is concerned, the pedimento used to establish the cable imported does not identify what cable was imported. The pedimento is the same one used to establish the entry of more than just entry number 027-xxxx113-x, while not delineating what part of the import belongs to each entry. Furthermore, the pedimento lists two sizes of cable: 1.5 mm. 1x19+8x7, and 1.5 mm. 1x9+8x9. There is no indication how much of each cable was entered, and no explanation where the other sized cable originated. Additionally, for both shipments to Mexico, neither the pedimento, nor the affidavit state the full part number of the cable. The part numbers "GT" and "GO" are used on invoices and packing slips, yet, they are not used at all for the exportation to Mexico, making it impossible to follow the exportation of the cable.

ISSUE:

Whether unused merchandise drawback may be denied for failing to match the identity, quantity, and value of the merchandise imported and exported.

LAW AND ANALYSIS:

We note initially that the refusal to pay a claim for drawback is a protestable issue pursuant to 19 U.S.C.  1514 (a) (6). Both entries were liquidated on 12/27/96. This protest was timely filed against the denial of drawback for the subject entries on 03/25/97, since the 90-day statutory and regulatory filing deadline was met under 19 U.S.C.  1514 and 19 C.F.R. Part 174.

Furthermore, we believe that the issues raised in this protest have already been decided in HQ 227421 and HQ 227603. We find that the discrepancies in this protest are also identical to the discrepancies found and discussed in both of those ruling. At issue in both of those rulings and the present one is the weight to be afforded to the evidence presented. Therefore, we will rely on the law and analysis used in HQ 227421 and cited in HQ 227603, in order to DENY this protest. Please find enclosed a copy of HQ 227421, in order to understand how we decided those cases, and how those cases raise identical issues and problems, which in turn, decide the present protest.

HOLDING:

In view of the fact that Protestant has failed to provide matching pedimentos for the cables exported from the U.S., and these facts and issues have already been decided in HQ 227421 and HQ 227603, this protest is DENIED.

Consistent with the decision set forth above, you are hereby directed to deny the subject protest. 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 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 the decision. Sixty days from the date of the decision of 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
Commercial Rulings Division