- Type : • HTSUS :
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Related:
536241
DRA-2-02 RR:CR:DR 230167 AL
Port Director
U.S. Customs and Border Protection
2350 North Sam Houston Parkway East, Suite 1000
Houston, Texas 77032-3126
Attention: Ms. Marva D. Batchan
Dear Sir or Madam:
This is in response to a request made by your office regarding protest number 5301-03-100284. It is the opinion of your office that this Protest does not meet the criteria for further review. Customs Regulations provide that a protesting party may seek further review of a protest in lieu of review by the District Director by filing an application for further review. See 19 CFR 174.23. Such a request must be filed within 90 days from the date of liquidation or the date of the decision which is being protested. In its protest, the protestant requested further review of the protest if the protest was denied in whole or in part by the Port. Here, the liquidation date of the subject entry was June 6, 2003 and the protest was dated June 13, 2003, therefore, the request for further review was timely filed. However, timely filing alone does not qualify for further review. See 19 CFR sections 174.24 – 174.25.
The criteria required for granting an application for further review are set forth in 19 CFR 174.24, which states, inter alia, that:
Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of §174.25 when the decision against which the protest was filed:
Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.
Therefore, further review will be accorded to the party filing an application for further review which meets the requirements of 19 CFR 174.25 and at least one of the criteria in 19 CFR 174.24.
Section 174.25 requires, inter alia, that an application for further review shall contain the following information: A statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in section 174.24. which justifies further review. The protestant contends that this protest warrants further review because it meets the criteria for further review. However, the protestant has not asserted any of the criteria for further review in its protest nor is any apparent. The protestant offers no specific ruling or decision with which the Port’s refusal to reliquidate the entry is inconsistent, nor what questions of law or fact have not been ruled upon previously.
The Port is of the opinion that further review is not justified. We agree. The protest fails to establish any one of the aforementioned criteria and thus does not meet the requirements of 19 CFR 174.24 or 19 CFR 175.25. If the port is in agreement, we question why the protest application for further review was granted. Generally, when a protest is determined to not meet the criteria for further review, our office has no reason to review the protest. However, since the protest has been forwarded to our office, we will provide the Port internal advice in accordance with Section 177.11, Customs Regulations. This regulation allows requests for “advice or guidance to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction…from the Headquarters Office at any time, whether the transaction is prospective, current, or completed.” 19 CFR §177.11(a).
Based on the information provided by the protestant and by your office, our decision is as follows.
FACTS
According to the protest, the entry number 225-XXXX721-3 entered the United States on July 23, 2002 and was liquidated on June 6, 2003. The protestant, General Electric Co. (PS) (“GEPS”) imported “steel bars” which originated from Austria. The subject merchandise was exported from a port in Germany on the “Sealand Achiever” to the Port of Houston. This importation is supported by a bill of lading, B/L No. 536241, dated July 19, 2002.
The CF 7501 for the subject entry refers to a pro forma invoice, invoice number 71112004. The pro forma invoice is on Bohler company’s letterhead and describes the following:
a. Consignee: GTTC/GE Power Systems (with a Laredo, TX address).
Customer/End User: GTTC (with a Mexico address).
Delivery to: Laredo, TX in-transit to Mexico
Delivery terms: FCA Kapfenberg
Price terms: FCA Kapfenberg
The “S/L Achiever” is mentioned on the invoice along with the description of the subject merchandise described as “stainless steel with chromium content greater than 10.5%.” The pro forma invoice is not dated.
The file contains two “GE Power Systems-Shipment Cover Sheet,” one from the forwarder dated July 9, 2002 to GEPS Customs Compliance, and the other, dated July 12, 2002 from the protestant’s seller to GEPS. The first cover sheet identifies the vessel and purchase orders. The second cover sheet contains the annotation, “Shipment is to be processed ‘In Transit’ through the U.S.”
The protestant has provided documentation in support of its assertion that the entered merchandise was subsequently exported to Mexico. The first document is an invoice between GEPS and GTTC, the foreign buyer of the subject merchandise, located in Nuevo Leon, Mexico. In addition, two two-page documents in Spanish and dated July 30, 2002, entitled, “Pedimento,” were submitted.
The protestant asserts that the subject entry should not have been entered as a consumption entry at the Port of Houston. The protestant asserts that a transportation and exportation entry should have been filed instead of the CF 7501 because at the time of importation, the subject merchandise was intended to be in-transit to Mexico. Therefore, the protestant seeks reliquidation of the entry and a refund in duties pursuant to 19 U.S.C. section 1514.
ISSUE
Whether the protestant is entitled to a reliquidation of the entry and a refund in duties pursuant to 19 U.S.C. section 1514.
LAW and ANALYSIS
We note initially that the instant protest was timely filed, i.e., within 90 days of the liquidation of the entries (19 U.S.C. section 1514(c)(3)(B)). Under 19 U.S.C. section 1514(a), decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . the liquidation or reliquidation of an entry . . . are final unless a protest of that decision is filed within 90 days of the decision (19 U.S.C. section 1514(c)(3)(B)). The subject entry was liquidated on June 6, 2003 and this Protest was filed on June 13, 2003. The “liquidation of an entry” is a protestable issue under 19 U.S.C. section 1514(a)(5). Therefore, the liquidation in the instant protest, is protestable.
The protestant requests the reliquidation of the subject entry and a refund of duty in accordance with 19 U.S.C. section 1514. Under 19 U.S.C. section 1514, seven decisions made by CBP are listed as final and conclusive. The one applicable to this case is 19 U.S.C. section 1514(a)(5) which states, in pertinent part, that:
Finality of decisions . . . Except as provided in . . . section 1520 of this title (relating to refunds and errors), decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section . . . .
Thus, the liquidation is final unless a protest is filed per 19 U.S.C. 1514(c)(3), “within ninety days after but not before . . . the date of the decision as to which protest is made” or as provided in 19 U.S.C. section 1520(c). We noted earlier that the liquidation is a protestable decision and that the protest was timely filed.
Here, the protestant asserts that a transportation and exportation entry should have been filed in lieu of a consumption entry, therefore, due to this error, the protestant contends that it is entitled to a reliquidation of the entry and a refund of its duties. In its “AFR Protest Transmittal,” the Port stated that “the protestant has not established a claim for a mistake of fact under 19 USC 1520(c)(1).” The Port further contends that the protest did not make a claim for reliquidation under 19 U.S.C. section 1520(c)(1). An importer need not resort to the procedure in 19 USC 1520(c)(1) if the protest period has not expired.
The protestant asserts that an error occurred where “[a] transportation and export bond should have been cut and the freight should have gone to . . . Mexico” instead of filing a consumption entry. In filing an entry, 19 USC section 1484(a)(1), states that,
Except as provided in sections 1490, 1498, 1552, and 1553 of this title, one of the parties qualifying as “importer of record” under paragraph (2)(B), either in person or by an agent authorized by the party in writing, shall, using reasonable care –
make entry therefor by filing with the Customs Service –
such documentation or, pursuant to an electronic data interchange system, such information as is necessary to enable the Customs Service to determine whether the merchandise may be released from customs custody, and
notification whether an import activity summary statement will be fled; and
complete the entry by filing with the Customs Service the declared value, classification and rate of duty applicable to the merchandise, and such other documentation or, pursuant to an electronic data interchange system, such other information as is necessary to enable the Customs Service to –
properly assess duties on the merchandise,
collect accurate statistics with respect to the merchandise, and
determine whether any other applicable requirement of law (other than a requirement relating to release from customs custody) is met.
Here, Emery Customs Broker filed a CF 7501 on behalf of the importer of record, on August 5, 2002. The information stated on the CF 7501 meets the requirements set forth in 19 USC 1484(a)(1)(B) and thus, the filing of the subject entry was complete. In addition, Emery Customs Broker filed a CF 3461 on July 23, 2002. In Box 3 of the CF 3461, the entry type code/name is described as “O1 Consumption.”
The case of Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct. 68, 69, C.D. 4874, 496 F. Supp. 1326 (1980) (hereinafter “Godchaux”) is relevant to the issue as to whether the election of a particular type of entry is a correctable error under any Customs law. In Godchaux, the Court stated that the “. . . plaintiff’s ‘mistake’ or ‘inadvertence’ was not in an entry, but rather in failing to make an entry . . . .” Similar to Godchaux, the protestant has not made a clerical error, a mistake of fact or other inadvertence in the subject entry. Instead, the protestant only asserts that its election to make a consumption entry rather than a transportation and exportation entry was an error. The entry as filed, correctly described the merchandise. The final determination of the duty due which constitutes a liquidation under 19 CFR 159.1, has not been shown to be an error.
The protestant has provided documentation to convey that its intent was to file a transportation and exportation entry. GEPS T000-07301 shows a sale to GTTC in Mexico of the subject merchandise. The invoice from Bohler (invoice # 71112004) to GTTC/GEPS shows that the ultimate destination of the subject merchandise is to be Mexico. The protestant asserts that these invoices and the documents entitled “Pedimento” demonstrate that its intent was to file a transportation and exportation entry. The GE Power Systems-Shipment Cover Sheet indicates an awareness by the protestant’s seller about two weeks before the goods arrived that a shipment to Mexico was intended. However, there is no direct evidence that the protestant’s broker who entered the goods was so instructed.
In American Customs Brokerage Co., Inc. a/c Astral Corp. v. United States, 375 F. Supp. 1360 (Cust. Ct. 1974) (hereinafter “Astral”), the Court determined that a yacht was not imported into the customs territory of the United States and that it was improperly assessed duty by Customs, because the evidence established that there had been no intent to import the yacht. Unlike in Astral, in this case, the protestant intended to import the subject merchandise, albeit for ultimate sale to Mexico.
A transportation and exportation entry is one of the types of entries that may be made for merchandise to be transported in bond under 19 USC 1553 and is implemented by 19 CFR 10.18(a)(4) and sections 10.20 to 10.24 of the Customs Regulations. Moreover, there is no evidence showing any compliance with 19 USC 1553 or the relevant regulations.
Here, the subject merchandise has been released and there is no authority in 19 CFR Part 18 to convert a consumption entry to a transportation and exportation entry after such time. While the facts show that the subject entry was made at the Port of Houston, and the protestant has asserted that it exported the subject merchandise to Mexico, no refund is allowed after the release of merchandise pursuant to 19 U.S.C. section 1558, which states, in pertinent part, that:
No remission, abatement, refund, or drawback of estimated or liquidated duty shall be allowed because of the exportation or destruction of any merchandise after its release from the custody of the Government . . . .
Although there are exceptions to 19 U.S.C. section 1558, including drawback, none of the exceptions apply here, in this case. Section 1558 precludes a refund of duties solely on the basis of an exportation. No drawback claim has been made. Moreover, it is not evident based on the evidence presented here, that an error was made in the liquidation of the consumption entry.
HOLDING
No refund of duty is allowed after the release of merchandise pursuant to 19 U.S.C. section 1558, solely on the basis of exportation, and there is no basis for reliquidation. The protest is to be denied. An error in electing a consumption entry rather than a transportation entry does not involve any error in the liquidation of the entry.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together 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 this decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division