CLA-2 CO:R:C:F 952806K
TARIFF No.: 9503.41.30; 9902.95.04
District Director of Customs
610 S. Canal Street
Chicago, Illinois 60607
RE: Application For Further Review of Protest No. 3901-92-100039;
Skins And Clothing For Stuffed Toys And Timeliness of
Protests
Dear Sir:
The following is our decision in response to the referral from
your office dated October 22, 1992, of the request for further
review of the above-referenced protest.
FACTS:
The protest concerns skins and clothing imported as parts and
accessories for stuffed toy animals ("Red October", a Teddy Bear).
From the facts presented in the protest file, we conclude that the
protest is untimely and should be denied. Further, if we were to
rule on the merits, we would have recommended a denial of the
protest. The substance of the facts are further detailed under the
discussion of law and analysis below.
ISSUE:
The issue is whether a timely protest was filed under either
19 U.S.C. 1514(a)(2) or (7).
LAW AND ANALYSIS:
Under 19 U.S.C. 1514(a)(2) and 1514(c)(2)(A), the liquidation
of the entry is final and conclusive upon all persons unless a
protest is filed within 90 days after the notice of liquidation
contesting the classification and rate and amount of duties
chargeable. The consumption entry was liquidated on July 30, 1990,
and the protest was received at the district office on
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January 21, 1992. Accordingly, the protest is untimely under 19
U.S.C. 1514(a)(2) and (c)(2)(A).
Under 19 U.S.C. 1520(c)(1), notwithstanding that a protest
was not filed, the appropriate Customs officer may reliquidate an
entry to correct a clerical error, mistake of fact, or other
inadvertence adverse to the importer not amounting to an error in
the construction of the law, if it is brought to the attention of
the appropriate customs officer within one year after the date of
liquidation. Under 19 U.S.C. 1514(a)(7) and(c)(2)(B), the decision
not to reliquidate is also final to all persons unless a protest
is filed with 90 days after the refusal of the Customs officer to
reliquidate for clerical error, mistake of fact, or other
inadvertence.
The consumption entry was liquidated on July 30, 1990. The
formal protest on Customs Form C-19 was received at the district
on January 21, 1992, and states that the "District Director, erred
in denying a duty refund based on our petition of 4/6/90." The
protest does not refer to a clerical error or mistake of fact or
any inadvertence but merely disputed the correct classification of
the merchandise which is an error in the construction of the law.
A form letter was sent to the protestant's broker by the district
on November 22, 1991, stating that the "petition under Section
520(c)(1)...will not be allowed." The reasons typed in the form
for the denial of the petition were "(1) No indication `Red
October' clothing is for `Red Vib' skins and (2) skins and clothing
do not constitute stuffed toys." No mention is made concerning the
date of a petition. If a timely request was made for reliquidation
under 19 U.S.C. 1520(c)(1) and denied on November 22, 1991, then
the protest received on January 21, 1992, would have been timely
for purposes of 19 U.S.C. 1514(a)(7) and (c)(2)(B). However, the
protest refers to a petition dated 4/6/90, which is dated before
and not after the date of liquidation of July 30, 1990. We must
conclude that a timely request was not made within one year after
the date of liquidation as required by 19 U.S.C. 1520(c)(1). If
a timely protest were filed under 19 U.S.C. 1514(a)(7), it would
be denied because no evidence was submitted to sustain a claim of
clerical error, mistake of fact or inadvertence.
The protest is denied because of untimeliness. However, we
will discuss the merits of the classification of the merchandise.
The consumption entry was liquidated with the skins and
clothing classifiable under other parts and accessories for toys
representing animals or nonhuman creatures, subheading 9503.41.30,
Harmonized Tariff Schedule of the United States (HTSUS). However,
heading 9902.95.04, then in effect, provided for the temporary free
entry of skins for stuffed toys representing animals or nonhuman
creatures provided for in subheading 9503.41.30. Accordingly, the
skins were liquidated
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free of duty under heading 9902.95.04 and the clothing, not covered
under the temporary free provision, was liquidated under subheading
9503.41.30, with duty at 6.8 percent ad valorem.
Stuffed toys are classifiable under subheading 9503.41.10 with
duty at 6.8 percent ad valorem. However, another free temporary
duty provision then in effect, heading 9902.95.02, covered certain
stuffed or filled toys representing animals or nonhuman creatures
provided for in subheading 9503.41.10. The protestant opines that
under rule 2(b), General Rules of Interpretation (GRI), HTSUS, the
skins have the essential character of the complete or finished
article (stuffed toy animals) and therefore skins together with the
clothing are classifiable as stuffed toy animals under subheading
9503.41.10, free of duty as provided for by heading 9902.95.02.
We do not agree with the position of the protestant.
Classification under HTSUS is governed by the GRI. Goods are
classified by application of GRI 1 according to the terms of the
headings of the tariff schedule and any relative Section or Chapter
Notes. In the event that the goods cannot be classified solely on
the basis of GRI 1, the remaining GRI may be applied. Skins or
clothing cut and sewn to specifications that permit suitability for
use solely or principally with stuffed toy animals of heading 9503
are considered parts or accessories to those toy animals. The
classification of the skins and clothing are governed by GRI 1,
HTSUS, and are classified as other parts and accessories of stuffed
toy animals, subheading 9503.41.30, HTSUS. The combination of
parts and accessories (skins and clothing) does not result in
unfinished or incomplete stuffed toy animals. The protest, if
timely filed, would have been denied on the basis of the
construction of the law.
HOLDING:
You are instructed to deny the protest as untimely. A copy
of this decision should be attached to Customs Form 19 Notice of
Action, to be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division