HQ 227487

February 17, 1998

LIQ-9-RR:CR:DR 227487

CATEGORY: LIQUIDATION

Port Director of Customs

U.S. Customs Service

6747 Engle Road

Middleburg Heights, OH 44130-7939

ATTN: William L. Plicka, IS

PROTEST SECTION

RE: Protest 4195-97-100027; MPF, refund, 19 U.S.C. 1520(d)

Dear Sir:

This is in reference to Protest 4195-97-100027 against the

refusal to refund merchandise processing fees collected with the

two entries involved.

FACTS:

Saturn Corporation made two entries 112-xxxx562-O and 112-xxxx707-1 on
February 1, 1995 and February 2, 1995, respectively.

Neither entry contained a request for tariff preference under the

North American Free Trade Agreement, as implemented by the act of

December 8, 1993 (107 Stat. 2057, Pub. L. 103-182).

The protest file contains a post-importation claim for entry

112-xxxx562-O. The claim was made by General Motors Corporation,

the protestant, rather than the importer. The claim is dated

December 22, 1995.

Handwritten notations on that claim form, which was assigned

the identification 4195-96-200049 indicate that the claim was

denied in part on June 26, 1996.

The protest file indicates that \$25 was paid in merchandise

processing fees

on entry 112-xxxx562-O.

ISSUES:

1\. Whether this protestant may protest the denial of its

claim.

2\. Whether the merchandise processing fee can be refunded in

a post-importation claim under 19 U.S.C. 1520(d).

LAW AND ANALYSIS:

Under 19 U.S.C. 1514, all decisions of an entry become final

and conclusive on all parties with certain exceptions. By virtue

of 19 U.S.C. 1520(d), an importer may make a post-importation

claim for tariff preference within one year after date of

importation. Under the law the importer is required to file a

written declaration that the imported good qualified under the

rules and the appropriate NAFTA certificate of origin.

The evidence in the file does not demonstrate compliance

with those requirements. The only declaration was filed by

General Motors Corporation and relates only to entry 112-xxxx

562-O. The importer on both entries is Saturn Corporation.

There is no evidence which shows that the two corporations are

two parts of one legal entity. On the contrary, the importer

identification numbers shown on the entries and the protest

differ. Also the protestant identifies itself as GMC General

Motors Can. While the mailing address for all entries is the

same, the fact of separate corporate status indicates they are

separate legal entities.

Under 19 U.S.C. 1514, the persons eligible to file a protest

are set in paragraph (c)(2). The only relevant listings include

the importer or consignee shown on the entry papers, the exporter

or producer who completed and signed a NAFTA certificate of

origin on the merchandise, or an authorized agent of either. With

respect to activities defined as customs business, which includes

filing entries, the payment of duties, taxes or other charges

assessed on imported merchandise, or the refund thereof, the only

authorized agent can be a licensed customhouse broker by virtue

of 19 U.S.C. 1641.

The protest file does not show that a proper post-importation claim was
filed under 19 U.S.C. 1520(d) by the

importer shown on the entry papers, Saturn Corporation. The file

does not contain any NAFTA Certificate of origin. The entry

invoices show that persons other than General Motors Corporation

were the producers of the merchandise. While the Customhouse

broker is shown by the documents to be the agent of both Saturn

Corporation and General Motors Corporation, the entries, the one

apparent NAFTA post-importation claim, and the protest show that

the principals acted in their separate capacities.

Consequently, unless compliance with the relevant statutes

cited can be shown, the protest is to be denied for the foregoing

reasons.

The second issue is whether, on a timely, proper post-importation claim
under 19 U.S.C. 1520(d), Customs is to refund

the merchandise processing fee associated with the eligible

merchandise. Customs has modified its prior position. Enclosed is

a copy of HQ 227605, including a copy of the general notice,

which should be applied in appropriate circumstances. To the

extent that the importer can demonstrate compliance with the

applicable statutes, as discussed above, the protest is to be

granted.

HOLDING:

The evidence does not show compliance with 19 U.S.C. 1514 or

1520(d). The importer is to be given 30 days from the date of

this decision to show that timely, proper claims for each entry

were made and that a proper protest against the denial of the

refund was made. If the importer fails to so demonstrate that

compliance, the protest is to be denied.

The merchandise processing fee collected on merchandise for

which a proper post-importation NAFTA claim is made is to be

refunded.

In accordance with Section 3A(11)(b) of Customs Directive

0993550-065, 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 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

Commercial Rulings Division

Enclosure