HQ 227245

May 6, 1997

LIQ-2-01/LIQ-2-02/LIQ-9/LIQ-10/PRO-2-02-RR:IT:EC 227245 PH

CATEGORY: Liquidation

Port Director of Customs

819 Water Street, Building 6

Laredo, Texas 78040

ATTN: Protest Section

RE: Protest 2304-96-100159; Claim for Preferential Tariff

Treatment under NAFTA; 19 U.S.C. 1514; 19 U.S.C. 1520(d); 19

CFR 181.31

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for

further review. We have considered the evidence provided and the

arguments made on behalf of the importer, as well as Customs

records relating to this matter. Our decision follows.

FACTS:

According to the file and Customs records, on February 22 and 28,

1995, the protestant imported certain paint products, described

on the Entry Summaries (Customs Form (CF) 7501) for the

merchandise as \"paints/varnish, aqueous, other.\" The dates of

entry for the merchandise were the same as the dates of

importation, February 22 and 28, 1995. The classification of the

merchandise stated on the Entry Summary was subheading

3209.90.0000, Harmonized Tariff Schedule of the United States

(HTSUS), with duty in the amount of \$5,527.83 for the first

importation and \$7,356.06 for the second. The entries were

liquidated as entered, with the first entry being liquidated on

June 9, 1995, and the second entry being liquidated on July 7,

1995\.

By letter to Customs of February 15, 1996 (received by Customs on

the same date), the broker for the protestant requested \"\... a

refund of duties as provided for under the provisions of \[19\] CFR

181.31.\" According to this letter:

This correspondence constitutes a Post-Importation Claim and

request for refund of duties as provided for in Article

502(3) of the North American Free Trade Agreement and 19 CFR

\[Part\] 181 Subpart D. This claim \... involves the following

entries \[the February 22 and 28, 1995, entries described

above are listed\] covering goods for which no claim for

preferential tariff treatment was made at the time of

importation.

Our client hereby states that the goods qualified as

originating goods at the time of importation and provides

copies of the Certificates of Origin pertaining to the goods

in question.

It is further stated by our client that: 1) no copy of the

entry summary documentation for the involved entries was

provided to any other party; 2) they are not aware of any

claim for refund, waiver or reduction of duties relating to

these goods; and 3) neither a protest nor a petition or

request for reliquidation relating to these goods has been

filed.

Included with the above letter was a February 14, 1996, NAFTA

Certificate of Origin, for the period January 1 through December

31, 1995, listing the merchandise described (by number) in the

entry documentation (the numbers in the invoice for the February

22, 1995, entry are not legible enough to be certain that they

are the numbers on the Certificate of Origin). The tariff

classification listed on the Certificate of Origin for the

merchandise under consideration is \"320910.\"

According to the file, upon receipt of the above-described

February 15, 1996, letter, Customs advised the broker that the

Certificate of Origin was not considered valid because the

classification on the Certificate was different than that on the

Entry Summary. When, after several weeks, the problem was not

rectified, the post-importation duty refund claim, in the

February 15, 1996, letter was denied by letter from Customs of

June 10, 1996, in which the reason for denial was stated as

\"\[y\]ou provided a certificate of origin with the wrong

classification which cannot be accepted for a NAFTA claim.\"

By letter of May 8, 1996 (received by Customs on the same date),

the broker for the importer requested \"\... under the provisions

of 19 CFR 173.4, the correction of a clerical error\' pursuant to

\[19 U.S.C. 1520(c)(1)\] on \[the entries involved in this matter\].

According to this letter:

At the time of submission of the entry, and the entry

summary (CF 7501), one of our clerks, through a

typographical error, put the wrong fifth (5th) digit on the

HTSUS number, using HTSUS 3209.90.0000 instead of

3209.10.0000, and duties were paid according to the wrong

classification.

With this letter, the broker enclosed copies of \"Chemical,

Product, and Company Information\" stated to show that \"the

product is indeed acrylic.\" In this letter, the broker referred

to the February 15, 1996, post-importation duty refund claim,

noting that the NAFTA Certificate of Origin submitted with that

claim shows \"HTSUS 3209.10.\" The request for reliquidation under

19 U.S.C. 1520(c)(1) was also denied on June 10, 1996, with the

stated basis for denial being \"\[a\]n error in the classification

of merchandise is correctable by the filing of a 19 U.S.C. 1514

protest within 90 days of liquidation; relief is not available

under 19 U.S.C. 1520(c)(1).\"

On June 26, 1996, the protest under consideration was filed,

against \"disallowance of a Post-Importation NAFTA refund claim

for the entries covered \....\" According to the protest:

\[The February 15, 1996, post-importation NAFTA duty refund

claim\] was denied \... because the classification on the

Certificate of Origin (HTSUS 3209.10) in block \# 6, and the

entry (HTSUS 3209.90) was different. The Certificate of

Origin classification was correct. An error was made on the

C.F. 7501. Regardless of the classification, HTSUS 3209.10

or HTSUS 3209.90, the importer states that the goods

qualified as originating goods and both of these

classifications are \"free\" under the preferential NAFTA duty

rate for goods that qualify as originating goods.

Further review was requested and granted.

ISSUE:

May the protest under consideration be granted.

LAW AND ANALYSIS:

Initially, we note that denial of a post-importation duty refund

claim under 19 U.S.C. 1520(d) is protestable under 19 U.S.C. 1514

(see Treasury Decision (T.D.) 95-68 (Customs Bulletin & Decisions

of September 20, 1995, vol. 29, no. 38, pages 12-13). We note

also that the protest under consideration was filed within 90

days of the date of the June 10, 1996, denial of the post-importation
duty refund claim and, therefore, was timely (see 19

U.S.C. 1514(c)(3)(B) and 19 CFR 174.12(e)(2)). We note that the

February 15, 1996, post-importation duty refund claim under

section 1520(d) was timely (filed within 1 year of importation)

(although the May 8, 1996, request for reliquidation under

section 1520(c)(1) was also timely (within 1 year of

liquidation), the denial of the section 1520(c)(1) request was

not protested).

Under 19 U.S.C. 1520(d):

Notwithstanding the fact that a valid protest was not filed,

the Customs Service may, in accordance with regulations

prescribed by the Secretary, reliquidate an entry to refund

any excess duties paid on a good qualifying under the

\[NAFTA\] rules of origin \... for which no claim for

preferential tariff treatment was made at the time of

importation if the importer, within 1 year after the date of

importation, files, in accordance with those regulations, a

claim that includes\--

\(1\) a written declaration that the good qualified under

those rules at the time of importation;

\(2\) copies of all applicable NAFTA Certificates of Origin

\...; and

\(3\) such other documentation relating to the importation

of the goods as the Customs Service may require.

The Customs Regulations promulgated under this provision are

found in 19 CFR 181.31 through 181.33. Section 181.32(b)

provides what must be contained in a post-importation duty refund

claim. The February 15, 1996, post-importation duty refund claim

in this case meets the regulatory requirements for the content of

such claims.

In a General Notice in the January 29, 1997, Customs Bulletin and

Decisions (vol. 31, no. 5, page 1), Customs published its

position on certain issues regarding NAFTA post-importation duty

refund claims under 19 U.S.C. 1520(d). In this notice, Customs

stated:

\[A\] post-importation duty refund claim may be granted where

the claim involves classification, valuation or other issues

that bear directly on the issue of whether the good would

have qualified as an originating good.

Customs went on to state that:

\[T\]he statute and regulation \[section 1520(d) and 19 CFR

181.31\] do not authorize Customs, upon receipt of a post-importation
duty refund claim, to reliquidate an entry for

purposes other than to refund excess duties paid on

qualifying goods under the NAFTA for which no claim for

preferential treatment was made at the time of importation.

\[Emphasis added.\]

On the basis of the above, Customs concluded that \"MPF\'s

\[merchandise processing fees\] may not be refunded pursuant to 19

U.S.C. 1520(d) and 19 CFR 181.31.\"

In this case, no claim for preferential tariff treatment under

NAFTA was made at the time of filing of the entry summary (see 19

CFR 181.21). The 19 U.S.C. 1520(d) post-importation duty refund

claim was filed within 1 year of importation and contained all

that is required to be contained in such claims (19 CFR

181.32(b). Duty-free treatment is and was (at the time under

consideration) provided for NAFTA originating goods for both the

tariff classification stated on the Entry Summary and that stated

on the NAFTA Certificate of Origin (we note that the protestant

states that the classification on the Certificate of origin is

the correct classification). In the February 28, 1995, entry,

the invoice lists under products (\"producto\") two numbers which

are the same as two of the numbers listed under the heading

\"Description of Good(s)\" in the NAFTA Certificate of Origin.

Thus, the requirements for a section 1520(d) post-importation

duty refund claim are met in the case of this entry and the

protest may be GRANTED as to this entry, as to duties only. As

stated in the Customs Bulletin & Decisions General Notice quoted

above, \"\[merchandise processing fees\] may not be refunded

pursuant to 19 U.S.C. 1520(d) and 19 CFR 181.31.\"

In the case of the February 22, 1995, entry, as noted above in

the FACTS portion of this ruling, the numbers listed in the

invoice under \"producto\" are not legible enough for this office

to be certain that they are numbers listed under the heading

\"Description of Good(s)\" in the NAFTA Certificate of Origin. The

requirements for a section 1520(d) post-importation duty refund

are met in the case of this entry and the protest may be GRANTED

as to this entry (for duties only), PROVIDED that you are

satisfied that the merchandise in the entry is covered by the

NAFTA Certificate of Origin submitted with the section 1520(d)

claim.

Of course, if you are not satisfied that the merchandise in the

February 22, 1995, entry is covered by the Certificate of Origin,

the protest must be DENIED (because the requirement in 19 U.S.C.

1520(d) for a copy of an applicable NAFTA Certificate of Origin

and the requirement in 19 CFR 181.32(b)(2) for a copy of a

Certificate of Origin pertaining to the good would not be met).

If the numbers for the merchandise in the invoice with the entry

documentation in your office for the February 22, 1995, are also

not legible enough to be certain that those numbers are covered

by the Certificate of Origin, the protestant may be given a

reasonable period (no more than 45 days from the date of notice

that the invoice is illegible in this regard) to provide a

clearer copy.

HOLDING:

The protest is GRANTED (as to duties only, merchandise processing

fees may not be refunded under 19 U.S.C. 1520(d) post-importation

duty refund claims), as to the February 28, 1995, entry. The

protest is GRANTED (as to duties only) as to the February 22,

1995, entry, PROVIDED that you are satisfied that the merchandise

in the February 22, 1995, entry is covered by the NAFTA

Certificate of Origin submitted with the section 1520(d)
post-importation duty refund claim. If you are not so satisfied

(i.e., if the invoice in the entry documents is not legible

enough to determine that the merchandise described in the invoice

is the same merchandise covered by the Certificate of Origin, and

the protestant does not provide a satisfactory copy of the

invoice within the time-period stated in the LAW AND ANALYSIS

portion of this ruling), the protest must be DENIED.

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,

Director, International

Trade Compliance Division