HQ 0223072 - Application for Further Review of Protest No. 5201-9-000417; 19 C.F.R. 191.61, compliance of drawback requirements. - United States International Trade Commision Rulings

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HQ 223072

August 12, 1991

DRA-1-01-CO:R:C:E 223072 SR

CATEGORY: ENTRY DRAWBACK

District Director of Customs
Southeast Region
909 S.E. First Avenue
Miami, Florida 33131-2595

RE: Application for Further Review of Protest No. 5201-9-000417; 19 C.F.R. 191.61, compliance of drawback requirements.

Dear Sir:

The above-referenced protest was forwarded to our office on Application for Further Review of Protest No. 5201-9-000417, dated October 20, 1989. We have considered the facts and the issue raised; our decision follows.

FACTS:

Tobacco was imported in 1978, 1979 and 1980. The tobacco was made into cigars and exported in 1983. Drawback entry was made in 1984, 1985, and 1986 for which accelerated payment was requested and received. After three years the entries were considered by Customs to be abandoned. In October of 1989, the importer filed a protest and at that time also filed the Certificates of Delivery (CF 7543) and a list of the designated entries. The protestant states that their Broker's records indicate that the Certificates of Delivery were "apparently" received and the attachments indicating the entry designations were prepared within the three year period. The protestant also states that they were never notified that the entries were incomplete and the claims might possibly have been lost by Customs.

ISSUE:

Whether the claims at issue can be considered as abandoned claims.

LAW AND ANALYSIS:

19 C.F.R. 191.61 provides the filing requirements for -2-
the completion of drawback claims. It reads as follows:

A drawback entry and all documents necessary to complete a drawback claim, including those issued by one Customs officer to another, shall be filed or applied for, as applicable, within 3 years after the date of exportation of the articles on which drawback is claimed, . . . Claims not completed within the 3-year period shall be considered abandoned. No extension will be granted unless it is established that a Customs officer was responsible for the untimely filing.

The protestant states that the broker has found indications in his records that the documents necessary to complete a drawback claim may have been filed on time. The protestant can not provide evidence to show timely completion of the claim. The protestant cannot show that the necessary documents were ever sent to Customs. There was no action taken by Customs that would have prohibited the timely filing of this claim.

It is well established that the burden is on the importer to show full compliance with the drawback statute and regulations and failing such proof no drawback can be allowed. Albers Bros. Milling Co. v. U.S., 16 Ct. Cust. App. 237, (1928); Ciba Company, Inc. v. U.S., 27 CUST. CT. 144, C.D. 1359 (1951); Swift & Co. v. United States, 10 Cust. Ct. 198, C.D. 753 (1943); see also C.S.D. 84-58.

HOLDING:

The drawback claimant failed to present evidence to support its assertion of compliance with 19 C.F.R. 191.61. No action on the part of a Customs officer prohibited the timely filing of the claim. Because the claims were not timely filed the claim for drawback is considered abandoned.

Accordingly you are directed to deny the protest. A copy of this decision should be furnished to the protestant in order to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John Durant, Director

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