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HQ 223086


February 10, 1992

PRO-2-02-CO:R:C:E 223086 PH

CATEGORY: PROTEST

Regional Commissioner
New York Region
ATTN: Head, Protest and Control Section

RE: Protest 1001-91-000771; Demand for Redelivery; Country of Origin; 15 U.S.C. 1124, 1125

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the points raised by your office and the protestant. Our decision follows.

FACTS:

According to the file, the protestant entered 160 dozen ladies' lambswool sweaters, marked with Macau as the country of origin, on September 13, 1990. On October 29, 1990, Customs issued a demand for redelivery for the merchandise, stating in the "Remarks" portion of the form: "Not admissible. 'False Designation of Origin.' In violation of 15 U.S.C. 1124/1125. This is a demand for re-delivery." The protestant protested the demand for redelivery on January 25, 1991, and applied for further review.

In the Customs Protest and Summons Information Report (CF 6445), the District Director takes the position that the protest should be denied because "the factory that supposedly produced these sweaters was not capable of knitting sweaters". This finding is stated to have been made by the Office of Enforcement.

In its brief submitted with the protest, the protestant claims that the merchandise was, in fact, the product of Macau and that there is no substantive evidence supporting the allegation by Customs of false designation of origin and, consequently, no basis for issuance for the demand for redelivery. Therefore, the protestant argues, the demand for redelivery should be cancelled. The protestant states that because the demand for redelivery was issued almost seven weeks after entry and release by Customs of the merchandise, and because the merchandise is highly seasonable, the merchandise had long since been delivered to the protestant's customers and redelivery was impossible.

The protestant states that to the best of its knowledge, the merchandise under consideration was made in Macau by the manufacturer listed as the manufacturer of the merchandise in the documents it submitted. The basis for this belief is information furnished by the protestant's buying agent and statements received from the alleged manufacturer.

With its protest, the protestant submitted copies of a "Confirmation of Order" dated May 31, 1990 (amended June 7, 1990), for 300 dozen sweaters to be shipped from Macau, listing the alleged manufacturer as the manufacturer, and providing that shipping marks for the merchandise are to include "Made in Macau" and two Customs Forms 661 (Special Customs Invoice) (visas) issued May 4 and 5, 1990, for a total of 160 dozen ladies' lambswool sweaters, listing Macau as the country of origin of the goods (Numbers 020862 and 020972). Also submitted by the protestant were documents purported to have been issued by the alleged manufacturer or signed by an official of the alleged manufacturer as to the manufacture and/or processing of the merchandise in Macau.

With regard to the visas for the merchandise, referred to above, we have received a copy of a communication dated November 21, 1991, from the Director of the Office of Economic Services of Macau stating that the visas were revoked and a fine was assessed against the manufacturer of the merchandise under consideration because they were not produced according to the rules of origin.

ISSUE:

Is there sufficient evidence in this protest/application for further review to grant the protest of the demand for redelivery of the merchandise under consideration?

LAW AND ANALYSIS:

Initially, we note that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. 1514 and 19 CFR Part 174) and that the decision protested, a demand for redelivery, is a protestable decision (see 19 U.S.C. 1514(a)(4)).

In interpreting 19 U.S.C. 1514 and its predecessors, the Courts have held that Customs decisions are presumed to be correct and there is a burden on the protestant to show that Customs decisions are incorrect and to prove that the position advocated by the protestant is correct (see Hayes-Sammons Chemical Co. v. United States, 55 CCPA 69, 72, C.A.D. 935 (1968); Wishnatzki & Nathel v. United States, 13 Cust. Ct. 221, C.D. 898 (1944) (with regard to the issue of the correct country of origin); and United States v. Hudson Forwarding & Shipping Co., 18 CCPA 258, 262, T.D. 44427). In the last cited case, the Court stated:

The classification of the collector is presumed to be correct, and therefore the burden was upon the appellee to overcome such presumption by testimony making a prima facie case controverting the presumed facts. If such prima facie case be made by the importer, it becomes a matter of weighing the evidence, and the presumption of correctness attached to the finding of the collector is not to be regarded as having evidential value, and can not be weighed against the evidence challenging the correctness of his findings. [18 CCPA at 262.]

The evidence in this case favoring the protestant consists of a "Confirmation of Order" for 300 dozen ladies' lambswool sweaters to be shipped from Macau, which is claimed to represent an order for the merchandise under consideration (which consists of 160 dozen ladies' lambswool sweaters), visas for 160 dozen ladies' lambswool sweaters listing Macau as the country of origin, and statements of the alleged manufacturer or an official of the alleged manufacturer alleging that the origin of the sweaters was Macau. On the other hand, as stated in the FACTS portion of this ruling, we have received evidence that these visas have been revoked by the Government of Macau. Further, the credibility of the alleged manufacturer of the sweaters is damaged by the action of the Government of Macau in revoking the visas and fining the alleged manufacturer because the sweaters under consideration were not produced according to the rules of origin. After reviewing this evidence, we conclude that even if the protestant may have made a prima facie case that the origin of the sweaters under consideration was Macau (and we do not concede that this is so, in light of the communication from the Government of Macau, referred to above), the weight of the evidence supports the denial of admissibility of the sweaters under 15 U.S.C. 1124 and 1125. The protest is DENIED.

HOLDING:

The weight of evidence in this protest/application for further review supports the denial of admissibility, under 15 U.S.C. 1124 and 1125, of the merchandise under consideration. The protest against the demand for redelivery of the merchandise under consideration must be denied.

You are directed to deny the protest under consideration. A copy of this decision should be attached to the Form 19, Notice of Action, to be sent to the protestant.

Sincerely,

John Durant, Director

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