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HQ 225118

April 18, 1994

DRA-4 CO:R:C:E 225118 DHS

CATEGORY: DRAWBACK

Mr. Sunder Sachdev
Allied India International
Allied House, Vasant Kunj
New Delhi-110 037 India

RE: Same condition drawback; Proof of Exportation

Dear Mr. Sachdev:

This is in response to your letter dated December 20, 1993, wherein you request information about receiving a refund of duties paid for imported merchandise, by Allied India International (hereinafter, Allied India), which was later allegedly exported from the United States.

FACTS:

Specific entry and drawback documentation has been provided to us by the Port Director in Columbus, Ohio, the drawback liquidator in Chicago and the broker, A. W. Fenton. From this documentation, we have ascertained that various Indian carpets, wearing apparel, handicrafts and jewelry were imported into the United States on July 28, 1988 and entered on August 4, 1988. A Customs Form (CF) 7539 (Drawback Entry Covering Same Condition Drawback) was filed on August 26, 1988, indicating that a portion of the originally imported merchandise was to be exported and drawback in the amount of $1266.01 would be claimed upon proof of exportation. The opportunity to examine the merchandise was waived by Customs on August 30, 1988. On that same day, the inspector or warehouse officer signed the CF 7512 (Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit), which was submitted by the broker, indicating that the merchandise covered by the drawback claim had been delivered to the carrier, to be transported from the Columbus, Ohio, port to the District Director in Buffalo, New York. The final destination reported on the CF 7512 is Paris, France. On October 11, 1988, Customs sent a letter to the broker requesting the export bill of lading or other proof of exportation in order to complete the drawback claim. On January 27, 1989, after failing to receive a reply to the request, Customs denied the drawback claim. A CF 29 (Notice of Action) was sent to the broker informing them of the action taken. Additionally, a courtesy notice was sent to Allied India at the mailing address shown on the drawback claim. No other response was received with respect to this claim until your recent communications to our office and the district office.
ISSUES:

Has proof of exportation been provided to substantiate the same condition drawback claim?

Is a remedy available to the drawback claimant when a timely protest has not been filed to a denied drawback claim?

LAW AND ANALYSIS:

Has proof of exportation been provided to substantiate the same condition drawback claim?

No refund or drawback of liquidated duty is allowed because of the exportation of any merchandise after its release from the custody of the government except "when articles are exported with respect to which a drawback of duties is expressly provided for by law; ...." (19 U.S.C. 1558)

Section 313(j) of the Tariff Act of 1930, as amended (19 U.S.C. 1313(j)) and section 191.8(b) of the Customs Regulations (19 CFR 191.8(b)) provide for a refund of 99% of the duties paid on imported merchandise exported in the same condition as when imported and not used within the United States before such exportation.

Section 191.71(e) of the Customs Regulations (19 CFR 191.71(e)) states that drawback shall be determined when the drawback claim has been completed by the filing of the entry and other necessary documents, and exportation of the articles has been established.

The Customs Service determined that the claim lacked sufficient evidence of exportation and requested further documentation from the broker. When the evidence was not submitted the claim was denied. The bulletin notice of that denial was published on January 27, 1989. Because of the failure to provide evidence of exportation timely the denial of drawback appears to have been proper.

Is a remedy available to the drawback claimant when a timely protest has not been filed to a denied drawback claim?

Pursuant to 19 U.S.C. 1514, decisions of Customs officers as to the refusal to pay a claim for drawback are final and conclusive unless a protest is filed in accordance with that provision or unless there is filed a civil action contesting the denial of such a protest. Section 1514 provides that a protest filed under that section must be filed in writing with the appropriate Customs officer (as designated by regulation) within ninety days after but not before notice of liquidation or reliquidation. The protest must set forth distinctly and specifically each decision protested, each category of merchandise affected by each such decision, and the nature of each objection and the reasons therefor. The Customs Regulations pertaining to protests under section 1514 are found in 19 CFR Part 174.
Based upon the information provided, Allied India did not file a protest within 90 days of the liquidation date (January 27, 1989). The denial of the drawback claim is, therefore, final.

HOLDING:

Based upon the foregoing, Allied India failed to complete the drawback claim by filing with the Customs Service proof of exportation; thereby, resulting in a denial of the drawback claim.

Additionally, Allied India has exhausted its remedies since they did not file a timely protest in accordance with 19 U.S.C. 1514.

Sincerely,

John Durant, Director
Commercial Rulings Division

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