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HQ 735081


October 20, 1993

MAR-2-05 CO:R:C:V 735081 AT

CATEGORY: MARKING

District Director of Customs
Detroit, Michigan

RE: Application for Further Review of Protest No. 3801-2-101537 concerning country of origin marking of imported tool and tackle boxes; marking duties; 19 U.S.C. 1304(f)

Dear Sir:

This is in response to Protest No. 3801-2-101537 and the Application for Further Review dated March 25, 1993, submitted by C.J. Tower, Inc. ("C.J. Tower"), the importer, against your decision to assess marking duties in connection with an entry of imported tool and tackle boxes. C.J. Tower's protest with respect to the classification issue was addressed by the Textiles Classification Branch in HQ 953696 (August 26, 1993).

FACTS:

Entry for 1,416 tool boxes and 1,394 tackle boxes imported from Canada was made on December 16, 1991. On December 2, 1991, 14 days prior to entry Customs authorized release of the merchandise under an immediate delivery bond without physical examination by Customs. On January 23, 1992, Customs sent a CF 28 (Request for Information) to C.J. Tower, importer of record, requesting a sample tool box. On February 21, 1992, Customs received a sample tackle box from C.J. Tower. Attached to the sample was a letter from the manufacturer describing the process involved in manufacturing the subject boxes. Upon examination of the sample, Customs found that the submitted sample was not marked with the country of origin "Canada" as required by 19 U.S.C. 1304. On March 17, 1992, Customs issued a CF 29 (Notice of Action) to C.J. Tower stating that marking duties in the amount of 10 percent of the entered value were assessed upon liquidation of the entry. On April 3, 1992, C.J. Tower submitted two additional samples to Customs marked "Made in Canada" by means of a red and white maple leaf sticker affixed to the front right hand corner of the box.
C.J. Tower claims that the first sample, which was unmarked, was not a representative sample of the shipment in question and was mistakenly sent by the manufacturer in Canada and submitted to Customs. C.J. Tower claims that the manufacturer did not know that a sample from the actual shipment was required. It is also claimed that the two marked samples submitted to Customs were furnished by the consignee, Rubins, Inc., and are representative samples from the shipment. A letter from Rubins, Inc., dated March 30, 1992, to C.J. Tower regarding the subject tool and tackle boxes was submitted to Customs. It states:

As I told you, the boxes received in our warehouse did have the "Made in Canada" sticker on them. All boxes received had this sample red and white, maple leaf sticker. We are sending a sample of the box to you.

Please forward this to the appropriate customs officials. As the merchandise was properly marked, we should not be charged with the 10% Marking Duty.

Based on the claim that the unmarked sample sent by the manufacturer and submitted to Customs was not representative of the imported merchandise, but that the two additional properly marked were, C.J. Tower argues that the assessment of marking duties in this case is not proper.

ISSUES:

Whether the assessment of marking duties was proper.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin imported in to the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. 19 U.S.C. 1304(f) provides that 10 percent marking duties shall be levied, collected and paid if an imported article is not properly marked with the country of origin at the time of importation and such article is not exported, destroyed or properly marked under Customs supervision prior to liquidation. Under this provision, such duties shall not be remitted wholly or in part nor shall payment thereof be avoidable for any cause.

In HQ 731775 (November 3, 1988), Customs ruled that two prerequisites must be present in order for it to be proper to assess marking duties under 19 U.S.C. 1304(f). These two prerequisites are:
1. the merchandise was not legally marked at the time of importation, and

2. the merchandise was not subsequently exported, destroyed or marked under Customs supervision prior to liquidation

In this case, based on the information submitted, we find that the tool and tackle boxes were properly marked at the time of importation with the country of origin "Canada" in accordance with the marking requirements of 19 U.S.C. 1304. Although the first sample submitted to Customs and received on February 21, 1992, was not marked with the country of origin "Canada", the additional two samples received on April 3, 1993 are properly marked with their origin. The red and white maple leaf sticker is permanently and conspicuously located on the box. The words "Made in Canada" printed in red lettering approximately 6 point (a point is a unit of measurement equal to 0.01384 inch or nearly 1/72 in) are easy to find and read by an ultimate purchaser upon a casual examination of the article. Without evidence to the contrary, we accept C.J. Tower's explanation that the original unmarked sample was not a representative sample of the shipment but that the two submitted samples marked with the country of origin by means of the maple leaf sticker were. This is supported by the consignee's letter of March 30, 1992, indicating that all the tool and tackle boxes which were received from the shipment were properly marked "Made in Canada" with the red and white maple leaf sticker. We note that, as explained in this letter, the two marked samples were obtained from the consignee from the shipment in question. For this reason we find that these properly marked samples were representative of the goods that were actually shipped.

Based on our finding that the merchandise was properly marked with the country of origin, the first prerequisite for the proper assessment of marking duties under 19 U.S.C. 1304(f) is not satisfied. Accordingly, the assessment of marking duties in this case was not proper.

HOLDING:

The assessment of marking duties in this case was not proper based on our finding that the merchandise was properly marked with the country of origin "Canada" at the time of importation. Accordingly, you are directed to grant the protest as it pertains to this issue. A copy of this decision should be attached to the Customs Form 19, to be sent to the protestant. 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 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, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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