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HQ 735561





April 12, 1995

MAR-2-05 R:C:S 735561 AT

CATEGORY: MARKING

District Director of Customs
Tampa, Florida

RE: Application for Further Review of Protest No. 1801-94-100008 concerning country of origin marking of imported handicraft articles; marking duties; 19 U.S.C. 1304(f)

Dear Madam:

This is in response to Protest no. 1801-94-100008 and the Application for Further Review dated February 18, 1994, submitted by Intercontinental Transport Services ("Intercontinental") on behalf of African Hut, Inc. ("African Hut"), against your decision to assess marking duties in connection with an entry of imported handicraft articles.

FACTS:

Approximately 853 handicraft articles (candles, shirts, boxes, porcelain articles, furnishing articles, books, towels, wallets, and artificial flowers) from South Africa were imported into the U.S. on November 7, 1992. Entry for the imported merchandise was made on November 19, 1992. On November 19, 1992, a notice of marking/redelivery (CF 4647) was issued because there was no country of origin marking on the merchandise as required under 19 U.S.C. 1304. The importer signed the CF 4647 on December 10, 1992, certifying that the merchandise had been marked, although the CF 4647 was returned to Customs postmarked January 11, 1993. Customs did not sign the CF 4647 authorizing release of the merchandise. Customs issued a CF 29 (Notice of Action) on December 30, 1992 assessing marking duties in the amount of 10 percent of the dutiable value of the merchandise for failure to mark the merchandise within 30 days of the issuance of the CF 4647. The entry was liquidated on December 27, 1993. On March 7, 1995, African Hut submitted thirty-five pieces of merchandise from this entry which your office verified to be properly marked with the country of origin. African Hut also informed Customs that the remaining 818 pieces were not available for verification of country of origin marking since they had been released. Protestant claims that the assessment of marking duties was improper because African Hut sent Customs the signed the CF 4647 on December 10, 1992, certifying that the merchandise was properly marked within 30 days of the issuance of the CF 4647.

ISSUES:

Whether the assessment of marking duties is proper in this case.

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.

Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.51, Customs Regulations (19 CFR 134.51), provides that when articles or containers are found upon examination not to be legally marked, the district director shall notify the importer on CF 4647 to arrange with the district director's office to properly mark the article or container or to return all released articles to Customs custody for marking, exportation or destruction. This section further provides that the identity of the imported article shall be established to the satisfaction of the district director. Section 134.52, Customs Regulations (19 CFR 134.52), allows a district director to accept a certification of marking supported by samples from the importer or actual owner in lieu of marking under Customs supervision if specified conditions are satisfied.

In HQ 731775 (November 3, 1988), Customs ruled that two prerequisites must be present in order for marking duties to be properly assessed 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 the assessment of marking duties on the 35 pieces that have been verified by Customs as properly marked with the country of origin was not proper. We find there is a presumption that these articles were properly marked prior to liquidation based upon the fact that protestant certified prior to liquidation that these articles were properly marked and the fact that Customs has verified the proper country of origin marking of these articles.

However, the assessment of marking duties on the remaining 818 pieces was proper due to the fact that both prerequisites cited above are present. The record indicates that the subject merchandise was not legally marked at the time of importation on November 7, 1992. There is no evidence that this merchandise was subsequently exported, destroyed or properly marked with the country of origin prior to liquidation of the entry. Although protestant claims that it signed and certified that the merchandise was properly marked and sent the signed CF 4647 to Customs within 30 days of issuance of the CF 4647 (a timely fashion), Customs did not sign the CF 4647, signifying acceptance of the certification and authorizing release of the merchandise. Also, the protestant has informed Customs on March 7, 1995, that the remaining 818 pieces have been released and that verification of the country of origin marking cannot be obtained. Thus, there is no evidence to support even a presumption that the remaining 818 pieces under the entry were properly marked prior to liquidation of the entry as required under 19 U.S.C. 1304(f).

HOLDING:

The assessment of marking duties in this case was not proper on the 35 pieces that Customs verified as properly marked with the country of origin. However, the assessment of marking duties on the remaining 818 pieces under the entry was proper due to the fact that this merchandise was not legally marked at the time of importation nor is there evidence that it was subsequently marked under Customs supervision prior to liquidation of the entry. Accordingly, the protest should be granted in part.

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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