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HQ 559152




August 22, 1995

CLA-2 R:C:S 559152 DLD

CATEGORY: CLASSIFICATION

District Director of Customs
55 Erieview Plaza
Plaza Nine Building
6th Floor
Cleveland, OH 44114

RE: Decision on Application for Further Review of Protest No. 4196-95-100117. Subheading 9810.00.60 (HTSUS): Duty Free Treatment of Scientific Instruments and Apparatus.

Dear Sir:

This protest was filed against your decision in the liquidation as dutiable of an entry for an ultrasonic processor imported by the California Institute of Technology (Cal Tech).

FACTS:

Cal Tech placed an order with a Belgian manufacturer in November 1993, for an ultrasonic processor. On August 1, 1994, Professor Michael R. Hoffmann applied to Customs Headquarters for duty-free entry of the ultrasonic processor under subheading 9810.00.60, HTSUS. On September 1, 1994, Customs sent an inquiry to Professor Hoffmann asking for additional information needed to continue the processing of the application. Cal Tech was given the customary 60 days to respond. When the information needed was not received by the end of the 60 day period, the application was closed administratively on November 1, 1994. On December 27, 1994, Cal Tech reapplied for duty-free entry for the same application. The application was reopened under a new file number. On January 19, 1995, Customs sent an inquiry to Professor Hoffmann again asking for information needed to continue the processing of this reapplication and 60 days was again given to respond. When the needed information was not received by the end of the 60 day period, the reapplication was also closed administratively on March 21, 1995.

In the meantime, the entry had been liquidated as dutiable on December 2, 1994, inasmuch as the application for duty-free entry had not been approved. A protest was timely filed on March 1, 1995, with the Cleveland District Director. The protest was sent to Customs Headquarters for further review and was received on April 17, 1995. On June 6, 1995, an inquiry was sent to Cal Tech by telefax, again asking for information needed to process the duty-free application. In answer to the inquiry of June 6, 1995, Cal Tech returned an unresponsive and inadequate submission on June 12, 1995. Further attempts to obtain a satisfactory response were made by Customs on June 14, July 27, and August 4, 1995. Although Cal Tech stated on various dates that they would send in an adequate response, as of August 22, 1995, no response has been received.

LAW AND ANALYSIS:

The protest argues that the entry should have been liquidated as duty-free under subheading 9810.00.60, HTSUS. Customs position is that if and when the necessary information were submitted by Cal Tech, the processing of the duty-free application could be continued . If the application were then approved by Customs and subsequently approved by the Department of Commerce as well, the protest could be approved and the entry reliquidated as duty-free.

ISSUE:

Does an ultrasonic processor imported by Cal Tech qualify as a scientific instrument or apparatus under subheading 9810.00.60, HTSUS?

HOLDING:

The protest is denied in full. Customs does not have the information necessary to complete the processing of the duty-free application and has been unable to obtain this information from Cal Tech. Accordingly, the application for duty-free entry under subheading 9810.00.60, HTSUS, is denied. Therefore, the entry for the ultrasonic processor was properly liquidated as dutiable and protest is denied in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, a copy of this decision should be attached to the Customs Form 19 and mailed by your office to the protestant as part of the notice of action on the protest 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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