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HQ 952402

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NOVEMBER 3, 1992

CLA-2:CO:R:C:M 952402 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 870.40, TSUS

District Director of Customs
P.O. Box 619050
Dallas/Ft. Worth, TX 75261-9050

RE: Scales for Weighing Livestock; Item 662.30; Printer; Item 676.30, TSUS; 870.40, TSUS; Machinery to be Used for Agricultural or Horticultural Purposes; Section 10.133, Section 174.13(a)(6), Customs Regulations; PRD 5501-92-100229

Dear Sir:

This is our decision on Application for Further Review of Protest No. 5501-92-100229, dated June 17, 1992. It concerns your action in liquidating an entry of agricultural weighing machinery from New Zealand.

FACTS:

The articles in issue are weighing scales and a printer. The scales are used for weighing livestock and the printer presumably for recording the results. They were entered under the duty-free provision for machinery, equipment, and implements to be used for agricultural or horticultural purposes, in item 870.40, Tariff Schedules of the United States (TSUS). This provision imposes actual use requirements.

For failure to provide proof of actual use within the required time, as required by section 10.133, Customs Regulations, the scales were rate advanced under item 662.30, a dutiable provision for weighing machinery and scales and the printer rate advanced under item 676.30, a dutiable provision for office machines not specially provided for...printer units. The entry was liquidated accordingly.

ISSUE:

Whether the requirements for free entry under item 870.40, TSUS, were satisfied. - 2 -

LAW AND ANALYSIS:

Goods of schedule 8 are not subject to the rule of relative specificity in Headnote 10(c) of the General Headnotes and Rules of Interpretation, TSUS. Subject to certain exceptions not relevant here, an article described in any provision of schedule 8 is classifiable in that provision if the conditions and requirements thereof and any applicable regulations are met. Schedule 8, Headnote 1, TSUS.

Item 870.40 is a provision based on actual use. Such provisions require that three conditions be met in order to qualify for free entry or a lower rate of duty under the TSUS:

(a) Such use is intended at the time of importation.

(b) The article is so used.

(c) Proof of use is furnished within three (3) years after the date the article is entered or withdrawn from warehouse for consumption. Section 10.133, Customs Regulations.

Protestant's only claim is that Customs orally agreed to accept its list of distributors in lieu of end use certificates in satisfaction of section 10.133. The lists were supplied but the concerned import specialist denies that any agreement was reached. First, resale records do not per se establish that the goods were actually used in a qualifying agricultural or horticultural pursuit. Second, and more importantly, the Customs Regulations require that a protest set forth distinctly and specifically the nature of and justification for the objection with respect to each decision against which protest is made. Section 174.13(a)(6), Customs Regulations. Protestant has submitted no evidence in support of its claim, nor is there other evidence of record from which we can independently determine the validity of the claim.

HOLDING:

Protestant has not established compliance with section 10.133, Customs Regulations. The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and mailed to protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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