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HQ 226431




September 17, 1996

LIQ-11-RR:IT:EC 226431 AJS

CATEGORY: LIQUIDATION

Port Director of Customs
U.S. Customs Service
#1 La Puntilla Street, Room 203
Old San Juan PR 00901

RE: Protest 4909-95-100093; white virola plywood; extension of liquidation; untimely filed protest; 19 U.S.C. 1514(c)(3)(B); HQ 226410.

Dear Sir or Madame:

This is our decision in protest 4909-95-100093, dated August 2, 1995, concerning the liquidation of an entry of plywood.

FACTS:

According to the file and Customs records, on February 26, 1992, the importer entered certain merchandise ("PLYWD, TROPICAL WD, N/EXC6MM, N/F", according to the entry summary; "WHITE VIROLA PLYWOOD (MIRISTICACEAE), according to the invoice) from Brazil. The classification stated by the importer was under subheading A4412.11.20604, duty-free (at the time under consideration, merchandise classified under this subheading could qualify for duty-free Generalized System of Preference (GSP) treatment when imported from Brazil (see General Note 3, HTSUS

According to Customs records, liquidation of the entry was extended three times. The code for the extension was "01". The date of the last extension was November 25, 1994. Notices of the extensions were sent to the importer of record and to the surety-protestant.

According to Customs Records, at the time of the extensions of liquidations in this case, there was an on-going investigation of the mis-classification of Virola plywood. This investigation was concluded on September 29, 1994.

On January 11, 1995 a Notice of Action (CF 29) was sent to the importer, giving notice of a rate advance as ultimately liquidated (see below).

The entry was liquidated on January 27, 1995. The entry was liquidated with a classification under subheading 4412.12.2060, HTSUS, dutiable at the rate of 8%, with duty in the amount of $889.92 (at the time under consideration, merchandise classified under this subheading could not qualify for duty-free GSP treatment when imported from Brazil (see General Note 3, HTSUS

Demand on the surety for this duty, with interest, was made on April 30, 1995. The surety filed the protest under consideration on August 2, 1995. The grounds stated for the protest were that: (1) liquidation of the protested entry was extended without proper notice (citing Intercargo Insurance Co. (Genauer) v. United States, CIT Slip Op. 95-37 (printed in March 29, 1995, Customs Bulletin and Decisions, vol. 29, no. 13, p. 54)); and (2) liquidation of the protested entry was null and void because it was after the 1-year limitation on liquidation and since "all information needed to properly appraise, classify and assess duties on the subject entry was available . . . prior to the one year anniversary date . . . the decision to extend the period for liquidation was void . . . and each entry liquidated As entered' by operation of law."

Further review was requested and granted.

ISSUE:

Whether the protest in this case may be granted.

LAW AND ANALYSIS:

Initially, we note that the protest was not timely filed within 90 days of the demand upon the protestant surety pursuant to 19 U.S.C. 1514(c)(3)(B). The formal demand was April 30 and the protest was not filed until August 2 (i.e., 94 days later). Section 1514(a) partially states that decisions of the Customs Service shall be final and conclusive upon all persons unless a protest is filed under this section. Consequently, the decisions in the subject protest are final and conclusive inasmuch as the subject protest was not timely filed. Although, we note that the subject issue is protestable pursuant to 19 U.S.C. 1514(a)(5). We also note that the certification that the protest is not being filed collusively to extend another authorized person's time to protest, as required for a protest by a surety (see 19 U.S.C. 1514(c)(2)), was provided.

In HQ 226410 (April 29, 1996), this office addressed the identical issue involving similar merchandise from the same protestant. That protest was denied on substantive grounds and also addressed to your office (copy attached). Thus even if the subject protest was timely filed, it would also be denied on substantive grounds for the same reasons as those discussed in HQ 226410.

HOLDING:

The protest is denied. The protest was not timely filed within 90 days of the demand upon the protestant surety.

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, with the Customs Form 19, 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, Freedom of Information Act, and other public access channels.

Sincerely,

Director,


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