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HQ 560008




June 27, 1997

MAR-05 RR:TC:SM 560008 KKV

CATEGORY: MARKING

Port Director
U.S. Customs Service
4430 E. Adamo Drive
Tampa, FL 33605

RE: Application for Further Review of Protest No. 1801-96-100047; Assessment of Marking Duties; Empty glass bottles (vases); Untimely certification; Customs inability to verify marking

Dear Sir:

The above-referenced protest, filed by Erastos Salermo, concerns the assessment of marking duties in connection with a shipment of empty glass bottles. Protestant is challenging the assessment of marking duties in connection with the importation of 100 cartons containing empty glass bottles (vases) entered at the Port of Tampa, Florida, on August 28, 1995. Protestant argues that the marking duties should be canceled because the merchandise was eventually properly marked with its country of origin to meet the requirement of 19 CFR 134.11.

FACTS:

The record indicates that a shipment of empty glass bottles (vases) from Mexico, valued at $2,114.57, was entered at the port of Tampa, Florida, on August 28, 1995. As a result of a cargo examination on August 29, 1995, in which it was determined that merchandise was not marked with the country of origin, Customs issued a Notice to Mark and/or Redeliver (CF 4647), which required that the merchandise be brought into compliance within thirty days.

In the absence of redelivery or certification of marking within the thirty-day period, which expired on September 28, 1995, Customs issued a Notice of Liquidated Damages (CF 5955A) in the amount of $2,118, and a Notice of Action assessing marking duties in the amount of $211.80 on November 11, 1995. The entry was liquidated on January 26, 1996.
ISSUE:

Whether the assessment of marking duties was proper in connection with a shipment of merchandise not properly marked at the time of entry but alleged to have been subsequently marked.

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 into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know, by inspecting the marking on the imported goods, the country of which the goods are the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will. United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 C.A.D. 104 (1940).

Merchandise which is not legally marked is subject to a 10 percent ad valorem marking duty. 19 U.S.C. 1304(h) provides, in pertinent part:

If at the time of importation any article...is not marked in accordance with the requirements of this section, and if such article is not exported or destroyed or the article...marked after importation in accordance with the requirements of this section (such exportation, destruction, or marking to be accomplished under customs supervision prior to the liquidation of the entry covering the article, and to be allowed whether or not the article has remained in continuous customs custody), there shall be levied, collected, and paid upon such article a duty of 10 per centum ad valorem, which shall be deemed to have accrued at the time of importation, shall not be construed to be penal, and shall not be remitted wholly or in part nor shall payment thereof be avoidable for any cause. Such duty shall be levied, collected, and paid in addition to any other duty imposed by law and whether or not the article is exempt from the payment of ordinary customs duties
(emphasis added).

The regulations implementing most of the provisions of the marking statute are contained in Part 134, Customs Regulations (19 CFR Part 134). The general marking requirement is set forth in section 134.11, Customs Regulations (19 CFR 134.11). Where articles are not properly marked, the Customs Regulations provide for the assessment of marking duties in section 134.2 (19 CFR 134.2), which states, in pertinent part:

Articles not marked as required by this part shall be subject to Additional duties of 10 percent of the final appraised value unless exported or destroyed under Customs supervision prior to liquidation of the entry, as provided in 19 U.S.C. 1304(f). The 10 percent additional duty is assessable for failure to mark the article (or container) to indicate the English name of the country of origin of the article or to include words or symbols required to prevent deception or mistake.

In HQ 731775, dated 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 the case before us, both the prerequisites for the assessment of marking duties are present. The record indicates that the subject merchandise was not legally marked at the time of importation. The marking notice issued by Customs indicate that neither the articles nor their containers were marked. Protestant has not provided any proof that the merchandise was properly marked under Customs supervision prior to liquidation. The Protestant admits that the certificate of marking was submitted in an untimely manner, but alleges that the merchandise was marked. We find nothing that substantiates this claim. A review of the case file reveals that Protestant submitted a certificate of marking signed and dated November 16, 1995, forty-nine days after the Notice to Mark or Redeliver deadline. However, we note that the certificate has not been countersigned by Customs, indicating that the merchandise in question was released without Customs authority. Inasmuch as the merchandise, which was not properly marked at the time of imporation, was neither marked nor exported under Customs supervision, and no other evidence has been presented to prove that marking occurred, we find that it was not properly marked at the time of liquidation, and marking duties were properly assessed.

HOLDING:

On the basis of the record provided, where merchandise is not legally marked at the time of importation, in the absence of evidence demonstrating either that the merchandise was subsequently marked under Customs supervision or presented for inspection prior to liquidation, the assessment of marking duties is in an amount equal to ten percent of the appraised value of the shipment is proper. Accordingly, the 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, this decision, together with the Customs Form 19, 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, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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