HQ 952806 - Application For Further Review of Protest No. 3901-92-100039; Skins And Clothing For Stuffed Toys And Timeliness of Protests - United States International Trade Commision Rulings

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HQ 952806

August 11, 1993

CLA-2 CO:R:C:F 952806K

CATEGORY: CLASSIFICATION

TARIFF No.: 9503.41.30; 9902.95.04

District Director of Customs
610 S. Canal Street
Chicago, Illinois 60607

RE: Application For Further Review of Protest No. 3901-92-100039; Skins And Clothing For Stuffed Toys And Timeliness of Protests

Dear Sir:

The following is our decision in response to the referral from your office dated October 22, 1992, of the request for further review of the above-referenced protest.

FACTS:

The protest concerns skins and clothing imported as parts and accessories for stuffed toy animals ("Red October", a Teddy Bear). From the facts presented in the protest file, we conclude that the protest is untimely and should be denied. Further, if we were to rule on the merits, we would have recommended a denial of the protest. The substance of the facts are further detailed under the discussion of law and analysis below.

ISSUE:

The issue is whether a timely protest was filed under either 19 U.S.C. 1514(a)(2) or (7).

LAW AND ANALYSIS:

Under 19 U.S.C. 1514(a)(2) and 1514(c)(2)(A), the liquidation of the entry is final and conclusive upon all persons unless a protest is filed within 90 days after the notice of liquidation contesting the classification and rate and amount of duties chargeable. The consumption entry was liquidated on July 30, 1990, and the protest was received at the district office on

January 21, 1992. Accordingly, the protest is untimely under 19

Under 19 U.S.C. 1520(c)(1), notwithstanding that a protest was not filed, the appropriate Customs officer may reliquidate an entry to correct a clerical error, mistake of fact, or other inadvertence adverse to the importer not amounting to an error in the construction of the law, if it is brought to the attention of the appropriate customs officer within one year after the date of liquidation. Under 19 U.S.C. 1514(a)(7) and(c)(2)(B), the decision not to reliquidate is also final to all persons unless a protest is filed with 90 days after the refusal of the Customs officer to reliquidate for clerical error, mistake of fact, or other inadvertence.

The consumption entry was liquidated on July 30, 1990. The formal protest on Customs Form C-19 was received at the district on January 21, 1992, and states that the "District Director, erred in denying a duty refund based on our petition of 4/6/90." The protest does not refer to a clerical error or mistake of fact or any inadvertence but merely disputed the correct classification of the merchandise which is an error in the construction of the law. A form letter was sent to the protestant's broker by the district on November 22, 1991, stating that the "petition under Section 520(c)(1)...will not be allowed." The reasons typed in the form for the denial of the petition were "(1) No indication `Red October' clothing is for `Red Vib' skins and (2) skins and clothing do not constitute stuffed toys." No mention is made concerning the date of a petition. If a timely request was made for reliquidation under 19 U.S.C. 1520(c)(1) and denied on November 22, 1991, then the protest received on January 21, 1992, would have been timely for purposes of 19 U.S.C. 1514(a)(7) and (c)(2)(B). However, the protest refers to a petition dated 4/6/90, which is dated before and not after the date of liquidation of July 30, 1990. We must conclude that a timely request was not made within one year after the date of liquidation as required by 19 U.S.C. 1520(c)(1). If a timely protest were filed under 19 U.S.C. 1514(a)(7), it would be denied because no evidence was submitted to sustain a claim of clerical error, mistake of fact or inadvertence.

The protest is denied because of untimeliness. However, we will discuss the merits of the classification of the merchandise.

The consumption entry was liquidated with the skins and clothing classifiable under other parts and accessories for toys representing animals or nonhuman creatures, subheading 9503.41.30, Harmonized Tariff Schedule of the United States (HTSUS). However, heading 9902.95.04, then in effect, provided for the temporary free entry of skins for stuffed toys representing animals or nonhuman creatures provided for in subheading 9503.41.30. Accordingly, the skins were liquidated
free of duty under heading 9902.95.04 and the clothing, not covered under the temporary free provision, was liquidated under subheading 9503.41.30, with duty at 6.8 percent ad valorem.

Stuffed toys are classifiable under subheading 9503.41.10 with duty at 6.8 percent ad valorem. However, another free temporary duty provision then in effect, heading 9902.95.02, covered certain stuffed or filled toys representing animals or nonhuman creatures provided for in subheading 9503.41.10. The protestant opines that under rule 2(b), General Rules of Interpretation (GRI), HTSUS, the skins have the essential character of the complete or finished article (stuffed toy animals) and therefore skins together with the clothing are classifiable as stuffed toy animals under subheading 9503.41.10, free of duty as provided for by heading 9902.95.02.

We do not agree with the position of the protestant. Classification under HTSUS is governed by the GRI. Goods are classified by application of GRI 1 according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, the remaining GRI may be applied. Skins or clothing cut and sewn to specifications that permit suitability for use solely or principally with stuffed toy animals of heading 9503 are considered parts or accessories to those toy animals. The classification of the skins and clothing are governed by GRI 1, HTSUS, and are classified as other parts and accessories of stuffed toy animals, subheading 9503.41.30, HTSUS. The combination of parts and accessories (skins and clothing) does not result in unfinished or incomplete stuffed toy animals. The protest, if timely filed, would have been denied on the basis of the construction of the law.

HOLDING:

You are instructed to deny the protest as untimely. A copy of this decision should be attached to Customs Form 19 Notice of Action, to be sent to the protestant.

Sincerely,

John Durant, Director

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