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HQ 227487

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February 17, 1998

LIQ-9-RR:CR:DR 227487

CATEGORY: LIQUIDATION

Port Director of Customs
U.S. Customs Service
6747 Engle Road
Middleburg Heights, OH 44130-7939
ATTN: William L. Plicka, IS
PROTEST SECTION

RE: Protest 4195-97-100027; MPF, refund, 19 U.S.C. 1520(d)

Dear Sir:

This is in reference to Protest 4195-97-100027 against the refusal to refund merchandise processing fees collected with the two entries involved.

FACTS:

Saturn Corporation made two entries 112-xxxx562-O and 112-xxxx707-1 on February 1, 1995 and February 2, 1995, respectively. Neither entry contained a request for tariff preference under the North American Free Trade Agreement, as implemented by the act of December 8, 1993 (107 Stat. 2057, Pub. L. 103-182).

The protest file contains a post-importation claim for entry 112-xxxx562-O. The claim was made by General Motors Corporation, the protestant, rather than the importer. The claim is dated December 22, 1995.

Handwritten notations on that claim form, which was assigned the identification 4195-96-200049 indicate that the claim was denied in part on June 26, 1996.

The protest file indicates that $25 was paid in merchandise processing fees on entry 112-xxxx562-O.

ISSUES:

1. Whether this protestant may protest the denial of its claim.

2. Whether the merchandise processing fee can be refunded in a post-importation claim under 19 U.S.C. 1520(d).

LAW AND ANALYSIS:

Under 19 U.S.C. 1514, all decisions of an entry become final and conclusive on all parties with certain exceptions. By virtue of 19 U.S.C. 1520(d), an importer may make a post-importation claim for tariff preference within one year after date of importation. Under the law the importer is required to file a written declaration that the imported good qualified under the rules and the appropriate NAFTA certificate of origin.

The evidence in the file does not demonstrate compliance with those requirements. The only declaration was filed by General Motors Corporation and relates only to entry 112-xxxx 562-O. The importer on both entries is Saturn Corporation. There is no evidence which shows that the two corporations are two parts of one legal entity. On the contrary, the importer identification numbers shown on the entries and the protest differ. Also the protestant identifies itself as GMC General Motors Can. While the mailing address for all entries is the same, the fact of separate corporate status indicates they are separate legal entities.

Under 19 U.S.C. 1514, the persons eligible to file a protest are set in paragraph (c)(2). The only relevant listings include the importer or consignee shown on the entry papers, the exporter or producer who completed and signed a NAFTA certificate of origin on the merchandise, or an authorized agent of either. With respect to activities defined as customs business, which includes filing entries, the payment of duties, taxes or other charges assessed on imported merchandise, or the refund thereof, the only authorized agent can be a licensed customhouse broker by virtue of 19 U.S.C. 1641.

The protest file does not show that a proper post-importation claim was filed under 19 U.S.C. 1520(d) by the importer shown on the entry papers, Saturn Corporation. The file does not contain any NAFTA Certificate of origin. The entry invoices show that persons other than General Motors Corporation were the producers of the merchandise. While the Customhouse broker is shown by the documents to be the agent of both Saturn Corporation and General Motors Corporation, the entries, the one apparent NAFTA post-importation claim, and the protest show that the principals acted in their separate capacities.

Consequently, unless compliance with the relevant statutes cited can be shown, the protest is to be denied for the foregoing reasons.

The second issue is whether, on a timely, proper post-importation claim under 19 U.S.C. 1520(d), Customs is to refund the merchandise processing fee associated with the eligible merchandise. Customs has modified its prior position. Enclosed is a copy of HQ 227605, including a copy of the general notice, which should be applied in appropriate circumstances. To the extent that the importer can demonstrate compliance with the applicable statutes, as discussed above, the protest is to be granted.

HOLDING:

The evidence does not show compliance with 19 U.S.C. 1514 or 1520(d). The importer is to be given 30 days from the date of this decision to show that timely, proper claims for each entry were made and that a proper protest against the denial of the refund was made. If the importer fails to so demonstrate that compliance, the protest is to be denied.

The merchandise processing fee collected on merchandise for which a proper post-importation NAFTA claim is made is to be refunded.

In accordance with Section 3A(11)(b) of Customs Directive 0993550-065, 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 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

Enclosure

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