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HQ 228324




March 20, 2000

LIQ-1-RR:CR:DR 228324 IOR

CATEGORY: PROTEST

Port Director
U.S. Customs Service
700 Doug Davis Dr.
Atlanta GA 30354

RE: Application for Further Review of Protest no. 1704-98-100272; lost checks; refund; interest; 19 U.S.C. 1514(a)

Dear Sir:

The above-referenced protest was forwarded to this office for further review. Our decision follows.

FACTS:

The protest concerns the payment of interest for reissued duty refund checks for 55 entries made by Titron Media Company (“protestant”). The entries consisted of video cassette housings and were made from December 13, 1993 through February 4, 1997. The entries were originally assessed with duty at 5.3% ad valorem under subheading 3926.90.9590, HTSUS, and liquidated on various dates from April 4, 1994 through May 23, 1997. The liquidations were protested, and the protests were suspended pending the test case in the Court of International Trade, Technicolor Videocassette, Inc. v. United States, 19 CIT 942, 896 F. Supp. 1220 (1995), regarding the classification of the merchandise. The decision, the results of which required Customs to reliquidate the entries, was affirmed on appeal. 90 F.3d 484 (Fed. Cir. 1996). On October 16, 1997, the Office of the Clerk of the Court of International Trade issued a “Notice Regarding Final Determination of Test Case” on Technicolor Videocassette, Inc. v. United States, informing the protestant that the test case decided by Slip Opinion 95-127 had ‘become final.”

On February 20, 1998, Customs reliquidated the 55 entries which are the subject of this protest, at 3.9% ad valorem, under subheading 8522.90.7580, HTSUS. Checks were issued by Customs to the protestant for the amount of the protestant’s overpayment of duty under the initial liquidation of the entries, including interest. The protestant never received the checks, and alleges that the checks “were stolen while in the custody of U.S. Customs or the U.S. Postal Service.” An investigation was conducted by the U.S. Secret Service. The protestant sent at least two checks to the U.S. Secret Service Agent in Los Angeles, California, on May 12, 1998 and July 16, 1998, reporting that these two checks were endorsed and cashed by an individual unknown to the protestant.

During a telephone conversation on October 13, 1999, with a Supervisory Field Agent of the U.S. Secret Service, located in Los Angeles, California, Customs was informed that the U.S. Secret Service had determined that a number of checks issued to the protestant were in fact lost, stolen, or never reached the protestant.

On August 24, 1998, Customs issued 55 substitute checks, one for each entry. The protestant statess that the reissued checks did not include interest from the time of the issuance of the first checks, through the time of issuance of the second checks, and seeks payment of interest for that period. Protest no. 1704-95-10019 was filed on November 20, 1998, protesting Customs calculation of interest with respect to the reliquidated entries.

ISSUE:

Whether Customs is obligated to pay the protestant interest on its overpayment of duty, for the time period dating from the issuance of the first set of checks, through the issuance of the second set of checks.

LAW AND ANALYSIS:

The facts above are substantially identical to those in HQ 228560, dated February 23, 2000, and the Law and Analysis in HQ 228560 is incorporated in this decision. A copy of HQ 228560 is enclosed.

HOLDING:

Protestant’s demand for recalculation of interest is not a protestable issue, inasmuch as it involves the Secretary of Treasury’s procedure for issuing replacement checks, and not Customs actions regarding the importation of merchandise, or protestable issues provided for pursuant to 19 U.S.C. §1514.

Furthermore, since Customs reliquidated the protestant’s entries on February 20, 1998, and the protest was filed November 20, 1998, the protest was untimely as it was not filed within 90 days of reliquidation as required by 19 U.S.C. §1514(c)(3).

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs. gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant

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