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HQ 228736





February 6, 2002

DRA-2-02-RR:CR:DR 228736 IOR

CATEGORY: DRAWBACK

Port Director
U.S. Customs Service
301 E. Ocean Blvd.
Long Beach, CA 90802

Attn: Drawback Office, Suite 900

Richard Andrejko

RE: AFR 2704-99-103070; 19 CFR 191.72; drawback; evidence of exportation; certified bill of lading

Dear Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised and our decision follows.

FACTS:

The protest is against the denial of drawback for drawback entry no. C27-xxxx285-6, which was filed on September 1, 1998. The drawback entry was based on over 100 exportations of merchandise. It appears that the drawback claim was based on direct identification under 19 U.S.C. §1313(j)(1). The drawback entry was liquidated on September 10, 1999.

The subject protest was filed on November 9, 1999, and the Application for Further Review was filed on November 22, 1999. The protest is against the denial of drawback for 26 of the exports on the basis of which drawback was claimed. Drawback was denied for the 26 exports because the “time and place” of exportation was not established. For some of the exports additional documentation has been presented and for others, it is the protestant’s position that the totality of the documents already submitted is sufficient to establish the date and fact of exportation. It is the Drawback Office’s position that the date and fact of exportation cannot be established for the exported merchandise at issue.

A chronological summary of exports was submitted with the drawback entry. The summary contained the invoice number, export date, export carrier name, export manifest number, destination country, import entry number, import date, item number, exported quantity, import price per unit, total import value, duty rate, and total duty paid on the exported merchandise upon entry.

The following is the documentation submitted for each asserted exportation:

Invoice # Documentation

203305 An invoice for 1243 units of “CSxxxQCS Dig AM/FM STRO A/S Cass”, “pro. no. 7438766”, dated September 28, 1995, sold to an entity in Paraguay, for shipment to Miami, for the total amount of $19,888.00; somewhat illegible copy of a signed Air Waybill no. 535-0018-7611, dated October 15, 1995, for shipment to Paraguay, for “electronics and accessories”, which does not correspond to the invoice (no address, price, quantity or invoice number match), and which does not give the date of exportation; packing list dated September 28, 1995, for 31 cartons of 1243 units of item no. CSxxxQCS, weighing 1043.28, with an invoice total of $19,888.00, for shipment to the purchaser indicated on the invoice, and referencing bill of lading no. 7438766; copy of signed bill of lading, dated September 28, 1995, for shipment from protestant to Air Waybill shipper in Miami, for 31 cartons of “games and toys NMFxxx260-8, weighing 1044.85, and valued at $19,888.00; and a declaration from the Paraguayan purchaser, dated June 9, 1999, stating that all of the items purchased from the protestant were exported as listed on invoice no. 203305. According to the protestant , the protestant’s 31 cartons were consolidated with the customer’s purchases from other suppliers. With respect to this export invoice, the chronological summary of exports asserts a date of export of October 5, 1995.

204076 An invoice dated October 18, 1995, for 26 different types of electronic toys and games, a total of 1740 items, for a total invoice value of $15,400.20, for sale to a customer in Argentina, for shipment to Miami, stating the merchandise was shipped via Old Dominion pro. no. LAS-72xxx83, and that the ship date is October 18, 1995; a packing list dated October 18, 1995, of 1740 units of the same items as on the invoice for shipment to the purchaser, with a total weight of 1335.92, in four cartons, with an invoice total of $15,400.20, referencing bill of lading no. LAS-72xxx83, and shipment on October 18, 1995; copy of a signed bill of lading dated October 18, 1995 for shipment from the protestant to a party in Miami, for four cartons of electronic goods, weighing 1267.85, for a total value of 15,400.20, and indicating the ultimate consignee as the purchaser in Argentina; a “current day reporting” bank report dated September 26, 1995, showing a payment of 15,404.60 by the Argentinian purchaser to the protestant’s account; a declaration from the Argentinian purchaser, dated June 22, 1999, stating that all of the items on the invoice were exported; and an undated declaration from the Argentinian purchaser stating that the merchandise subject ot the invoice was shipped to a forwarder in Miami, and then the exports to Argentina occurred “immediately” and “no later than 45 days after” the invoice date. With respect to this export invoice, the chronological summary of exports asserts a date of export of October 20, 1995.

204163 An invoice dated October 20, 1995, for 21 different types of electroinic toys and games, a total of 188 items, for a total invoice value of $2,159.60, for sale to a customer in the British Virgin Islands, for shipment to a warehouse in California, with a ship date of October 20, 1995; a packing list dated October 20, 1995 for 188 units of the same items as on the invoice, with a total weight of 227.88, in seven cartons, with an invoice total of $2,159.60, with no reference to a bill of lading, and a shipment date of October 20, 1995; a letter dated October 6, 1995 from the purchaser in the British Virgin Islands, referring to an adjustment to an invoice, enclosing a check in the amount of $2,158.50, and a request that the merchandise be shipped immediately to the warehouse in California identified on the invoice; a copy of the purchaser’s check no. 17287, in the amount of $2,158.50, dated October 7, 1995, and with a handwritten reference to invoice no. 204163. With respect to this export invoice, the chronological summary of exports asserts a date of export of October 20, 1995.

205036 An invoice dated November 6, 1995, for five different types of electronic toys and games, a total of 36 items, for a total invoice value of $452.64, for sale to a customer in Jamaica, for shipment to Miami, with a ship date of November 6, 1995; a packing list dated November 6, 1995 for 36 units of the same items as on the invoice, with an invoice total of $452.64 ($438.00 plus $14.64 in freight), with no reference to a bill of lading, and a shipment date of November 6, 1995; a copy of a portion of a bank check to the protestant in the amount of $463.00, dated October 24, 1995; a copy of a Federal Express air waybill showing shipment of a FEDEX letter/envelope on what appears to be June 17, containing a “draft/invoice” from the Jamaican purchaser to the protestant. According to the protest, the Federal Express air waybill was for shipment of the check from the Jamaican purchaser to the protestant. With respect to this export invoice, the chronological summary of exports asserts a date of export of November 6, 1995.

205435 An invoice dated November 13, 1995, for 720 units of one type of toy, for a total invoice value of $3,830.40, for sale to a purchaser in Chile and for shipment to Chile, with a ship date of November 13, 1995, indicating that at one time there was an overshipment of these 720 pieces; a packing list dated October 9, 1995 including 1,440 units of the invoiced item, in 111 total cartons, with no reference to a bill of lading, and a shipment date of October 9, 1995, and instructions that the goods be held at a warehouse until receipt of a W/T from the customer; a copy of a signed bill of lading for 111 cartons of electronic goods, for shipment to Chile, dated November 13, 1995; cash receipts batch journal reprint indicating an April 1, 1997 payment of $3,830.40 for invoice no. 205435, from the Chilean purchaser, and with an explanation that the payment is for an overage shipped by the protestant; wire report indicating payment of $3,830.40 by order of the purchaser to the protestant, on March 31, 1997. In the protest, the protestant explains that payment occurred on March 31, 1997, because the purchaser did not want to pay for the merchandise until it had sold it, as they had only ordered 720 pieces of the item in issue. With respect to this export invoice, the chronological summary of exports asserts a date of export of November 13, 1995.

205834 An invoice dated November 29, 1995, for 512 units of 15 different electronic toys and games, in 18 cartons weighing a total of 124 kilos, for a total invoice value of $3,480.40, for sale to a purchaser in Andorra and for shipment to Andorra, with a ship date of November 29, 1995, referencing packing list no. 94126; packing list no. 94126, dated November 28, 1995 with a ship date of November 29, 1995, for 512 items in 18 cartons, weighing 289.20 units, with an invoice value of $3,480.00, requesting shipment to Spain; a copy of a signed shipper’s letter of instructions requesting shipment of 18 cartons of merchandise, weighing 124 kilos, and referencing packing list no. 94126, to Spain, dated November 29, 1995, with a total value of $3,480.40; a bill of lading dated November 29, 1995 for shipment within California, of 18 cartons of electronic goods, weighing 272 lbs., and indicating that payment is to be collected prior to shipment; a January 10, 1996 record of payment of $3,467.90 from Andorra to the protestant; a bill of exchange showing an order of payment of $3,480.40 from an Andorran bank to the account of the protestant on December 8, 1995 indicating the purchaser as the drawee; and protestant’s cash receipts batch report indicating the $3,480.40 payment is from the purchaser for invoice no. 205834. With respect to this export invoice, the chronological summary of exports asserts a date of export of November 29, 1995.

206239 The documentation provided is similar to that for invoice no. 204076. With respect to this export invoice, the chronological summary of exports asserts a date of export of December 11, 1995.

209535 The documentation provided is similar to that for invoice no. 205834, and in addition to the shipper’s letter of instructions, there is a copy of a signed bill of lading for shipment of the specified goods to New Caledonia, possibly indicating flight and date information, dated April 15, 1996. The shipper’s letter of instructions references the packing list referenced by the invoice, and includes the invoice total, and describes the merchandise as electronic goods. With respect to this export invoice, the chronological summary of exports asserts a date of export of April 12, 1996.

209887 The documentation provided is similar to that for invoice no. 204076. With respect to this export invoice, the chronological summary of exports asserts a date of export of April 23, 1996.

211360 The documentation provided is similar to that for invoice no. 204076, and in addition, copies of freight invoices are provided, however, none of the invoices indicate a shipment to Argentina, or outside of the U.S. The bill of lading for shipment to Miami, requests that proof of delivery be faxed “asap” to a number with the protestant’s area code. With respect to this export invoice, the chronological summary of exports asserts a date of export of June 10, 1996.

212259 The documentation provided is similar to that for invoice no. 209535, except no shipper’s letter of instructions were provided. Instead, the copy of the international bill of lading describes the merchandise consistently with the invoice and packing list and references the packing list number, and includes a date of lading of the merchandise. The copy of the bill of lading is signed by the agent for the carrier in typeface. The domestic bill of lading requests that proof of delivery be faxed “asap” to a number with the protestant’s area code. With respect to this export invoice, the chronological summary of exports asserts a date of export of July 10, 1996.

213153 An invoice dated August 2, 1996, for 7004 units of electronic toys and games, for a total invoice value of $40,819.00, for sale to a purchaser in Argentina and shipment to Argentina, referencing packing list no. 99301, with a ship date of August 2, 1996; packing list no 99301-0, dated August 2, 1996, for 7004 electronic toys and games as identified in the invoice, in 306 cartons, weighing a total of 2804.60 kgs., identifying the shipping vessel as the “Senator”, voyage 0405B, and seal no. 0016147; copy of an unsigned bill of lading for shipment of 306 cartons of electronic goods, weighing 2805 kgs., with seal no. 0016147, on the “Senator”, voyage no. 0405B, to Argentina, issued August 22, 1996, and indicating the merchandise was laden on board on August 20, 1996; July 25, 1996 bank wire report showing payment of $50,000.00 to the account of protestant by order of a party other than that on the invoice; protestant’s cash receipts journal printout showing receipt of $50,000.00 on July 26, 1996 from the purchaser on the invoice, but without any reference to any specific invoice. With respect to this export invoice, the chronological summary of exports asserts a date of export of August 2, 1996.

213203 The documentation provided is similar to that for invoice no. 204163, except that the packing list does refer to a bill of lading, and there is a signed bill of lading for shipment of the merchandise from California to Miami. The bill of lading also indicates that the ultimate consignee is the purchaser shown on the invoice, in Costa Rica. With respect to this export invoice, the chronological summary of exports asserts a date of export of August 7, 1996.

213263 An undated invoice, for 2544 units of 26 different electronic toys and games, for a total invoice price of $19,382.40, for sale to a purchaser in Panama, for shipment to Miami, referencing packing list no. 98035; packing list no. 98035, dated August 5, 1996 with a ship date of August 8, 1996, for 2544 items in 111 cartons weighing 1815.40 units, with an invoice value of $19,382.40, showing shipment to California; a signed bill of lading dated August 8, 1996 for shipment of 111 cartons of electronic goods, weighing 1832 lbs., from the protestant to a forwarding company in California, indicating that the ultimate consignee is the purchaser in Panama; a copy of a signed bill of lading no. Y-M7190, dated September 4, 1996, showing the shipment of 5 forty foot containers containing grocery articles to the purchaser on the invoice, in Panama, from Miami; a letter dated August 16, 1999 to the protestant from the shipping company that issued bill of lading no. Y-M7190, stating that the shipment under bill of lading no. Y-M7190 was a consolidated shipment and included 111 cartons at 1832 lbs, under protestant’s invoice no. 213263. With respect to this export invoice, the chronological summary of exports asserts a date of export of August 8, 1996.

213855 An invoice dated August 29, 1996, for 614 units of 24 different types of electronic toys and games, for a total invoice value of $3,376.28, for sale to a purchaser in Costa Rica and shipment to Miami, with a ship date of August 29, 1996, referencing packing list no. 78504, and pro. no. LOS 533 773 870; packing list no. 1-98504, dated August 22, 1996, with a ship date of August 29, 1996, for 614 items in 25 cartons, weighing 422.72 units, with an invoice value of $3,376.28; signed bill of lading no. LOS 533 773 870, dated August 29, 1996, for shipment of 25 cartons of games and toys weighing 396 lbs, from the protestant to a forwarding company in Miami, indicating that the ultimate consignee is the purchaser in Costa Rica; a copy of a check from the purchaser, from a Miami bank, to the protestant, in the amount of $3,666.54, dated May 8, 1996. With respect to this export invoice, the chronological summary of exports asserts a date of export of August 29, 1996.

214813 The documentation provided is similar to that for invoice no. 213153. The bill of lading requests that proof of delivery be faxed “asap” to a number with the protestant’s area code. With respect to this export invoice, the chronological summary of exports asserts a date of export of September 27, 1996.

215450 An invoice dated October 16, 1996, for 240 units of 11 different electronic toys and games, for sale to a purchaser in Japan and shipment to a different address in Japan, for a total invoice value of $2,325.60, with a ship date of October 16, 1996; a packing list dated October 16, 1996, for 240 items in 11 cartons, weighing 204.60 units, specifying delivery to California, with a ship date of October 16, 1996; bank wire report dated October 15, 1996 for the transfer of $2,325.60 to the protestant from the company in Japan to which the merchandise was to be shipped; and a cash receipts batch journal report indicating the protestant’s receipt of $2,325.60 from the purchaser on the invoice. No bills of lading were provided as asserted in the protest. With respect to this export invoice, the chronological summary of exports asserts a date of export of October 16, 1996.

215980 The documentation provided is similar to that for invoice no. 213855, except the payment records show that the payment was made on the same date as the shipment. With respect to this export invoice, the chronological summary of exports asserts a date of export of October 31, 1996.

216851 &
216852 The documentation provided is similar to that for invoice no. 215450, except there is also a purchase order for merchandise to the protestant from the purchaser. With respect to these export invoices, the chronological summary of exports asserts a date of export of December 5, 1996.

218792 An invoice dated March 6, 1997, for 86 units of 43 different electronic games and toys, in one carton, weighing 26 kilos, for a total invoice price of $541.80, for sale to a purchaser in South Africa, and shipment to South Africa, with a ship date of March 6, 1997; a packing list dated March 6, 1997, for 86 units of electronic games and toys, in one carton weighing 26 kilos, for shipment to South Africa, with a ship date of March 6, 1997; protestant’s cash receipts batch posting journal showing a May 5, 1997 posting of $541.80 from the purchaser for invoice no.218792; a copy of a New York check for a South African bank, to the protestant for $541.80; a copy of a shipper’s receipt indicating that one carton, weighing 26 kilos, with a value of $541.80, was received from the protestant on March 6, 1997 for shipment to the purchaser in South Africa. With respect to this export invoice, the chronological summary of exports asserts a date of export of March 6, 1997.

220016 The documentation provided is similar to that for invoice no. 213263. The bill of lading for the shipment to Miami, requests that proof of delivery be faxed “asap” to a number with the protestant’s area code. The shipper on the bill of lading for shipment to Venezuela is a merchandising company, different from the purchaser. The merchandising company has provided the letter stating that the merchandise on the invoice at issue was consolidated with other merchandise and shipped in accordance with the bill of lading for shipment to Venezuela. No date of departure or lading is included. In the letter, the merchandising company states that it waives any drawback rights, to the protestant. The copy of the international bill of lading is a copy of a signed document, but the copy is not certified, and does not indicate a date the merchandise was laden on board or left the U.S. With respect to this export invoice, the chronological summary of exports asserts a date of export of April 24, 1997, and the import entries of the designated merchandise were made on December 3, 1996, May 14, 1994, and August 12, 1994.

220792 The documentation provided is similar to that for invoice no. 213855, except instead of a copy of a check, the protestant has provided records of a payment receipt in an amount different from that on the invoice, prior to the ship date. With respect to this export invoice, the chronological summary of exports asserts a date of export of June 6, 1997.

9002217 The documentation provided is similar to that for invoice no. 215450, except the invoice indicates the shipment is to California. No bills of lading were provided as asserted in the protest. With respect to this export invoice, the chronological summary of exports asserts a date of export of October 16, 1997.

9002816 An invoice dated November 5, 1997 for electronic toys and games, for a total invoice value of $4,086.00, for sale to a purchaser in the Bahamas and for shipment to the Bahamas, with a ship date of November 5, 1997; a packing list for the same merchandise, in 20 cartons, weighing 307units, with an invoice value of $4,086.00, with a ship date of November 5, 1997; a copy of a signed bill of lading dated November 5, 1997, for shipment of 20 cartons of games and toys, weighing 307 lbs., for shipment to the purchaser in the Bahamas, requesting that proof of delivery be faxed “asap” to a number with the protestant’s area code; a copy of a bank check made out to the protestant in the amount of $4,085.28, dated October 27, 1997; and a memo dated June 29, 1998 to the protestant from the purchaser, stating that the merchandise on invoice no. 0002816 was received by the purchaser. With respect to this export invoice, the chronological summary of exports asserts a date of export of November 5, 1997.

9004187 The documentation provided is similar to that for invoice no. 215450, except there is no cash receipts batch journal. No bills of lading were attached, in contrast to the assertion by the protestant. With respect to this export invoice, the chronological summary of exports asserts a date of export of December 5, 1997.

ISSUE:

Whether exportation of the merchandise on which drawback is claimed has been established in accordance with Customs Regulations, 19 CFR 191.72?

LAW AND ANALYSIS:

We note initially that the refusal to pay a claim for drawback is a protestable issue pursuant to 19 U.S.C. §1514(a)(6). Drawback for the subject entry was denied on September 10, 1999, when it was liquidated with partial drawback. This protest was timely filed on November 9, 1999, which is within the 90-day filing deadline set forth in 19 U.S.C. §1514(c). This protest involves the denial of drawback under 19 U.S.C. §1313(j).

The Customs Regulations 191.72 (19 CFR 191.72) require evidence of exportation as follows:

Exportation of articles for drawback purposes shall be established by complying with one of the procedures provided for in this section (in addition to providing prior notice of intent to export if applicable (see §§ 191.35, 191.36, 191.42, and 191.91 of this part)). Supporting documentary evidence shall establish fully the date and fact of exportation and the identity of the exporter. The procedures for establishing exportation outlined by this section include, but are not limited to:

(a) Actual evidence of exportation consisting of documentary evidence, such as an originally signed bill of lading, air waybill, freight waybill, Canadian Customs manifest, and/or cargo manifest, or certified copies thereof, issued by the exporting carrier; (b) Export summary (§ 191.73);
(c) Certified export invoice for mail shipments (§ 191.74); (d) Notice of lading for supplies on certain vessels or aircraft (§ 191.112); or (e) Notice of transfer for articles manufactured or produced in the U.S. which are transferred to a foreign trade zone (§ 191.183).

We have applied the foregoing regulations to each set of documents provided to Customs for the merchandise on which drawback was denied, and have responded with respect to each invoiced shipment separately.

In general, the proof of exportation requires evidence of an intent for the merchandise at issue to unite with the mass of things belonging to that of another country, and evidence that the merchandise left the U.S. See 19 CFR 101.1. The documents submitted generally support the intent for the subject merchandise to join the commerce of another country. Such intent is shown by the invoices, packing lists and payment records (provided there are no discrepancies among the documents). Evidence that the merchandise left the U.S. could consist of, for example, a bill of lading indicating that the goods are on an outbound vessel or aircraft, or that the goods were entered into a foreign government’s Customs. See HQ 228272, dated November 8, 1999. Most of the documents submitted in this case, do not indicate the date the merchandise was on board the outbound vessel or aircraft, and thereby do not indicate the date of exportation. The dates on some of the bills of lading simply indicate that the merchandise was picked up by a carrier in the U.S. Finally, documentation showing the date of export from the U.S. must carry some certification of authenticity, either in the form of a signature on an original document or certification of a copy of the signed document. See HQ 226929, dated June 4, 1997.

Under evidentiary rules, hearsay testimony is not admissible. The Federal Rules of Evidence (FRE) define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” FRE 801(c). Under FRE 801(a), a statement includes a written assertion. An exception to the hearsay rule is in 801(6) which provides that:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness.

We find that the customer declarations appear not to be documents made at or near the time of the transactions at issue, and not kept in the ordinary course of business, therefore they are not admissible evidence. The remaining documents, including the invoices, packing lists, bills of lading, delivery receipts, bank wire reports, cash receipts batch journal reports and reprints, and checks, appear to all be records made at the time of the transactions at issue, and kept in the course or regularly conducted business.

Invoice no.

203305 The bill of lading for shipment to Miami corresponds with the invoice by the “pro. no 7438766”, number of cartons and value of merchandise. The “pro. no.” refers to a bill of lading number. The merchandise on the bill of lading is described as “games and toys” as opposed to any electronics, has a different description number (CSxxxQCS on the invoice, and NMFxxx260-8 on the Miami bill of lading), and has a different weight. None of the documents, including the customer declaration, establish the date of exportation. Even if it were somehow apparent from the air waybill that the 31 cartons of merchandise were consolidated with other merchandise, the content of those packages is not consistent from the invoice to the bill of lading, and the air waybill in any event does not establish the date of exportation. Furthermore, none of the documents indicate the merchandise was exported on October 5, 1955 as asserted on the chronological summary of exports, including the air waybilll, which is dated October 15, 1995, and does not show that the merchandise was exported on October 5, 1995. Denial recommended.

204076 The weight of the merchandise is not consistent from the packing list to the bill of lading, the payment amount is not the same as the invoice amount, and there is no bill of lading for the shipment from Miami to Argentina, and nothing indicates the date of export from Miami to Argentina. Furthermore, none of the documents indicate the merchandise was exported on October 18, 1995, as asserted on the chronological summary of exports. The payment record does not establish exportation because the payment was made prior to the invoice and shipment dates, and it is not a final posting. Denial recommended.

204163 There is no evidence of export to the British Virgin Islands. The only bill of lading is for shipment within California. None of the documents indicate the merchandise was exported on October 20, 1995, as asserted on the chronological summary of exports. The evidence of payment does not establish exportation, as the payment was made prior to the invoice and shipment dates. Denial recommended.

205036 There is no evidence of export to Jamaica. None of the documents indicate the merchandise was exported on November 6, 1995, as asserted on the chronological summary of exports. The payment check is in an amount inconsistent with the invoice and does not indicate who the payment is from. The relevance of the FEDEX air waybill to the exportation of the invoiced merchandise cannot be determined. Denial recommended.

205435 The bill of lading indicates that the 720 units which are the subject of invoice no. 205435 were received by a carrier in the U.S. on November 13, 1995, for intended shipment to Chile. The packing list also instructs that the merchandise be held in a warehouse pending receipt of a W/T (wire transfer?) from the Chilean customer. There is no evidence that the merchandise left the U.S. on November 13, 1995 as asserted on the chronological summary of exports, or otherwise. Denial recommended.

205834 None of the documents, including the shipper’s letter of instructions, establish the date of exportation of the merchandise to Spain, or that such date of exportation is November 29, 1995, as asserted on the chronological summary of exports. The payment records do not establish the fact of exportation because the bill of lading requires collection of payment prior to delivery of the merchandise. The bill of lading is signed, however it does not indicate the date of export. Denial recommended.

206239 The weight of the merchandise on the packing list is close but not identical to that on the bill of lading, and the payment amount is close to but not the same as the invoice amount, and there is no bill of lading for the shipment from Miami to Argentina, and nothing indicates the date of export from Miami to Argentina. We note that although on the chronological summary of exports, the export date is asserted to be December 11, 1995, at most, the evidence indicates that the merchandise was picked up at the protestant’s place of business, in California on that date. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates. Denial recommended.

209535 The bill of lading does not indicate the date on which the merchandise was exported to New Caledonia. It is possible that the flight and flight date information is provided on the document, however arriving to a conclusion of the date of export requires speculation on the part of Customs. The shipper’s letter of instructions, although signed, does not indicate the date of export of the merchandise. We note that none of the documents indicate the merchandise was exported on April 12, 1996, as asserted on the chronological summary of exports, or any other date. The chronological summary of exports cannot be correct because the bill of lading is not even dated until April 15, 1996, after the date asserted on the chronological summary of exports. In order to establish the date of exportation on the basis of these documents, the protestant would have to provide information from the carrier regarding the flights and dates, and establish that the merchandise was on board the flights identified. It is recommended that the protest be allowed with respect to this invoice item, provided that 1) a certified copy of the signed bill of lading for export to New Caledonia is submitted, and 2) information from the carrier regarding the flights and dates, and establishing that the merchandise was on board the flights identified is submitted, and you choose not to verify the validity of the bill of lading itself with the carrier.

209887 The weight of the merchandise on the packing list is close but not identical to that on the bill of lading. There is no bill of lading for the shipment from Miami to Argentina, and nothing indicates the date of export from Miami to Argentina. We note that although on the chronological summary of exports, the export date is asserted to be April 23, 1996, at most, the evidence indicates that the merchandise was picked up at the protestant’s place of business, in California on that date. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates. Denial recommended.

211360 Same as for 209887 above. We note that although on the chronological summary of exports, the export date is asserted to be June 10, 1996, at most, the evidence indicates that the merchandise was picked up at the protestant’s place of business, in California on that date. The bill of lading had requested proof of delivery to be faxed to a number in California. No such documentation was provided. Denial recommended.

212259 We find that there is evidence of the date and fact of exportation of the invoiced merchandise to French Polynesia. The bill of lading indicates that the merchandise was laden on board for export to French Polynesia on July 18, 1996, however a certified copy of the signed bill of lading showing the shipment to French Polynesia has not been provided. The signed bill of lading is acceptable evidence of exportation provided it is certified. We note that none of the export documents indicate the merchandise was exported on July 10, 1996, as asserted on the chronological summary of exports, therefore the chronological summary of exports cannot be correct. However, based on the evidence it is recommended that the protest be allowed with respect to this invoice item, provided that the signed bill of lading showing shipment to French Polynesia is certified to show that it is a true copy, and you choose not to verify the validity of the bill of lading itself with the carrier.

213153 The bill of lading indicates that the merchandise was laden on board the exporting vessel on August 20, 1996, however the copy of the bill of lading is neither signed nor certified, and was not executed until August 22, 1996. The payment records do not establish exportation as they indicate payment was received prior to the invoice date, the bank wire report does not identify the purchaser as the source of the payment, and none of the payment records identify the invoice at issue as the reason for the payment. We note that none of the export documents indicate the merchandise was exported on August 2, 1996, as asserted on the chronological summary of exports, and the date the goods were laden on board is August 20, 1996. Therefore the chronological summary of exports cannot be correct. However, based on the evidence it is recommended that the protest be allowed with respect to this invoice item, provided that a certified copy of a signed bill of lading is submitted, and you choose not to verify the validity of the bill of lading itself with the carrier. Verification with the carrier would be of particular importance in this case as the bill of lading was not executed until two days after the goods were laden on board.

213203 There is no evidence of export to Costa Rica. The only bill of lading is for shipment within the U.S. We note that although on the chronological summary of exports, the export date is asserted to be August 7, 1996, at most, the evidence indicates that the merchandise was picked up at the protestant’s place of business, in California on August 6. The evidence of payment does not establish exportation, as the payment was made prior to the invoice and shipment dates. Denial recommended.

213263 We find that there is evidence of the fact and date of exportation of the invoiced merchandise to Panama. The signed bill of lading indicates the merchandise was laden on board, and the signed letter from the shipping company identifies that the invoiced merchandise was included in the merchandise laden on board. However the bill of lading is not certified to be a true copy, and does not provide the export date. We note that although on the chronological summary of exports, the export date is asserted to be August 8, 1996, the evidence only indicates that the merchandise was picked up at the protestant’s place of business, in California on August 8, and the shipping company’s letter indicates the bill of lading was dated September 4, 1996. Therefore, the chronological summary of exports cannot be correct as to the date of export. Based on the evidence, allowance is recommended, provided that a copy of the signed bill of lading is certified as being a true copy and the export date is certified to be September 4, 1996, and you choose not to verify the validity of the bill of lading itself with the carrier.

213855 The weight of the merchandise on the packing list is close but not identical to that on the bill of lading, and the payment amount is close to but not the same as the invoice amount, and there is no bill of lading for the shipment from Miami to Costa Rica, and nothing indicates the date of export from Miami to Costa Rica. We note that although on the chronological summary of exports, the export date is asserted to be August 29, 1996, at most, the evidence indicates that the merchandise was picked up at the protestant’s place of business, in California on that date. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates, although it does establish the intent for the subject merchandise to unite with the mass of things belonging to Costa Rica. Denial recommended.

214813 The bill of lading is dated September 27, 1996, however the copy of the bill of lading is not certified, and does not indicate the date on which the merchandise left the U.S., and at most indicates the date on which the merchandise was picked up in California. We note that the bill of lading date is consistent with the date of export on the chronological summary of exports. The payment records do not establish exportation as they indicate payment was received prior to the invoice and ship date, although it does establish the intent for the subject merchandise to unite with the mass of things belonging to Costa Rica. The bill of lading had requested proof of delivery to be faxed to a number in California. No such documentation was provided. It is recommended that the protest be allowed with respect to this invoice item, provided that a certified copy of a signed bill of lading for export to Costa Rica, with a date of departure or lading is submitted, and you choose not to verify the validity of the bill of lading itself with the carrier.

215450 There is no evidence of exportation of the merchandise to Japan, on October 16, 1996, as asserted on the chronological summary of exports, or any other date. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates. Denial recommended.

215980 The weight of the merchandise on the packing list is close but not identical to that on the bill of lading, and the payment amount is close to but not the same as the invoice amount, and there is no bill of lading for the shipment from Miami to Columbia, and nothing indicates the date of export from Miami to Columbia as asserted on the chronological summary of exports, or any other date. Denial recommended.

216851 &
216852 There is no evidence of exportation of the merchandise to Saint Thomas, on the date asserted on the chronological summary of exports, or any other date. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates. Denial recommended.

218792 The totality of the documents, including the shipper’s receipt, and evidence of payment after the shipping date in the exact amount as the invoice price and attributed to the invoice in the protestant’s business records is evidence of the fact of exportation. However, none of the documents, including the shipper’s receipt, which is not signed, show the date the merchandise left the U.S. We note that the shipper’s receipt date is the same as the export date asserted on the chronological summary of exports. It is recommended that the protest be allowed with respect to this invoice item, provided that a certified copy of a signed shipper’s receipt, with a date of departure or lading is submitted, and you choose not to verify the validity of the bill of lading itself with the carrier.

220016 The evidence of date of exportation would be sufficient if the bill of lading for the shipment to Panama were certified and indicated a date of departure from the U.S. or lading of the merchandise. The signed letter from the merchandising company establishing consolidation, is sufficient to establish that the invoiced merchandise was included in the shipment to Venezuela, however, again, a date of departure is not provided. We note that the international bill of lading is only dated August 1, 1997, significantly later than the April 24, 1997 date asserted on the chronological summary of exports. Therefore the chronological summary of exports cannot be correct. The bill of lading had requested proof of delivery to be faxed to a number in California. No such documentation was provided. Further, 19 U.S.C. §1313(j)(1) requires that the designated merchandise be exported within three years from the date of importation. In this case for the merchandise entered on May 14, 1994, the three year export requirement was not met, and unless the merchandise entered on August 12, 1994 was exported on or before a date three years from the date of importation, the three year export requirement was also not met. However, based on the evidence, it is recommended that the protest be allowed with respect to this invoice item, provided that a certified copy of the signed bill of lading, with a date of departure or lading is submitted, and you choose not to verify the validity of the bill of lading itself with the carrier, and 2) no drawback is allowed for merchandise exported more than three years from the date of importation.

220792 The payment amount is close to but not the same as the invoice amount, and there is no bill of lading for the shipment from Miami to Trinidad & Tobago, and nothing indicates the date of export from Miami to Trinidad & Tobago on the date asserted on the chronological summary of exports or otherwise. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates. Denial recommended.

9002217 There is no evidence of exportation of the merchandise to Costa Rica on the date asserted on the chronological summary of exports or otherwise. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates. We also note that one of the items described as having been exported on the chronological summary of exports, MGA 228, is not included on the export invoice or packing list. Denial recommended.

9002816 The bill of lading for export to the Bahamas is dated November 5, 1997, however the copy of the bill of lading does not indicate a date the merchandise departed from the U.S., and is not certified. We note that the bill of lading date is consistent with the date of export on the chronological summary of exports. We also note that two of the items identified on the chronological summary of exports, items MGA 228 and MGAorganizer, are not included on the export invoice or packing list. The payment records do not establish exportation as they indicate payment was received prior to the invoice and ship date. The bill of lading had requested proof of delivery to be faxed to a number in California. No such documentation was provided. Finally, unless the merchandise entered on November 11, 1994 was exported on or before a date three years from the date of importation, the three year export requirement was not met with respect to that merchandise. It is recommended that the protest be allowed, with respect to this invoice item, provided that 1) no drawback is allowed for the items not exported unless they are otherwise clarified, 2) a certified copy of the signed bill of lading, with a date of departure or lading is submitted, and you choose not to verify the validity of the bill of lading itslef with the carrier, and 3) no drawback is allowed for merchandise exported more than three years from the date of importation.

9004187 There is no evidence of exportation of the merchandise to Costa Rica on the date asserted on the chronological summary of exports or otherwise. The payment record also does not establish exportation because the payment record is dated prior to the invoice and shipment dates. Denial recommended.

Compliance with the Customs Regulations on drawback is mandatory and a condition of payment of drawback (United States v. Hardesty Co., Inc., 36 CCPA 47, C.A.D. 396 (1949); Lansing Co., Inc. v. United States, 77 Cust. Ct. 92, C.D. 4675; see also, Guess? Inc. v. United States, 944 F.2d 855, 858 (1991) "We are dealing [in discussing drawback] instead with an exemption from duty, a statutory privilege due only when the enumerated conditions are met" (emphasis added)). Therefore, because both the date and fact of the exportations has not been established as explained above, in accordance with the regulations, the protest should be denied as outlined above, unless certified documents, and other information, as described, are provided.

In general, as noted above, even where some evidence of the fact and date of exportation has been provided, the chronological summary of exports generally asserts the invoice, or invoice ship date as the date of exportation, and because the bills of lading are dated later, the chronological summary of exports cannot be correct. The date of exportation on the chronological summary of exports should be the date of exportation as opposed to the invoice date, invoice ship date, or any other date.

HOLDING:

The date of exportation may be established with respect to eight of the invoiced shipments if 1) the dates of departure of the merchandise are provided, as indicated, 2) certified copies the bills of lading are provided, and 3) other information, as indicated is provided. The fact and/or the date of exportation has not been established with respect to the remaining invoiced shipments.

The protest should be DENIED in part, and ALLOWED in part, in accordance with the instructions above. 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 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 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,


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