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HQ 229598





October 24, 2002

LIQ-2-02; PRO-2-02 RR:CR:DR
229598RDC

CATEGORY: PROTEST

Port Director
US Customs Service
100 Los Indios Blvd.
Box 800
Los Indios, Texas 78567
Att: Leopoldo Olvera

RE: Application for Further Review of Protest number 2304-02-100029; Jaclyn Inc.; I Appel de Mexico; NAFTA; Certificate of Origin; 19 CFR § 174.24; 19 CFR § 181.21; 19 CFR § 181.22.

Dear Mr. Garza:

The above-referenced Protest was forwarded to this office for further review. We have considered the points raised by your office and the Protestant, including its additional submissions of September 11, 2002, and October 9, 2002. Our decision follows.

FACTS:

Smart Time, a division of Jaclyn, Inc., (“Jaclyn”), protests the denial of NAFTA preferential tariff treatment for entry numbers: 179-xxxxx64-6 179-xxxxx07-2 179-xxxxx42-0 179-xxxxx91-3 179-xxxxx61-7 179-xxxxx85-7. These entries were entered in July and August of 2001 and liquidated on November 23 and November 9 of 2001. The instant protest, number 2304-02-100029 was filed on Jan 23, 2002. According to the Los Indios Port, these entries were filed electronically, i.e., no paper documents were submitted to Customs by the importer of record.

On July 23, 2001, the port sent a CF 28, “Request for Information” to Jaclyn which requested the NAFTA Certificate of Origin, (“CO”), for entry number 179-xxxxx26-0 (this entry number is not included in the instant Protest). This request for information stated, inter alia,

“Please provide the assembly declaration and textile declaration for the entry cited. In accordance with 19 CFR 181.22(b), please provide a NAFTA Certificate of Origin for this entry. Failure to furnish the requested document will result in the denial of the NAFTA claim for preferential duty treatment.”

Apparently, in response to the CF 28, the Director of Manufacturing for Jaclyn sent a NAFTA Certificate of Origin to the Port. With regard to this certificate, the port states,

“the certificate received from the importer was dated August 20, 2001. On the basis that the Certificate of Origin was post-dated, NAFTA preferential tariff treatment for all entries of women’s knit cotton and polyester robes imported by Jaclyn, Inc. prior to that date was denied. A CF 29, Notice of Action, was sent to Jaclyn Inc. on October 15, 2001, indicating this.”

Copies of the two CF 29s, “Notice of Action” sent to Jaclyn are included in the file. These documents list “I Appel de Mexico” as the manufacturer/seller/shipper of “women’s knit cotton and poly robes.” One CF 29, dated sometime in October 2001, (the day is illegible on this copy) references entry numbers 179-xxxxx09-6 and 179-xxxxx26-0 (neither of which are protested here). The second CF 29, dated October 15, 2001, references fourteen entries, the six protested entries listed above and 10 additional entries which are not protested here. This CF 29 states, inter alia, that a rate advance had been taken and includes the following statement:

“In accordance with 19 CFR 181.21(a), a claim for NAFTA duty preference shall be based on possession of a NAFTA Certificate of Origin by the importer at the time of entry summary. The NAFTA certificate submitted in response to this office’s request of 7/23/01 was dated subsequent to the date of entry summary and could not, therefore have been in the possession of the importer at the time the NAFTA duty preference was claimed for the cited entries. This office is denying your NAFTA claim for preferential duty treatment. The general rate of duty for the robes and MPF will apply.”

According to the Port, the Protestant did not respond to the rate advance notices.

On January 23, 2002, the Protestant filed the instant protest. On March 7, 2002, the port sent an additional CF 28 to Jaclyn, Inc. This request referenced entry number 179-xxxxx85-7 and stated:

“in reference to the protest filed under 19 USC 1514 for this and 5 other entries made in 2001, please provide evidence that the certificates of origin were in the possession of the importer at the time the entry summaries were filed.”

According to a letter dated April 8, 2002, from Jaclyn’s counsel, in response to this request, it sent to the port the original of the affidavit of Leticia Soledad Acuna Espinosa, which is described below. The Port forwarded the Protest to this office for further review.

The Protestant submits the following as evidence in support of its position:

Affidavit dated April 2, 2002, “in support of NAFTA certificates of origin for I Appel De Mexico, S.A. de C.V.” executed by LC. Leticia Soledad Acuna Espinosa. In this affidavit, it is stated that Espinosa is the legal representative of I Appel DE Mexico, S.A. DE C.V. and that the information contained therein is based on her “personal knowledge and belief.” Espinosa further states in this affidavit that she “personally certified” the eight NAFTA Certificates of Origin which are attached, and these Certificates were issued and sent to Jaclyn “once Appel received the fabric but prior to production of the subject merchandise.”

Affidavit, dated September 10, 2002, “in support of NAFTA Certificates of Origin for Jaclyn, Inc.,” executed by Gary Shepard, Vice President of Manufacturing for Jaclyn Inc. In this affidavit Shepard states that the eight NAFTA Certificates of Origin issued by Espinosa, “were in Jaclyn’s possession prior to the time Appel shipped the subject merchandise to Jaclyn for entry into the United States.”

Nine documents titled, “Noth [sic] American Free Trade Agreement Certificate of Origin.” The exporter and producer is “I. Appel DE Mexico, S.A. DE C.V.” and the importer is Jaclyn Apparel. The goods are described as “women’s knit robes.” Subheading 6108.92 (Harmonized Tariff System of the United States) is listed for all the goods. The Certificates also state the country of origin as Mexico and each certificate lists many style numbers. The Certificates all have issue dates and the blanket periods are specified. The style numbers appearing on three of those Certificates appear below:

Date of certificate
Blanket period
Style Numbers
DEFECTIVE
1102; 1102X; 1102P; 1102M; 1102MX; 1102MP; 1103; 1103X; 1105; 1105X; 1105M; 1106; 1106X; 1107; 1107X; 1108; 1108X; 1108M; 1108MX 1109; 1109X; 1109P; 1110; 1110X; 1110P; 1110M; 1110MX; 1110MP; 1111; 1111X; 1111P; 1111M; 1111MX; 1111MP; 1112; 1115; 1115X; 1115M; 1115MX 1116; 1116X; 1116M; 1116MX; 1117; 1117X; 1117M; 1117MX; 1118; 1118X; 1118P; 1118M; 1118MX; 1118MP; 1119; 1119X; 1119M; 1119MX

We note that the CO issued January 15, 2001, for the blanket period from July 1, 2001, to June 30, 2001, is – on its face – defective because the blanket period dates cannot run from a later to an earlier date.

In response to a request from this office the Protestant’s counsel supplied the following relevant documents as evidence: CF 7501 entry summaries for entry numbers 179-xxxxx42-0; 179-xxxxx07-2; 179-xxxxx91-3; 179-xxxxx64-6; and 179-xxxxx61-7; and the invoices associated with these entries: invoice number 053/01, dated August 6, 2001; invoice number 051/01, dated July 30, 2001; invoice number 056/01, dated August 9, 2001; invoice number 049/01, dated July 23, 2001, respectively. There appears to be no CF 7501 for entry number 179-xxxxx85-7. “Multiple Country Declaration” forms showing styles and export dates for the garments were also included.

Because of the multiple entries and numerous style numbers three entry numbers: 179-xxxxx61-7, 179-xxxxx42-0, 179-xxxxx07-2 were used as representative of the entry transactions. Entry number 179-xxxxx61-7 was chosen by the Protestant and the two other entries were chosen at random by this office. The pertinent details of these three CF 7501s are as follows: the importer of record on each is as Jaclyn, Inc.; the exporting country is Mexico and the country of origin is shown as “multi.” The following information appears as the description of merchandise, in pertinent part:

179-xxxxx61-7
TSUS No.
Manifest Qty
Entered Value
TSUS Rate
WEARING APPAREL
Invoice Number – 05801 08/16/01
001 OTH ART ASMB W/US FAB COMPONTS
MX 9802.00.8066
OTH WOMEN’S GARMENTS MN-MD FIB
MX 6108.92.00.0030
928 DOZ
86936
FREE

179-xxxxx07-2
TSUS No.
Manifest Qty
Entered Value
TSUS Rate
WEARING APPAREL
Invoice Number – 05101 07/30/01
001 OTH ART ASMB W/US FAB COMPONTS
MX 9802.00.8066
OTH WOMEN’S GARMENTS MN-MD FIB
MX 6108.92.00.0030
569 DOZ
46626
FREE

179-xxxxx42-0
TSUS No.
Manifest Qty
Entered Value
TSUS Rate
WEARING APPAREL
Invoice Number – 05301 08/06/01
001 OTH ART ASMB W/US FAB COMPONTS
MX 9802.00.8066
OTH WOMEN’S GARMENTS MN-MD FIB
MX 6108.92.00.0030
868 DOZ
76277
FREE

Other non-NAFTA goods appear on the entry summaries but are not necessary to this analysis and are therefore not included here.

Also included are the invoices for these entries: invoice number 05801, dated August 16, 2001, invoice number 053/01, dated August 6, 2001, and invoice number 051/01 dated July 30, 2001. These three invoices state the exporter as I. Appel DE Mexico, S.A. DE C.V. The party the goods were sold to is Jaclyn Apparel. All of the goods that appear to be NAFTA qualifying goods are described as “women’s knit robe 100% polyester.” The quantity of pieces per style number, their unit price and total price is also included.

The following style numbers are designated as NAFTA qualifying on the invoice number 058/01 (entry number 179-xxxxx61-7): 1100; 1100M; 1100 MX; 1100P; 1101; 1101X; 1102; 1102M; 1102P; 1102X; 1103; 1103X; 1105 M; 1105; 1105X; 1107; 1107X; 1108; 1108M; 1108MX; 1108X; 1109; 1109P; 1109X; 1110; 1110P; 1112M; 1114; 1114X; 1115; 1115X; 1116M; 1116MX; 1118; 1118M; 1118MX; 1119; 1119M; 1124. The total number of garments asserted as NAFTA qualifying is 11,137 or 928 dozen.

Invoice number 051/01, (entry number 179-xxxxx07-2), lists the following style numbers as NAFTA qualifying: 1101P; 1101; 1101X; 1101M; 1105M; 1105; 1105X; 1114MX; 1114; 1114MP; 1114X; 1118; 1118M; 1118X; 1148; 1148P. The total number of garments asserted as NAFTA qualifying is 7,067 or 589 dozen.

The following style numbers are designated as NAFTA qualifying on the invoice number 053/01 (entry number 179-xxxxx42-0): 1100M; 1100MP; 1101; 1101M; 1101MP; 1101MX; 1101P; 1101X; 1102M; 1102P; 1105M; 1105; 1105X; 1109; 1109X; 1114M; 1114; 1114MP; 1114X; 1114MX; 1118; 1118M; 1118X; 1119; 1119M. The total number of garments asserted as NAFTA qualifying is 10,421 or 868 dozen.

ISSUE:

Did the Protestant possess valid NAFTA Certificates of Origin at the time of entry as required by 19 CFR § 181.21?

LAW AND ANALYSIS:

We note initially that the instant Protest was timely filed, i.e., within 90 days of the liquidation of the entries (19 USC § 1514(c)(3)(B)). The subject entries were liquidated on November 9, 2001, and November 23, 2001, and this Protest was filed on Jan 23, 2002. Under 19 USC § 1514(a) “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . the liquidation or reliquidation of an entry . . . are final unless a protest of that decision is filed within 90 days of the decision (19 USC § 1514(c)(3)(B)). We assume the Protestant is protesting the liquidation of the noted entries without NAFTA origin tariff preference.

It is the opinion of your office that the Protestant’s Request for Further Review meets the requirements of 19 CFR § 174.24 because “this issue has not previously been ruled upon” and is therefore entitled to review by this office. We disagree. The criteria for granting a request for further review are set forth in 19 C.F.R. §174.24 which states,

Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of §174.25 when the decision against which the protest was filed: a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise; (b) Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;(c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or (d) Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.

Therefore, further review will be accorded to the party filing an application for further review which meets the requirements of §174.25 and at least one of the criterion in §174.24. The Protestant, in support of its Application for Further Review, states that, the port’s denial of this Protest “would raise an issue of lack of uniformity in the classification of similar articles in light of the noted decision and would obviously raise an issue of interpretation of a ruling of the Commissioner.” We are at a loss as to how this statement pertains to the instant protest – the classification of no items is at issue nor does the Protestant refer to any decisions.

The Protestant makes no argument, as required by Customs Regulations, to support its position that its Protest is entitled to further review nor alleges any of the conditions required to be alleged in § 174.24. Consequently, we note at the outset that the criteria for further review as set out in 19 CFR § 174.24 have not been met by the subject Application, and will treat this application as a request for internal advice per 19 C.F.R. § 177.11.

We first note that the issue presented is not one concerning a post-importation claim for a refund of duties pursuant to 19 USC § 1520(d). As provided, in part, therein,
notwithstanding the fact that a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to refund any excess duties paid on a good qualifying under the rules of origin set out in section 202 of the North American Free Trade Agreement Implementation Act for which no claim for preferential tariff treatment was made at the time of importation, if the importer, within 1 year after the date of importation, files, in accordance with those regulations, a claim that includes --

(1) a written declaration [etc.]
(2) copies of . . . NAFTA certificates of Origin [etc.] (3) such other documentation [etc.]

(19 USC § 1520(d)). In the present case, a Protest has been timely filed, wherein the Protestants seek a refund of duties per se, as distinguished from a protest of a decision to refuse to reliquidate for a failure to claim NAFTA duty preference.

In furtherance of its Protest, Jaclyn states,

“we hereby protest the decision of Customs to disallow the NAFTA claims on the wearing apparel entered under the protested entries for all but Styles 1101 and 1104. All of the other styles on the entries are covered by valid NAFTA certificates of origin (CO). It appears that Customs simply assumed that because the importer did not have a properly executed CO for Styles 1101 and 1104, it did not have a properly CO for the remaining styles. However, Customs never requested the CO for the remaining styles. The importer has properly executed CO for all the remaining styles . . . .”

The Port argues for denial of Jaclyn’s Protest because,

“the importer has presented no evidence that the styles for the cited [protested] entries were different [than the entry for which the Certificate of Origin was originally submitted]. As these are electronic entries, if the importer does not provide any documentation, no verification of this information [pertaining to style numbers for the protested entries] can be made. The importer was also unable to substantiate their claim of possession of the certificates of origin at the time the claim for preferential tariff treatment was made.”

In connection with a claim for preferential tariff treatment for a good under the NAFTA, the U.S. importer shall make a written declaration that the good qualifies for such treatment (19 CFR § 181.21). The written declaration may be made by including on the entry summary, or equivalent documentation the symbol "MX" for a good of Mexico as a prefix to the subheading of the HTSUS under which each qualifying good is classified. On the CF 7501s for entry numbers 179-xxxxx61-7, 179-xxxxx07-2, and 179-xxxxx42-0 the symbol “MX” appears before the subheading 6108.92.0030. This is the Protestant importer’s written declaration that the goods entered therein qualify for preferential tariff treatment under the NAFTA.

Except as otherwise provided this declaration shall be based on a complete and properly executed original or copy of the Certificate of Origin which is in the possession of the importer at the time of the declaration and which covers the good being imported (19 CFR § 181.21(a)). Further § 181.22(b) of the Customs Regulations states in pertinent part, "an importer who claims preferential tariff treatment on a good under § 181.21 of this part shall provide, at the request of the port director, a copy of each Certificate of Origin pertaining to the good which is in the possession of the importer."

Thus, an importer is required to submit a Certificate of Origin which was in its possession at the time of importation to Customs upon request, in order to receive preferential tariff treatment. In HRL 228506, Customs stated that “[t]he failure to supply promptly, within the 30-day period set in CF 28, a Certificate of Origin creates a rebuttable presumption that the importer did not have such a CO in its possession at the time of importation.” However, this presumption can be rebutted if the importer provides credible and sufficient evidence that the party had a valid Certificate of Origin in is possession at the time of the claim. See, for example HRL 561991, dated March 29, 2001.

Here, the Protestant supplied a CO dated August 20, 2001, for entry 179-xxxxx26-0, entered July 10, 2001. Per 19 CFR § 181.21(a) the CO “must cover the good being imported.” Therefore, because the Certificate was dated subsequent to when the goods were entered, the port denied, “NAFTA preferential tariff treatment for all entries of women’s knit cotton and polyester robes imported by Jaclyn Inc. prior to that date was denied” including the six entries which are the subject of the instant protest and for which no Certificate of Origin was requested.

We are of the opinion that because no Certificates of Origin for the protested entries were ever requested by the port, there can be created no presumption that the importer did not have such Certificates of Origin in its possession at the time of importation. Further, the port did not have authority to deny the NAFTA preferential tariff treatment without requesting the Certificates of Origin for the specific entries. Per 19 CFR § 181.71, unless a CO or a corrected Certificate is not submitted when requested or as otherwise provided in 19 CFR § 181.22(c) or except as provided in § 181.23 (regarding transshipment) or
in the case of a pattern of conduct provided for in § 181.76(c) of this part, Customs shall deny preferential tariff treatment on an imported good, or shall deny a post-importation claim for a refund filed under subpart D of this part, only after initiation of an origin verification under § 181.72(a) of this part which results in a determination that the imported good does not qualify as an originating good or should not be accorded such treatment for any other reason as specifically provided for elsewhere in this part

(19 CFR § 181.71). Therefore, because Certificates were never requested and no origin verification was performed, none of the exceptions contained in 19 CFR § 181.71 apply to the Protestant’s case and NAFTA preferential treatment should not have been denied for the protested entries.

We agree with the port in that the Protestant did not supply evidence of any kind to substantiate its claim that certain style numbers, for which it had valid Certificates of Origin in its possession at the time of entry, were entered with the protested entries. Without Jaclyn’s supplying to the port the documents demonstrating that certain styles - to which valid Certificates of Origin applied - were entered with the protested entry numbers, it was impossible to grant the relief requested by the Protestant. However, this office requested and the Protestant’s counsel supplied the evidence described above.

During a telephone conversation with an attorney from this office, Jaclyn’s counsel explained the significance of this submitted evidence. Counsel explained that only some of the style numbers on the invoices were NAFTA qualifying, and that these style numbers could be identified because they were the only style numbers which appeared on the submitted Certificates of Origin. Further, since the goods asserted as NAFTA qualifying were, as evidenced by the Certificates of Origin, were entered under subheading 6108.92.0030, (HTSUS), with the “MX” declaration and the duty rate is “free” it can be discerned which line number on the entries is associated with the purported NAFTA qualifying goods.

As stated above, the evidence for entry numbers 179-xxxxx61-7, 179-xxxxx42-0, 179-xxxxx07-2 was used as representative of the entry transactions. it is from this evidence that we concluded that the Protestant’s statement that it had “enclosed properly executed COs for all of the styles except for style numbers 1101 and 1104” is incorrect. When comparing the entry summaries for these three entries with the Certificates of Origin applicable to the time period they were entered it is apparent that there is no CO for style numbers: 1100; 1100M; 1100MX; 1100P; 1100MP; 1101; 1101M; 1101MP; 1101MX; 1101P; 1101X; 1112M; 1114; 1114X; 1114M; 1114MP; 1114MX 1124 1124X; 1148; or 1148P.

With regard to entry number 179-xxxxx61-7, entered August 17, 2001, the entry summary states that for subheading 6108.92.0030, HTSUS, for which NAFTA preferential tariff treatment was declared, the total quantity of garments thus entered was 928 dozen or 11,136 garments. The invoice states 928 dozen or 11,137 garments. However, when comparing the style numbers on the invoice to the style numbers on the Certificates of Origin there is no CO for the following style numbers: 1100; 1100M; 1100MX; 1100P; 1101; 1112M; 1114; 1114X; 1124 or 1124X.

With regard to entry number 179-xxxxx42-0, date of entry August 9, 2001, the entry summary states that for subheading 6108.92.0030, HTSUS, for which NAFTA preferential tariff treatment was declared, the total quantity of garments thus entered was 10,416 or 868 dozen. The invoice also states 868 dozen garments but 10,421 pieces. When the style numbers on the invoice are compared to the style numbers on the Certificates of Origin for the blanket period July 1, 2001 to December 31, 2001, we discovered that there is no CO for style numbers 1100M; 1100MP; 1101; 1101M; 1101MP; 1101MX; 1101P; 1101X; 1114M; 1114MP; 1114X; or 1114MX.

With regard to entry number 179-xxxxx07-2, date of entry July 31, 2001, the CF 7501 states that for subheading 6108.92.0030, HTSUS, for which NAFTA preferential tariff treatment was declared, the total quantity of garments thus entered was 569 dozen OR 6,828 garments. However, when compared to invoice number 051/01, dated July 30, 2001, there are discrepancies. The invoice states that 7,067 or 589 dozen garments, asserted to be NAFTA qualifying were entered – a difference of 239 pieces when compared to the entry summary. Further, when the style numbers appearing on the invoice were compared to the style numbers on the Certificates of Origin for the blanket period July 1, 2001 to December 31, 2001, it is apparent that there is no CO for style numbers 1101P; 1101; 1101X; 1101M; 1114MX; 1114; 1114MP; 1114X; 1148; or 1148P.

As stated above, Jaclyn’s declaration that its goods qualify for preferential tariff treatment under the NAFTA must be based on a complete and properly executed original Certificate of Origin which was in its possession at the time the declaration was made and which covers the good being imported (19 CFR § 181.21(a)). The requirements for a valid CO are set forth in 19 CFR 181.22(b), which states in pertinent part:

(1) Shall be on Customs Form 434, including privately-printed copies thereof, . . . ;

(2) Shall be signed by the exporter or by the exporter's authorized agent having knowledge of the relevant facts;

(3) Shall be completed either in the English language . . . ;

. . . ; and

(5) May be applicable to:

. . . (ii) Multiple importations of identical goods into the United States that occur within a specified period, not exceeding 12 months, set out therein by the exporter or producer.

The three Certificates of Origin applicable to the sample entries are dated July 2, 2001; the blanket periods specified are July 1, 2001 to December 31, 2001. The Certificates are in English, are signed by the exporter’s representative and are applicable for less than 12 months. The Certificate cover from July 1, 2001 to December 31, 2001 and the sample entries were entered August 17, 2001, August 9, 2001, and July 31, 2001. Hence, the Certificates of Origin are valid with regard to the style numbers that appear both on the Certificates and the invoice. However, with regard to the style numbers above, for which no valid CO has been submitted NAFTA preferential tariff treatment cannot be granted.

In support of its contention that it had the Certificates in its possession at the time the declaration was made, Jaclyn submitted two affidavits: an affidavit executed by LC. Leticia Soledad Acuna Espinosa, the legal representative of the exporter, I Appel DE Mexico, S.A. DE C.V. in which it is stated that these Certificates were issued and sent to Jaclyn “once Appel received the fabric but prior to production of the subject merchandise. We note here that the affiant cannot attest to the fact that Jaclyn received the Certificates, only that she sent them since she has no direct knowledge of the affairs of the Protestant. The second affidavit was executed by Gary Shepard, Vice President of Manufacturing for Jaclyn Inc. In this affidavit Shepard swears that, based on his personal knowledge and belief, the eight NAFTA Certificates of Origin issued by Espinosa, “were in Jaclyn’s possession prior to the time Appel shipped the subject merchandise to Jaclyn for entry into the United States.”

In HRL 561991 (March 29, 2001), as evidence that the protestant possessed the certificate of Origin at the time of the claim, the importer submitted an affidavit stating that he had the Certificate of Origin in his possession at the time of the claim. In that case we stated:

“The evidentiary question returns to the affidavit as the only dispositive evidence to rebut the presumption that the protestant did not possess the Certificate of Origin at the time of the claim. The affidavit is not direct evidence (as was provided by protestants in HRL 228506 and in HRL 561862) that the protestant possessed the Certificate of Origin at the time of the claim. However, the credibility of the affidavit in the instant case has been supported by corroborating evidence substantiating certain claims in the affidavit. We are also unaware of any evidence which would undermine the credibility of the affidavit.”

In contrast to the facts in HRL 561991, we have already decided that, as stated above, because no Certificates of Origin for the protested entries were ever requested by the port, there can be created no presumption that the importer did not have such Certificates of Origin in its possession at the time of importation. Therefore, in the instant Protest there is no presumption to rebut and the affidavits supplied by the Protestant are credible and sufficient evidence that the importer had the Certificate of Origin in its possession at the time of the claim.

HOLDING:

To the extent that the Protestant did not have valid Certificates of Origin in its possession for the styles noted above and any others at the time the claim was made the Protest should be DENIED. To the extent the Protestant can demonstrate which style numbers for which it had, in its possession at the time the claims were made, valid Certificates of Origin and submits to the Port the necessary changes and amendments to the entries, the Protest is hereby GRANTED.

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 this 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 this decision available to Customs personnel, and to the public via the Customs Home Page on the World Wide Web, the Freedom of Information Act, and other public distribution channels.

Sincerely,

Myles B. Harmon, Acting Director

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