United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2003 HQ Rulings > HQ 229486 - HQ 229962 > HQ 229602

Previous Ruling Next Ruling
HQ 229602





November 1, 2002

DRA-4-RR:CR:DR 229602 IOR

CATEGORY: DRAWBACK

Assistant Port Director
U.S. Customs Service
Trade Operations
610 S. Canal St.
Chicago, IL 60607

ATTN: Patricia Moore

Drawback Specialist

RE: Protest Application for Further Review No. 3901-02-100247; 19 U.S.C. 1313(j)(1); 19 CFR 191.51(a); 19 CFR 191.52; drawback; completion of claim; perfection; amendment

Dear Sir:

The above-referenced protest was forwarded to this office for further review by memorandum dated July 26, 2002, from your office. Our decision follows.

FACTS:

This protest pertains to the liquidation of one drawback entry. Drawback entry WY7-xxxx634-4 was filed by Venator Group Specialty, Inc. (“Venator”) on December 21, 2000, on the basis of 19 U.S.C. §1313(j)(1). The drawback claim was supported by an import summary and an export summary. The exports are asserted to have occurred from May 20, 1998 through June 17, 1998, to Canada. The exporter of the merchandise is identified as Afterthoughts, which has the same 9-digit taxpayer I.D. no. as Venator, and is a division of Venator. A Notice of Action, CF 29, dated September 13, 2001 was issued to Venator, indicating that upon liquidation the drawback claimant will be billed for accelerated drawback already paid, because the designated merchandise was not listed on the import entries, and inresponse to a telephone call from Customs on the matter, no response had been received. A Notice of Action, CF 29, dated November 9, 2001 was issued to Venator, indicating that the drawback refunds would be denied for the reason that the “part numbers listed on the drawback claims did not match the part numbers listed on import entries.” The drawback entry was liquidated with no drawback on November 9, 2001.

A letter dated October 12, 2001 was submitted on behalf of Venator in response to the CF 29 issued September 13, 2001. However, the letter only addressed the descriptions of the merchandise itself, and not the fact that the part numbers are not listed on the import entries.

The subject protest was filed on February 7, 2002. The protest included a “perfected” drawback claim, that included a new import summary. The grounds for the protest is that “all the required information for drawback purposes is available”. Specifically, as to the part numbers not matching the entry numbers, the protestant asserts as follows:

There was a clerical error made within the claim reports with regard to the part numbers that were designated against valid import entries.

All the part numbers listed on this drawback entry were indeed imported. All the import entries on this entry were valid import entries. However due to the clerical error, the data was inadvertently scrambled before being entered into the broker’s system and therefore parts were designated to a valid Import Entry. While the import entries were valid they were not the ones that went with the corresponding part numbers.

The parts are now designated to the correct import entry.

The following are examples of the “scrambled” data that was initially submitted with the drawback entry. According to the import summary filed with the drawback claim on December 21, 2000, part no. 23-07273-9-00, described as keyrings, was imported under import entry no. 442-xxxx153-6 on February 13, 1998, and six units were exported on which Venator claims drawback. However, the invoice for entry no. 442-xxxx153-6 does not include any merchandise with part no. 23-07273-9. Part no. 23-07273-9-00 is not included on the import summary filed with the drawback claim filed on February 7, 2002 with this protest.

On the import summary filed with the drawback claim on December 21, 2000, part no. 30-06731-8-00, described as “1200 2ON HDBD BLUEGLTTR/P” is indicated to have been imported under entry no. 442-xxxx772-4, on March 31, 1998. According to ACS, the entry date for entry no. 442-xxxx772-4 is February 24, 1998. The import summary filed with the drawback claim filed on February 7, 2002 with this protest, shows part no. 30-06731-8-00, described as “1200 2ON HDBD BLUEGLTTR/P” to have been imported under entry no. 442-xxxx153-6, on March 31, 1998, and in fact, the import invoice for that entry includes part no. 30-06731-8-00. According to the CF 7501, the import date of the merchandise was March 30, 1998.

The list of export shipments was not changed in the drawback claim that was filed with the protest. The export summary lists the exports by part number and not import entry number.

We note that for part no. 30-05862-2-00, the original drawback claim, by the import and export summaries, indicated 21 pieces had been exported, while the “perfected” drawback claim by the corresponding import summary indicates 24 pieces have been exported.

The drawback claim filed on February 7, 2002 with this protest is for less drawback, because according to the protestant, some imports were deleted because the exports had “expired”.

ISSUE:

Whether the corrected import entry information was timely submitted to Customs.

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 November 9, 2001, when it was liquidated with no drawback. This protest was timely filed on February 7, 2002, 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)(1).

Under 19 U.S.C. §1313(j)(1), drawback is authorized if imported merchandise on which was paid any duty, tax, or fee imposed under Federal law because of its importation is, within three years of the date of importation, exported or destroyed under Customs supervision and was not used in the United States before such exportation or destruction. Under 19 CFR 181.45(b), an imported good subsequently exported to Canada or Mexico, in the same condition is eligible for drawback under 19 U.S.C. §1313(j)(1), and is not subject to NAFTA drawback, that is, without regard to the limitation on drawback set forth in 19 CFR 181.44.

Under 19 U.S.C. §1313(r), “a drawback entry and all documents necessary to complete a drawback claimshall be filedwithin 3 years after the date of exportation or destruction of the articles on which drawback is claimed.” The Customs regulation pertaining to the completion of drawback claims, 19 CFR 191.51(a)(1), provides that “a complete drawback claim under this part shall consist ofapplicable entry number(s),.” (Emphasis added).

The drawback claim filed on December 21, 2000, was not complete because it did not identify the entry numbers that correspond to the merchandise on which drawback was claimed, or the stated dates on which such merchandise was imported. The applicable entry numbers were on the import summary itself, however there was no way that Customs could determine which entry number applied to the identified imported merchandise on which drawback was claimed. There may as well have been no entry number listed at all.

The Customs Regulations, 19 CFR 191.52(b) permit the perfection of a completed drawback claim beyond the three-year period following the exportation of the merchandise. In this instance the provision allowing the perfection of a drawback claim is not applicable because the subject drawback claim was not complete within the three-year time period. The exportations took place from May 20, 1998 through June 17, 1998, therefore the claimant had at the latest until June 17, 2001 to file a completed claim as to at least some of the imported merchandise.

The Customs Regulations, 19 CFR 191.52(c) provide for the amendment of a claim. However any amendment must be made within three years after the date of exportation of the articles which are the subject of the original drawback claim. The “perfected” claim which correctly identified the entries that correspond to the merchandise on which drawback was claimed was untimely filed as an amendment of the claim.

We also note that the drawback claim filed on February 7, 2002 with this protest may not be entirely accurate because the quantity of exported merchandise on the corresponding import summary in at least one instance, was greater than the quantity of merchandise that was actually exported according to the export summary in the same drawback claim.

HOLDING:

The drawback claim filed with Customs was not complete and the corrected import entry information did not constitute a perfection of the claim, and the corrected import entry information was not timely submitted to Customs to constitute an amendment of the claim.

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, 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,

Myles B. Harmon
Acting Director
Commercial Rulings Division

Previous Ruling Next Ruling