HQ 229609 - Application for Further Review of Protest number 2402-02-100008; A.O. Smith Electrical Products Co.; reconciliation; liquidation; protest - United States International Trade Commision Rulings

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HQ 229609

September 23, 2002

LIQ-9 PRO-2-02 RR:CR:DR 229609 EAB

CATEGORY: LIQUIDATION PROTEST

Port Director
US Customs Service
3600 E. Paisano
Building B
El Paso, Texas 79905
ATTN: Trade Compliance Duty Assessment

RE: Application for Further Review of Protest number 2402-02-100008; A.O. Smith Electrical Products Co.; reconciliation; liquidation; protest

Dear Port Director:

The referenced protest, dated January 28, 2002, was forwarded to our office for review of your decision to deny refund of duties paid on NAFTA originating goods. Our decision follows.

FACTS:

Over the course of time, consumption entries were filed through ABI. Each of these entries covered, in part, goods that originated in a NAFTA country but for which no claim for preferential tariff treatment was made at the time of importation, in consequence of which, each entry was liquidated with duties and the merchandise processing fee (19 U.S.C. § 58c(a)). Pursuant to 19 U.S.C. § 1520(d), within a year from the importation of each of the consumption entries the protestant filed 11 claims for reliquidation, seeking a refund of the paid duties and MPF. The relief petitioned for was granted with respect to all consumption entries. During this entry-to-reliquidation evolution, the broker filed "Client Reconciliation" documents with Customs, which formed the basis for three separate reconciliation entries. The reconciliation entries declared increased value of the goods on the previously entered consumption entries, which necessitated additional payment of duties on those goods.

Representative consumption entry 665-NNNN213-4 was electronically filed on April 4, 2000, against which $101.85 in duties and $25 MPF were assessed for goods that originated in a NAFTA country but for which no claim for preferential tariff treatment was made at the time of importation. This consumption entry was part of reconciliation entry 665-NNNN482-0 entered November 29, 2000. Additional duties in the sum of $29.76 were tendered with this reconciliation entry. On April 2, 2001, the protestant filed its petition (number 2402-01-300153) under section 520(d) requesting reliquidation of the consumption entry and a refund of the $101.85 in duties and $25 in MPF. This section 520(d) claim failed to include the $29.76 in additional duties paid on reconciliation. Customs reliquidated the consumption entry on December 21, 2001 and refunded the $101.85 in duties and the $25 MPF that were claimed. Reconciliation entry 665-NNNN482-0 was liquidated on March 15, 2002.

Protestant, on January 28, 2002, filed this

. . . protest against the partial denial of 1520(d) claims referenced on Attachment A. As per 19 CFR 181.33(d) protest is hereby being made against the reliquidations of the consumption entries listed on Attachment A.

Continuation Sheet, Section III, CF-19.

ISSUE:

Whether a request to reliquidate a consumption entry in order to obtain a refund of duties paid on a reconciliation entry of that consumption entry may be granted under 19 U.S.C. § 1520(d).

LAW AND ANALYSIS:

The liquidation or reliquidation of any entry, or reconciliation as to the issues contained therein is a protestable decision under 19 U.S.C. § 1514(a)(5) and a protest of a decision shall be filed within ninety days after but not before either notice of liquidation or reliquidation or, in circumstances where notice of liquidation or reliquidation is inapplicable, the date of the decision as to which protest is made. See 19 U.S.C. § 1514(c)(3).

From the "Detailed Reasons For Protest" set forth in Section III of the CF-19, the decision at issue is the denial of the refund of a representative sum of $29.76 in duties. Those duties were paid, not on consumption entry 665-NNNN213-4, but on reconciliation entry 665-NNNN482-0. All of the duties ($101.85), plus the MPF ($25) that were paid on consumption entry 665-NNNN213-4 were refunded upon reliquidation of that entry on December 21, 2001, the relief sought under claim number 2402-01-300153 filed on April 2, 2001 pursuant to 19 U.S.C. 1520(d). The refusal to refund the $29.76 in duties paid occurred on the date that reconciliation entry 665-NNNN482-0 was liquidated, namely March 15, 2002. This protest was filed on January 28, 2002. Since a protest shall be filed within ninety days after but not before notice of reliquidation, this protest was untimely filed. Furthermore, since more than 90 days from the date of liquidation of reconciliation entry 665-NNNN482-0 have lapsed, no section 514 protest can be timely filed against the liquidation of that entry. While specific dates and duty amounts differ, we find the same with respect to reconciliation entry 665-NNNN916-5, which also liquidated on March 15, 2002. Finally, with respect to reconciliation entry 665-NNNN824-9, which liquidated on February 16, 2001, we find that this protest is untimely as having been filed more than 90 days from the date of liquidation of said entry.

Concerning goods qualifying under NAFTA rules of origin:

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 3332 of this title 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 . . . . [emphasis added]

19 U.S.C. § 1520(d).

The entry on which the $29.76 in duties was paid was reconciliation entry 665-NNNN482-0 and the date of importation of the goods was April 3, 2000 (see consumption entry 665-NNNN213-4). Since the subject claim was filed on January 28, 2002, it was filed more than 1 year after the date of importation and is, therefore, untimely. The same may be said regarding reconciliation entry 665-NNNN916-5, consumption entry 665-NNNN936-0 (July 3, 2000) and reconciliation entry 665-NNNN824-9 for which the dates of importation of all consumption entries were no later than July 26, 2000.

HOLDING:

The Protest should be denied.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, 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 take steps to make the decision available to customs personnel via the Customs Ruling Module in ACS and public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

William G. Rosoff, for

Myles B. Harmon,
Acting Director

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