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HQ 548359




December 31, 2003

RR:IT:VA 548359 CC

CATEGORY: VALUATION

Port Director
Customs and Border Protection
3600 E. Paisano Dr., Bldg B
El Paso, TX 79905

RE: Application for further review of Protest No. 2402-02-100053; 19 CFR § 174.23; 19 CFR § 174.12(e) and 19 U.S.C. § 1514(c)(3)

Dear Sir:

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 consists of one entry of merchandise made on December 5, 2001, by Mediacopy Texas, Inc. The merchandise at issue is DVD production lines from Taiwan. The subject merchandise was entered under subheading 8477.10.4000 of the Harmonized Tariff Schedule of the United States (HTSUS), which is a duty-free provision. Subsequent to entry, you determined that based on Headquarters Ruling Letter (HRL) 961441, dated June 10, 1999, the merchandise should have been classified under subheading 8479.89.9797, HTSUS, dutiable at 2.5 percent ad valorem. Due to this classification, you rate advanced the importer for additional duties. Liquidation of the entry occurred, with the additional duties, on March 8, 2002.

The importer filed a protest in a timely manner on June 6, 2002, contesting the appraisement of the subject merchandise. The importer claimed that there was an invoicing error by the Taiwanese manufacturer and that the subject merchandise was actually used goods with a market value at $750,000 each, rather than the declared value of $1,382,484 each. According to the importer, the market value of the used goods is based on an independent appraisal, which was submitted. The importer claims that transaction value should be rejected because the importer and the seller were related, and because no other method exists to appraise the goods, they should be appraised under the fallback method using the appraisal.

An application for further review on a Customs Form (CF) was submitted to you on June 26, 2003. This submission included justification for further review under the criteria in 19 CFR § 174.24 and § 174.25.

ISSUE:

Whether the application for further review was timely filed.

LAW AND ANALYSIS:

19 CFR § 174.23 provides the time period for filing an application for further review. It states, in pertinent part the following:

A protesting party may seek further review of a protest in lieu of review by the port director by filing, on the form prescribed in § 174.25, an application for such review within the time allowed and in the manner prescribed by § 174.12 for the filing of a protest ....

19 CFR § 174.12(e) and 19 U.S.C. § 1514(c)(3) provide that a protest against the liquidation of an entry shall be filed with Customs within ninety days after the notice of liquidation or reliquidation. See also, HRL 087980, dated December 19, 1990, and HRL 962299, dated June 11, 1999.

The protest was timely filed by the importer on June 6, 2002, 90 days after the date of liquidation of the subject entry. No application for further review, however, was filed with the protest. The importer did not file an application for further review until June 26, 2003, over one year after the time period for filing an application for further review had closed, in accordance with 19 CFR § 174.12(e) and 19 U.S.C. § 1514(c)(3). Consequently, the application for further review is denied.

HOLDING:

The application for further review was untimely filed and therefore is denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs and Border Protection personnel, and to the public on the Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Virginia L. Brown

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