PRO-2-02-CO:R:C:E 223086 PH
Regional Commissioner
New York Region
ATTN: Head, Protest and Control Section
RE: Protest 1001-91-000771; Demand for Redelivery; Country of
Origin; 15 U.S.C. 1124, 1125
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the points raised by your
office and the protestant. Our decision follows.
FACTS:
According to the file, the protestant entered 160 dozen
ladies' lambswool sweaters, marked with Macau as the country of
origin, on September 13, 1990. On October 29, 1990, Customs
issued a demand for redelivery for the merchandise, stating in
the "Remarks" portion of the form: "Not admissible. 'False
Designation of Origin.' In violation of 15 U.S.C. 1124/1125.
This is a demand for re-delivery." The protestant protested the
demand for redelivery on January 25, 1991, and applied for
further review.
In the Customs Protest and Summons Information Report (CF
6445), the District Director takes the position that the protest
should be denied because "the factory that supposedly produced
these sweaters was not capable of knitting sweaters". This
finding is stated to have been made by the Office of Enforcement.
In its brief submitted with the protest, the protestant
claims that the merchandise was, in fact, the product of Macau
and that there is no substantive evidence supporting the
allegation by Customs of false designation of origin and,
consequently, no basis for issuance for the demand for
redelivery. Therefore, the protestant argues, the demand for
redelivery should be cancelled. The protestant states that
because the demand for redelivery was issued almost seven weeks
after entry and release by Customs of the merchandise, and
because the merchandise is highly seasonable, the merchandise had
long since been delivered to the protestant's customers and
redelivery was impossible.
The protestant states that to the best of its knowledge, the
merchandise under consideration was made in Macau by the
manufacturer listed as the manufacturer of the merchandise in the
documents it submitted. The basis for this belief is information
furnished by the protestant's buying agent and statements
received from the alleged manufacturer.
With its protest, the protestant submitted copies of a
"Confirmation of Order" dated May 31, 1990 (amended June 7,
1990), for 300 dozen sweaters to be shipped from Macau, listing
the alleged manufacturer as the manufacturer, and providing that
shipping marks for the merchandise are to include "Made in Macau"
and two Customs Forms 661 (Special Customs Invoice) (visas)
issued May 4 and 5, 1990, for a total of 160 dozen ladies'
lambswool sweaters, listing Macau as the country of origin of the
goods (Numbers 020862 and 020972). Also submitted by the
protestant were documents purported to have been issued by the
alleged manufacturer or signed by an official of the alleged
manufacturer as to the manufacture and/or processing of the
merchandise in Macau.
With regard to the visas for the merchandise, referred to
above, we have received a copy of a communication dated November
21, 1991, from the Director of the Office of Economic Services of
Macau stating that the visas were revoked and a fine was assessed
against the manufacturer of the merchandise under consideration
because they were not produced according to the rules of origin.
ISSUE:
Is there sufficient evidence in this protest/application for
further review to grant the protest of the demand for redelivery
of the merchandise under consideration?
LAW AND ANALYSIS:
Initially, we note that the protest, with application for
further review, was timely filed under the statutory and
regulatory provisions for protests (see 19 U.S.C. 1514 and 19 CFR
Part 174) and that the decision protested, a demand for
redelivery, is a protestable decision (see 19 U.S.C. 1514(a)(4)).
In interpreting 19 U.S.C. 1514 and its predecessors, the
Courts have held that Customs decisions are presumed to be
correct and there is a burden on the protestant to show that
Customs decisions are incorrect and to prove that the position
advocated by the protestant is correct (see Hayes-Sammons
Chemical Co. v. United States, 55 CCPA 69, 72, C.A.D. 935 (1968);
Wishnatzki & Nathel v. United States, 13 Cust. Ct. 221, C.D. 898
(1944) (with regard to the issue of the correct country of
origin); and United States v. Hudson Forwarding & Shipping Co.,
18 CCPA 258, 262, T.D. 44427). In the last cited case, the Court
stated:
The classification of the collector is presumed
to be correct, and therefore the burden was upon
the appellee to overcome such presumption by
testimony making a prima facie case controverting
the presumed facts. If such prima facie case be
made by the importer, it becomes a matter of
weighing the evidence, and the presumption of
correctness attached to the finding of the
collector is not to be regarded as having
evidential value, and can not be weighed against
the evidence challenging the correctness of his
findings. [18 CCPA at 262.]
The evidence in this case favoring the protestant consists
of a "Confirmation of Order" for 300 dozen ladies' lambswool
sweaters to be shipped from Macau, which is claimed to represent
an order for the merchandise under consideration (which consists
of 160 dozen ladies' lambswool sweaters), visas for 160 dozen
ladies' lambswool sweaters listing Macau as the country of
origin, and statements of the alleged manufacturer or an official
of the alleged manufacturer alleging that the origin of the
sweaters was Macau. On the other hand, as stated in the FACTS
portion of this ruling, we have received evidence that these
visas have been revoked by the Government of Macau. Further, the
credibility of the alleged manufacturer of the sweaters is
damaged by the action of the Government of Macau in revoking the
visas and fining the alleged manufacturer because the sweaters
under consideration were not produced according to the rules of
origin. After reviewing this evidence, we conclude that even if
the protestant may have made a prima facie case that the origin
of the sweaters under consideration was Macau (and we do not
concede that this is so, in light of the communication from the
Government of Macau, referred to above), the weight of the
evidence supports the denial of admissibility of the sweaters
under 15 U.S.C. 1124 and 1125. The protest is DENIED.
HOLDING:
The weight of evidence in this protest/application for
further review supports the denial of admissibility, under 15
U.S.C. 1124 and 1125, of the merchandise under consideration.
The protest against the demand for redelivery of the merchandise
under consideration must be denied.
You are directed to deny the protest under consideration. A
copy of this decision should be attached to the Form 19, Notice
of Action, to be sent to the protestant.
Sincerely,
John Durant, Director