LIQ-9-CO:R:C:E 223745 PH
District Director of Customs
Charleston, South Carolina 29402
RE: Application for Further Review of Protest No. 1601-91-
100308; Protest, What Is; 19 U.S.C. 1514
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 (copies of
documents in the file, which we understand you may need for the
processing of the protest, are returned with this ruling).
FACTS:
According to the file, on June 13, 1989, the protestant
imported four knitting machines. The merchandise was entered on
July 12, 1989, under subheading 9801.00.10, Harmonized Tariff
Schedules of the United States Annotated (HTSUSA), free of duty,
as "U.S. Goods Exported for Temporary Use Abroad". On August 9,
1989, a Request for Information (CF 28) was sent to the
protestant, requesting sufficient export documentation to
substantiate the claim (this CF 28 and the second CF 28 cited a
different entry, by a different importer, than the entry under
protest). In the CF 28 it was stated that failure to provide the
requested information would result in liquidation of the entry as
dutiable. It was stated that classification was contemplated
under heading 8447.90, HTSUSA. No response was received and a
second CF 28 was issued on December 12, 1989. No response was
received to this second request and on March 20, 1990, a Notice
of Action (CF 29) was issued advising that in the absence of
sufficient documentation to substantiate the claim for United
States goods returned, the merchandise was properly classifiable
under heading 8447.90, HTSUSA. On March 27, 1990, the protestant
sent a letter to the Customs officer who signed the CF 29 stating
that the merchandise under consideration had been shipped abroad
and then returned. Copies of supporting documentation were
forwarded with this letter. The entry was liquidated, with duty
and classification under heading 8447.90, HTSUSA, on April 20,
1990.
On April 19, 1991, the protestant (through a representative)
filed an application for reliquidation under 19 U.S.C.
1520(c)(1). According to this claim, "[d]ue to clerical error
incomplete invoices were presented by the importer which created
a mistake of fact, and a bill was generated at liquidation. This
machinery is actually, warp knitting machines eligible for duty-
free entry, of West German origin, and was previously imported as
such." On June 8, 1991, Customs denied the application for
reliquidation on the basis that the issue involved was a
classification issue which does not qualify for relief under
section 1520(c)(1).
On November 12, 1991, the representative of the protestant
wrote to Customs contending that correspondence of which he
provided copies constituted a timely protest of the liquidation
of the entry. This correspondence included the March 27, 1990,
letter from the protestant to Customs (referred to above), and a
May 1, 1990, inter-office memorandum from the protestant to the
District Director of Customs stating "I do not understand what
these charges are for. This is much more tha[n] we usually pay
for duty charges on our shipments. Please send me detailed
information on this shipment." The latter document cited as its
subject a "SERVICE BILL" number. Customs had responded to the
May 1, 1990, memorandum with a hand-written communication on the
same memorandum suggesting that the protestant contact its broker
and that the protestant should have received a CF 29 advising how
duty was to be charged. On November 26, 1991, the District
Director responded to the protestant's November 12, 1991, letter
and advised that no authority existed under which relief could be
granted in this case. On December 10, 1991, the protestant filed
the protest under consideration.
ISSUES:
(1) May the May 1, 1990, inter-office memorandum described
in the FACTS portion of this ruling be considered a protest, for
purposes of 19 U.S.C. 1514?
(2) If the May 1, 1990, inter-office memorandum is
considered to be a protest, may the hand-written response by
Customs on the same memorandum be considered a denial of that
protest?
(3) Are the knitting machines which are the subject of this
protest classifiable under subheading 8447.20.40, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), and free
of duty? LAW AND ANALYSIS:
Initially, we note that the denial of the protestant's
application for reliquidation under 19 U.S.C. 1520(c)(1) is not
at issue in this case, because that denial was not timely
protested.
Pursuant to 19 U.S.C. 1514, decisions of Customs officers as
to the classification and rate and amount of duties chargeable
are final and conclusive unless a protest is filed in accordance
with that provision or unless there is filed a civil action
contesting the denial of such a protest. Section 1514 provides
that a protest filed under that section must be filed in writing
with the appropriate Customs officer (as designated by
regulation) setting forth distinctly and specifically each
decision protested, each category of merchandise affected by each
such decision, and the nature of each objection and the reasons
therefor. The Customs Regulations pertaining to protests under
section 1514 are found in 19 CFR Part 174. Sections 174.12 -
174.16 of this Part concern the procedures for protests.
In this case, the protestant apparently is claiming that
either: (1) the March 27, 1990, letter from the protestant to
Customs contending that the merchandise under consideration had
been shipped abroad and then returned; or (2) the May 1, 1990,
inter-office memorandum from the protestant to the District
Director of Customs questioning what the charges were for and
stating that the duties were much more than usual, was a protest.
Clearly, the March 27, 1990, letter cannot be considered a
protest because it was premature (see the explicit wording of the
statute (19 U.S.C. 1514(c)(2)); see also United States v.
Reliable Chemical Co., 66 CCPA 123, 605 F. 2d 1179 (1979)).
With regard to the May 1, 1990, inter-office memorandum, as
the protestant suggests, the Courts have frequently addressed the
question of what sort of communication may be treated as a
protest. In the U.S. Supreme Court case of Arthur v. Morgan, 112
U.S. 495 (1884), that Court stated:
A protest is not required to be made with technical
precision, but is sufficient if it shows fairly that
the objection afterwards made at the trial was in the
mind of the party and was brought to the knowledge of
the collector, so as to secure to the government the
practical advantage which the statute was designed to
secure. [112 U.S. at 501.]
Similarly, in Eaton Manufacturing Co. v. United States, 60
CCPA 23, C.A.D. 1076, 469 F. 2d 1098 (1972), the Court stated:
This statutory provision [i.e., 19 U.S.C. 1514] and its
predecessors have been construed to mean that a protest
must be sufficiently precise to insure that the
collector will know what it is in the mind of the
protestant ... and to indicate that the objection taken
at trial was fairly in the mind of the protestant when
the protest was made. [60 CCPA at 29.]
In Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D.
4547, 377 F. Supp. 955 (1974), cited by the protestant, the Court
concluded, after reviewing the treatment by the Courts of the
issue of the sufficiency of a protest:
In short, the court, taking a liberal posture, has
held that, however cryptic, inartistic, or poorly drawn
a communication may be, it is sufficient as a protest
for purposes of section 514 if it conveys enough
information to apprise knowledgeable officials of the
importer's intent and the relief sought. [72 Cust. Ct.
at 262.]
(See also, Grover Piston Ring Co., Inc. v. United States, 3
Fed. Cir. (T) 57, 58, 752 F. 2d 626 (1985), "The statute
specifies that the protest must set forth each decision
(liquidation) protested, each category of merchandise affected by
each such decision, and the nature of each objection and reasons
therefor" (emphasis in original), affirming 7 CIT 286, 287
(1984), "The entry number, dates of entry and dates of
liquidation are among other information required to be set forth
in a protest ... Plaintiff not having listed the entry numbers,
etc. of the 99 entries, the protest was insufficient as to those
entries". See General Electric Co. v. United States, 7 Ct. Cust.
App. 157, 160, T.D. 36464 (1916); Carson M. Simon & Co. v. United
States, 55 Cust. Ct. 103, 107, C.D. 2558 (1965); and Cengar U.S.,
Inc. v. United States, 62 Cust. Ct. 350, 351-352, C,D, 3762
(1969), for cases indicating that some indication must be made in
the protest of the tariff classification or rate of duty which is
proposed (e.g., "When the importer has selected the right
paragraph, although confining the claim to the wrong clause in
the paragraph, the courts have held that the protest was
sufficiently specific to apprise the collector of what the
importer was claiming", Simon, supra).)
The only document which could possibly be a timely-filed
protest in this case is the May 1, 1990, inter-office memorandum.
This document did not provide an entry number, date of entry, or
a date of liquidation (see Grover Piston Ring Co., supra). Nor
did this document set forth the nature of the objection and the
reasons therefor (see Grover Piston Ring Co., supra; see also
Mattel, supra, in which the Court stated that a protest must at
least convey enough information to apprise knowledgeable
officials of the importer's intent and the relief sought; note
that in Mattel, supra, cited by the protestant, the entry number,
the date of entry and liquidation, the classification as
liquidated, and the proposed classification were stated).
Further, we note that to be sufficient, a protest must show that
the objection made was in the mind of the protestant at the time
of the protest (see Arthur v. Morgan, supra, and Eaton
Manufacturing Co., supra). In this case, all evidence in the
file shows that at the time of the May 1, 1990, inter-office
memorandum, the protestant was contending (incorrectly) that the
merchandise was classifiable under subheading 9801.00.10, HTSUSA,
as products of the United States returned. The April 19, 1991,
application for relief under 19 U.S.C. 1520(c)(1), is the first
contention (in the file) by the protestant that the West German
origin merchandise should have been classified under subheading
8447.20.40, HTSUSA, as now claimed by the protestant (as noted
above, since the protestant did not timely protest the denial of
this application, we may not consider whether the denial of the
application was proper). Based on the foregoing, and on the
Court decisions discussed above, we conclude that the May 1,
1990, inter-office memorandum may not be considered a protest.
Because the May 1, 1990, inter-office memorandum may not be
treated as a protest, we need not determine whether the hand-
written response on that inter-office memorandum should be
treated as a protest denial. (In this regard, however, see the
explicit words of 19 U.S.C. 1515(a), as amended in 1979; see
also, Sea-Land Service v. United States, 735 F. Supp. 1059 (CIT
1990), affirmed, 923 F. 2d 838 (CAFC 1991).) For the same
reason, we need not address the proper classification of the
merchandise under consideration. (In this regard, however, see
rulings 856821 (N.Y.) and 088061, and material in the file for
the latter, with regard to the classification of warp knitting
machines.)
On the basis of the foregoing, the protest is DENIED.
HOLDINGS:
(1) The May 1, 1990, inter-office memorandum described in
the FACTS portion of this ruling may not be considered a protest,
for purposes of 19 U.S.C. 1514.
(2) Because the May 1, 1990, inter-office memorandum may
not be considered a protest, the issue of whether the hand-
written response by Customs on the inter-office memorandum may be
considered a denial of the protest is not addressed.
(3) Because the May 1, 1990, inter-office memorandum may
not be considered a protest, the issue of the proper
classification of the knitting machines which are the subject of
this protest is not addressed.
The protest is DENIED. A copy of this decision should be
attached to the Form 19 and provided to the protestant as part of
the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division