DRA-2-01-RR:CR:DR 227603 CK
Port Director of Customs
U.S. Customs Service
Houston Drawback Center
2350 Sam Houston Pkwy, Ste. 900
Houston, Texas 77032
RE: Application for further review of Protest No. 5301-97-100166; 19 C.F.R. 191.141;
19 C.F.R. 191.52; 19 U.S.C. 1313 (j)(1); Unused merchandise
drawback; C.S.D. 82-38;
HQ 222431; HQ 227421
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:
According to the documentation in the file, Capro, Inc.
(Protestant) filed numerous claims for unused merchandise
drawback under 19 U.S.C. 1313 (j) for cable. The subject of
the protest is the denial of drawback for the following seven
entries, which were timely filed:
Entry Number Drawback entry date Liquidation Date
027-xxxx471-x 04/26/95 12/20/96
027-xxxx623-x 01/03/96 12/20/96
027-xxxx834-x 01/03/96 12/20/96
027-xxxx893-x 09/07/95 12/20/96
027-xxxx034-x 09/08/95 12/20/96
027-xxxx644-x 03/02/96 12/20/96
027-xxxx435-x 03/02/95 12/20/96
Drawback was denied on the grounds of failure to present
landing certificates that reflect the goods were actually
exported. Protestant on the CF 19 admits that the original
pedimentos filed with their claims for drawback erroneously show
different dimensions than merchandise landed in Mexico.
Entry 027-xxxx471-x
Importing 40 reels, 5040 kgs. of cable, JP part # 10-3064, with a value of
$130,278.00. Exporting 4 reels, 508 kgs. of cable, JP part # 10-3062, with a value of $13,027.80. The CF 7539 also states an
import date of 01/07/94, entry number 601-xxxxxxx-3, and a
drawback entry date of 04/26/95, by Capro, Inc. The attached
invoice by Apollo Corp. states the manufacturer of record is
Chrysanthemum Co., Ltd, of Japan. The invoice lists 40 reels,
500,000 meters of Capro Parts no.10-3064, automobile parts for
window regulator, which is 1.5 mm: 1x19+8x7 "GT," cable. The CF
7501 with an entry date of 01/26/94, lists 40 reels, 5600 kgs. of
ROPES, CBLS, CRDG, OTH:OTH, GALVAN-- HTSUS 7312.10.9030, with a
4% duty rate. As proof of export is pedimento number 1200-5006074, dated, 04/26/95 listing on line 4; CARRETES DE CABLE
GALVANIZED, MEDIDAS: 1.5 mm. 1x9+8x9, with a value of $16,398.00.
The pedimento does not list a part number, number of reels,
nor the kgs. of imported cable. Additionally, the dimensions of
the cable listed on the pedimento are different from the
dimensions listed on the entry documents, purchase invoice, and
drawback claim form.
Entry 027-xxxx623-x
Importing 24 reels, 3048 kgs. of cable, JP part # 10-3064, with a value of $81,862.00. Exporting 22 reels, 2794 kgs.
of cable, JP part # 10-3064, with a value of $75,040.00. The CF
7539 also states an import date of 06/06/94, entry number 601-xxxxxx-8, and a drawback entry date of 12/22/95, by Capro, Inc.
Attached is a CF 7501, with an import date of 06/06/94, lists as
merchandise 60 reels, 7620 kgs. of ROPES, CBLS, CRDG, OTH: OTH,
GALVAN-- HTSUS 7312.10.9030, with a 4% duty rate. Also attached
is an invoice from Apollo Corp., dated 04/27/94, listing 24
reels, 300,00 meters of Capro Parts no.10-3064, automobile parts
for window regulator, which is 1.5 mm: 1x19+8x7 "GT," cable.
Also listed are 36 reels, 450,000 meters of Capro Parts No. 10-3062, automobile parts for window regulator, with is 1.5 mm.
1x19+8x7 "GO," cable. As proof of export pedimento 1200-5022114
is attached, listing 12/18/95 as the entry date. Line number 12
of the pedimento states CABLE GALVANIZED C/CAPA D/ESTA%0 MEDIDAS
EN CARRETES, DIFERENTES, with a value of $4,432.00.
The pedimento in this case does not list any cable
dimensions, part numbers, number of reels, nor the kgs. of
imported cable. Additionally, the difference in value is
enormous, comparing an export worth $75,040.00 to the import into
Mexico of $4,432.00.
Entry 027-xxxx834-x
Importing 56 reels, 7239 kgs. of cable, JP part # 10-3064, with a value of $187,916.19. Exporting 8 reels, 1034 kgs.
of cable, JP part # 10-3064, with a value of $26,845.14. The CF
7539 also states an import date of 03/18/94, entry number 601-xxxxxxx-9, and a drawback entry date of 01/02/96, by Capro. Inc.
Attached is an invoice from Apollo Corp., dated 03/02/94, listing
56 reels, 700,000 meters, of Capro Parts no.10-3064, automobile
parts for window regulator, which is 1.5 mm: 1x19+8x7 "GT,"
cable. Also listed are 28 reels, 350,000 meters of Capro Parts
No. 10-3062, automobile parts for window regulator, with is 1.5
mm. 1x19+8x7 "GO," cable. Attached is a CF 7501, with an import
date of 03/31/94, listing as merchandise 84 reels, 10668 kgs. of
ROPES, CBLS, CRDG, OTH: OTH, GALVAN-- HTSUS 7312.10.9030, with a
4% duty rate. As proof of export pedimento 1200-6000073 is
attached listing 01/02/96 as the entry date. Lines 2 and 20 of
the pedimento state CARRETES D/CABLE GALVANIZED C/CAPA D/ESTA%O,
DIFERENTES MEDI, with a value of $1,231,446.00 and $95.00,
respectively. Line 3 of the pedimento states CABLE GALVANIZED EN
CARRETES MED: 1.8 mm. A 1.5 mm 1x9+8x9, with a value of
$112,282.00. Line 19 of the pedimento states CABLE D/ACERO
GALVANIZED Y TEMPLA DO P/ENS., DIFERENTES MEDI-, valued at
$73,100.00.
The pedimento does not list a part number, number of reels,
nor the kgs. of imported cable. Additionally, the dimensions of
the cable listed on the pedimento are different from the
dimensions listed on the entry documents, purchase invoice, and
drawback claim form. Furthermore, three lines of cable listing
do not list any cable dimensions at all. Finally, while there
are four lines of cables listed on the pedimento, none of these
lines match the stated export value of $26,845.14 on the CF 7539,
nor is it possible to match the exported cable with the pedimento
lines, since either no dimensions are given, or they are
different dimensions.
Entry 027-xxxx893-x
Importing 56 reels, 7,239 kgs. of cable, JP part # 10-3064, with a value of $187,916.19. Exporting 8 reels, 1,034 kgs.
of cable, JP part# 10-3064, with a value of $26,845.17. The CF
7539 also states an import date of 03/18/94, a drawback entry
date of 09/07/95, and the entry number 601-xxxxxx-9, by Capro,
Inc. Attached are copies of the same CF 7501 and invoice, that
are attached to entry 027-xxxx834-x: an invoice from Apollo
Corp., dated 03/02/94, listing 56 reels, 700,000 meters, of Capro
Parts no.10-3064, automobile parts for window regulator, which
is 1.5 mm: 1x19+8x7 "GT," cable, and 28 reels, 350,000 meters of
Capro Parts No. 10-3062, automobile parts for window regulator,
with is 1.5 mm. 1x19+8x7 "GO," cable. Also duplicated is the CF
7501, with an import date of 03/31/94, listing as merchandise 84
reels, 10668 kgs. of ROPES, CBLS, CRDG, OTH: OTH, GALVAN-- HTSUS
7312.10.9030, with a 4% duty rate. The pedimento offered as
proof of export has an import date of 09/05/95, and lists on line
19, CARRETES DE CABLE GALVANIZED, MEDIDAS: 1.5 mm. 1x19+8x9,
valued at $31,765.00.
The pedimento does not list a part number, number of reels,
nor the kgs. of imported cable. Furthermore, the dimensions of
the cable listed on the pedimento are different from the
dimensions listed on the entry documents, purchase invoice, and
drawback claim form
Entry 027-xxxx034-x
Importing 68 reels, 8,636 kgs. of cable, JP part # 10-3064, valued at $233,031.41. Exporting 32 reels, 4,064 kgs. of
cable, JP part # 10-3064, valued at $109,661.84. The CF 7539
also states a 07/28/94 date of importation, entry number 601-xxxxxxx-5, and drawback entry date 09/18/95, by Capro, Inc.
Attached is a CF 7501, import date of 07/28/94, listing as
merchandise 104 reels, 13208 kgs. of ROPES, CBLS, CRDG, OTH: OTH,
GALVAN-- HTSUS 7312.10.9030, with a 4% duty rate. Also attached
is an invoice from Apollo Corp. dated 06/28/94, listing as
merchandise, 68 reels, 850,000 meters of Capro Parts no. 10-3064,
automobile parts for window regulator, which is 1.5 mm. 1x19+8x7
"GT," cable. Also listed are 36 reels, 450,000 meters of Capro
Parts no. 10-3062, automobile parts for window regulator, which
is 1.5 mm. 1x19+8x7 "GO," cable. The attached pedimento, offered
as proof of export, is number 1200-5016472, with an entry date
of 10/02/95, listing on line 7, CARRETES D/CABLE GALVANIZADO
C/CAPA D/ESTANO, 1.5 mm 1x9+8x9, valued at $107,840.00. Also
listed on line 8 is CARRETES DE CABLE GALVANIZADO, MEDIDAS: 1.5
mm. 1x9+8x9, valued at $227,280.00.
The pedimento does not list a part number, number of reels,
nor the kgs. of imported cable. Additionally, the dimensions of
the cable listed on the two lines of the pedimento are different
from the dimensions listed on the entry documents, purchase
invoice, and drawback claim form.
Entry 027-xxxx644-x
Importing 40 reels, 5,080 kgs. of cable, JP part # 10-3062, with a value of $269,711.00. Exporting 4 reels, 508 kgs.
of cable, JP part # 10-3062, with a value of $13,485.56. The CF
7539 also states a 12/15/94 date of importation, entry number
601-xxxxxxx-7, and a drawback entry date of 02/28/96, by Capro,
Inc. Attached is a CF 7501 which states an import date of
12/31/94, listing as merchandise 80 reels, 10160 kgs. of ROPES,
CBLS, CRDG, OTH: OTH, GALVAN-- HTSUS 7312.10.9030, with a 4% duty
rate. Also attached is an invoice from Apollo Corp., dated
12/12/94, listing 40 reels, 500,000 meters of GT Cable Capro
Parts No. 10-3064, automobile parts for window regulator, whith
is 1.5 mm. 1x19+8x7 "GT," cable. Also listed are 40 reels,
500,000 meters of GO Cable Capro Parts No.
10-3062, automobile parts for window regulator, which is 1.5 mm.
1x19+8X7 "GO," cable. The attached pedimento, offered as proof
of export, is number 1200-6003752, with an entry date of
02/27/96, listing on line 8, CARRETES D/CABLE GALVANIZADO C/CAPA
DE ESTA%O, DIFERENTES, valued at $13,480.00.
The pedimento in this case does not list any cable
dimensions, part numbers, number of reels, nor the kgs. of
imported cable.
Entry 027-xxxx435-x
Importing 40 reels, 5,420 kgs. of cable, JP part # 10-3064, with a value of $134,650.92 (described as ROPES, CBLS,
CRDG, OTH:OTH, GALVAN), and 36 reels, 4,878 kgs. of cable, JP
part # 10-3062, with a value of $114,401.39 (described as ROPES,
CBLS, CRDG, OTH:OTH, GALVAN). Exporting 24 reels, 3252 kgs. of
cable, JP part #10-3064, valued at $80,790.48. Also stated on
the CF 7539 was the import date of 04/28/94, the import entry no.
601-xxxxxxx-7, and the drawback entry date 03/01/95, by Capro.
Inc. Attached is a CF 7501, with an import date of 04/28/94,
listing as merchandise, 76 reels, 10298 kgs. of ROPES, CBLS,
CRDG, OTH: OTH, GALVAN-- HTSUS 7312.10.9030, with a 4% duty rate.
Also attached is an invoice from Apollo Corp., dated 03/30/94,
listing 40 reels, 500,000 meters of Capro Parts No. 10-3064,
automobile parts for window regulator, 1.5 mm. 1x19+8x7 "GT,"
cable. Listed also are 36 reels, 450,000 meters of Capro Parts
No. 10-3062, automobile parts for window regulator, 1.5 mm.
1x19+8x7 "GO," cable. The attached pedimento, offered as proof
of export, is number 1200-5003138, with an entry date of
02/28/95, listing on line 3, CARETTES D/CABLE GALVAN. C/CAPA DE
ESTANO, MED: 1.5 mm. 1x19+8x7, valued at $59,800.00. Listed on
line 4 is CARRETES DE CABLE GALVANIZADO, MEDIDAS: 1.5mm 1x9+8x9,
valued at $37,600.00.
The pedimento in this case does not list a part number,
number of reels, nor the kgs. of imported cable. Additionally,
there are two dimensions of cable listed on the pedimento. One
of the cables, the 1.5 mm. 1x9+8x9, is not listed on any of the
import or export documents. The other cable dimension, 1x19+8x7,
are the dimensions listed on the CF 7539, and invoice documents,
however, no part numbers are listed. It is not possible to tell,
from the information given, what type of cable is being imported
into Mexico. Elsewhere, on all other documents, including the
invoices, CF 7539, packaging slips, and inter-company transfer
slips the part numbers are part of the dimensions. The part
numbers, "GT and GO" appear to be integral to identifying the
cable, yet they are not listed on the pedimento, nor can they be
found on the affidavit supplied by the Materials Control Manager.
Therefore, it is not possible to match the cable imported to the
U.S. to the cable exported and re-imported into Mexico.
The protestant-broker also submitted with the protest an
inter-company invoice prepared by Capro, Inc., dated 02/16/95,
and a packing slip, dated 02/15/95. The packing slip lists Part
No. 10-3064, 1.5 mm. Diameter, 1x19+8x7, GALVANIZED TIN CABLE--
skid number's 3,4, total weight of 2,434 lbs., and 100,000
quantity. It also lists Part No. 10-3062, 1.5 mm. Diameter,
1x19+8x7, GALVANIZED CABLE-- skid number's 5-19, total weight of
18,202 lbs., and 750,000 quantity. Protestant-broker also
submitted a pro-forma invoice prepared by a Mexican importer,
number 95022, dated 02/16/95, listing CARRETES DE CABLE
GALVANIZADO CON CAPA DE ESTANO MEDIDAS: 1.5 mm. 1x19+8x7
(GALVANIZED CABLE TIN), cantidad 750,000, worth $224,250.00, and
CARRETES DE CABLE GALBANIZADO: 1.5 mm. 1x19+8x9 (GALVANIZED
CABLE), cantidad 130,480, worth $31,791.00. Another invoice,
number 95096, dated 08/09/95, lists CARRETES DE CABLE GALVANIZADO
MEDIDAS: 1.5 mm. 1x9+8x9 (GALVANIZED CABLE), cantidad 111,809,
worth $31,765.00. Two pedimentos were also submitted with this
protest. Pedimento 1200-5002380, with entry date 02/16/95, lists
on line 2, CARRETES D/CABLE GALVANIZADO C/CAPA D/ESTANO, 1.5 mm.
1x19+8x7, valued at $224,250.00, and on line 3, CARRETES DE CABLE
GALVANIZADO, MEDIDAS: 1.5 mm. 1x9+8x9, valued at $31,791.00. The
second pedimento is number 1200-5014509, with entry date
09/05/95, listing on line 19, CARRETES DE GALVANIZADO, MEDIDAS:
1.5 mm. 1x19+8x9, valued at $31,765.00. Furthermore, the
protestant-broker also submitted another copy of CF 7539 for
drawback entry number 027-2506893-2, drawback entry date
09/07/95, importing 56 reels, 7239 kgs. of cable, JP part # 10-3064, with a value of $187,916.19. Exporting 8 reels, 1034 kgs.
of cable, JP part# 10-3064, with a value of $26,845.17.-- entry
number 601-xxxxxxx-9.
Finally, an affidavit was submitted by the Materials Control
Manager of Capro de Mexico, dated 05/12/97, stating the following
shipments were received by the Matamoros plant:
DATE
RECEIVED
PART
NUMBER
DIMEN-SIONS
NUMBER OF
COILS
WEIGHT
KILOS
ENTRY
NUMBER
04/26/95
10-3064
1.5 MM
1X19+8X7
4
508
027-xxxx471-x
01/03/96
10-3064
1.5 MM
1X19+8X7
22
2,794
027-xxxx623-x
01/03/96
10-3064
1.5 MM
1X19+8X7
8
1,034
027-xxxx834-x
09/07/95
10-3064
1.5 MM
1X19+8X7
8
1,034
027-xxxx893-x
09/08/95
10-3064
1.5 MM
1X19+8X7
32
4,064
027-xxxx034-x
03/02/96
10-3062
1.5 MM
1X19+8X7
4
508
027-xxxx644-x
03/02/96
10-3064
1.5 MM
1X19+8X7
24
3,252
027-xxxx435-x
However detailed the Materials Control Manager's affidavit
may be, it does not support that the cables that were imported
from Japan into the U.S., were the same cables exported and re-imported into Mexico, or that the cables were commercially
interchangeable so as to qualify under 19 U.S.C. 1313 (j) (2).
The paper trail Protestant has attempted to set forth, has failed
to carry the burden of proof. The documentation provided has
shown a great deal of inconsistencies. Dates are inconsistent,
weights and cable dimensions are either inconsistent or
nonexistent, and the amount of cable imported into Mexico is not
provided at all. The pedimentos and the Manager's affidavit, do
not in any place state the full part number of the cable
received, specifically whether the cable was "GO" or "GT." The
part numbers "GO" and "GT" appear to be integral to record
keeping and identification, yet they are not used at all once the
cable leaves the U.S., thereby, making such identification
impossible. Additionallly, no understandable, if not feasable
explanation or evidence was submitted for each entry explaining
the discrepencies in cable diameter, and how to resolve the fact
that cable diameters are not even provided in various pedimentos.
Furthermore, the affidavit provided only raises serious questions
of the timing between the dates the cable was imported into
Mexico, dates received in the Mexican plant, and the dates of
drawback entry. There is at least one discrepency that is over a
year, see entry 027-xxxx435-x.
ISSUE:
Whether unused merchandise drawback may be denied for filing
to match the identity, quantity, and value of the merchandise
imported and exported.
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 all seven entries was denied on 12/20/96.
This protest was timely filed against the denial of drawback for
the subject entries on 03/19/97, since the 90-day statutory and
regulatory filing deadline was met under 19 U.S.C. 1514 and
19 C.F.R. Part 174.
Furthermore, we believe that the issues raised in this
protest have already been decided in HQ 227421. We find that the
discrepencies in this protest are identical to the discrepencies
found in that ruling. Therefore, we will rely on the law and
analysis used in HQ 227421, in order to DENY this protest.
Please find enclosed a copy of HQ 227421, in order to understand
how we decided that case, and how that case raises identical
issues and facts, which in turn, decide the present protest.
HOLDING:
In view of the fact that Protestant has failed to provide
matching pedimentos for the cables exported from the U.S., and
these facts and issues have already been decided in HQ 227421,
this protest is DENIED.
Consistent with the decision set forth above, you are hereby
directed to deny the subject protest. 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 the decision. Sixty days from the date of the decision
of the Office of Regulations and Rulings will take steps to make
the decision available to customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division