DRA-2-01-RR:CR:DR 227604 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. 5301-97-100165; 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; HQ 227603
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 two claims for unused merchandise drawback
under 19 U.S.C. 1313 (j) for cable. According to the CF 19,
Protestant made three entries, one of which was liquidated as
entered, and two which were liquidated without refund. The
subject of this protest is the denial of drawback for the two
following entries, which were timely filed:
Entry Number Drawback Entry Date Liquidation Date
027-xxxx072-x 04/03/95 12/27/96
027-xxxx113-x 04/04/95 12/27/96
Drawback was denied on the grounds of failure to present
landing certificates that reflect goods were actually exported.
Namely in question are the dimensions of cable imported versus
dimensions shown on the landing certificates.
Entry 027-xxxx072-x
The relevant import for this entry is 60 reels, 7,620 kgs.
of cable, JP part # 10-3062, with a value of $191,835.03.
Exporting 28 reels, 3,556 kgs. of JP part # 10-3062, with a value
of $89,523.00. The parts are listed as ROPES, CBLS, CRDG, OTH:
OTH, GALVAN. The
CF 7539 also states an import date of 03/03/95, entry number 601-xxxx166-x, and a drawback entry date of 04/03/95, by Capro, Inc.
Attached is a CF 7501 with the importer as Capro, Inc., import
date of 03/03/95, the country of origin and export is Japan,
importing 141 pkgs, 17,787 kgs., of ROPES, CBLS, CRDG, OTH: OTH,
GALVAN-- HTSUS 7312.10.9030, with a duty rate of 3.6%. Also
attached is an invoice from Apollo Corporation, number AC95-0206
from Japan, dated 02/06/95, the relevant listing being 60 reels,
750,000 meters of GO Cable Capro Parts No. 10-3062, 1.5 mm.
1x19+8x7 "GO," automobile parts for window regulator. Attached,
as proof of export, is pedimento number 1200-5004881, dated
04/12/95 listing on line 2: CARRETES DE CABLE GALVANIZADO CON
CAPA DE ESTANO, *VER OBS.*, with a value of $163,210.00. Stated
in the section titled, OBSERVACIONES: MEDIDAS: 1.5 mm. 1x19+8x7,
Y CARRETES DE CABLE GALVANIZADO, MEDIDAS: 1.5 mm. 1x19+8x9.
The pedimento in this case does not list any part numbers,
the number of reels, nor the kgs. of imported cable.
Additionally, taking the OBSERVACIONES section, to remark that
there were two sizes of cables imported, then we can only account
for the origin of one of them--
1.5 mm. 1x19+8x7. Additionally, Protestant attached to the
pedimento, as proof of export, an export invoice dated 02/10/95,
with entry number 601-xxxx166-x. This attachment shows further
discrepancies, since the date on the export invoice and the date
on the pedimento are not compatible, and the entry number is
clearly different than the entry that it is supposed to evidence.
Entry 027-xxxx113-x
The relevant import for this entry is 40 reels, 5,080 kgs.
of cable, JP part # 10-3064, with a value of $130,741.33.
Exporting 8 reels, 1,016 kgs. of cable, JP part # 10-3064, with a
value of $26,148.24. All parts are listed as ROPES, CBLS, CRDG,
OTH:OTH, GALVAN. The CF 7539 also states an import date of
06/27/94, entry number 601-xxxx516-x, and a drawback entry date
of 04/04/95, by Capro, Inc. Attached is a CF 7501 with the
importer as Capro, Inc., import date of 06/27/94, the country of
origin and export is Japan, importing 92 reels, 11,684 kgs., of
ROPES, CBLS, CRDG, OTH: OTH, GALVAN-- HTSUS 7312.10.9030, with a
duty rate of 4%. Also attached is an invoice from Apollo
Corporation, number AC94-0531 from Japan, dated 03/31/94, the
relevant item being 40 reels, 500,000 meters of GT Cable Capro
Parts No. 10-3064, 1.5 mm. 1x19+8x7 "GT," automobile parts for
window regulator. Attached, as proof of export, is a second copy
of pedimento number 1200-5004881, dated 04/12/95 listing on line
2; CARRETES DE CABLE GALVANIZADO CON CAPA DE ESTANO, *VER OBS.*,
with a value of $163,210.00. Stated in the section titled,
OBSERVACIONES: MEDIDAS: 1.5 mm. 1x19+8x7, Y CARRETES DE CABLE
GALVANIZADO, MEDIDAS: 1.5 mm. 1x19+8x9.
The attached pedimento is a duplicate of the pedimento used
as proof of export for entry number 027-xxxx072-x. The pedimento
does not list any part numbers, the number of reels, nor the kgs.
of imported cable. Additionally, taking the OBSERVACIONES
section, to remark that there were two sizes of cables imported,
then we can only account for the origin of one of them, 1.5 mm.
1x19+8x9.
The Protestant-broker also submitted with the protest an
inter-company packing list prepared by Capro. The ship date is
04/05/95, from Capro, Inc. to Capro De Mexico, listing 100,000 of
part number 10-3064, 1.5 mm. diameter, 1x19+8x7, GALVANIZED TIN
CABLE, skids 11,12, with a total weight of 2,475 lbs. Also on
the list is 500,000 of part number 10-3062, 1.5 mm. diameter,
1x19+8x7, GALVANIZED CABLE, skids 5-10, 13, 16, with a total
weight of 12,175 lbs. Also submitted is a pro-forma invoice
prepared by a Mexican importer, number 95036, shipment date of
04/06/95 listing: CARRETES DE CABLE GALVANIZADO CPM CAPA DE
ESTANA MEDIDAS: 1.5 mm. 1x19+8x7 (GALVANIZED CABLE TIN), 500,000
cantidad, with a total value of $134,800.00. Also listing
CARRETES DE CABLE GALVANIZADO MEDIDAS: 1.5 mm. 1x9+8x9
(GALVANIZED CABLE), 100,000 cantidad, with a total value of
$28,410.00. Protestant also submitted a third copy of pedimento
number 1200-500481, entry date 04/12/95, stating on line 2;
CARRETES DE CABLE GALVANIZADO CON CAPA DE ESTANO, *VER OBS.*,
with a value of $163,210.00. Stated in the section titled,
OBSERVACIONES: MEDIDAS: 1.5 mm. 1x19+8x7, Y CARRETES DE CABLE
GALVANIZADO, MEDIDAS: 1.5 mm. 1x19+8x9.
Additionally, 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
04/06/95
10-3064
1.5 mm.
1x19+8x7
28
3,556
xxxx072x
04/06/95
10-3064
1.5 mm.
1x19+8x7
8
1,016
xxxx113x
While various documents have been submitted to establish an
acceptable paper trail, Protestant's evidence has not been
persuasive. The most glaring discrepancy is, of course, for
entry number 027-xxxx072-x, where documents show 28 reels, 3,556
kgs. of JP part # 10-3062 were exported and drawback claimed,
while the affidavit of the Materials Control Manager states that
28 coils, 3,556 kgs. of JP part # 10-3064 were received on
04/06/95. This discrepancy is basic and fatal in terms of a
persuasive paper trail. Additionally, the credibility and
truthfulness of the affidavit is questionable.
As far as entry number 027-xxxxx113-x is concerned, the
pedimento used to establish the cable imported does not identify
what cable was imported. The pedimento is the same one used to
establish the entry of more than just entry number 027-xxxx113-x,
while not delineating what part of the import belongs to each
entry. Furthermore, the pedimento lists two sizes of cable:
1.5 mm. 1x19+8x7, and 1.5 mm. 1x9+8x9. There is no indication
how much of each cable was entered, and no explanation where the
other sized cable originated. Additionally, for both shipments
to Mexico, neither the pedimento, nor the affidavit state the
full part number of the cable. The part numbers "GT" and "GO"
are used on invoices and packing slips, yet, they are not used at
all for the exportation to Mexico, making it impossible to follow
the exportation of the cable.
ISSUE:
Whether unused merchandise drawback may be denied for
failing 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). Both entries were liquidated on 12/27/96. This protest was
timely filed against the denial of drawback for the subject
entries on 03/25/97, 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 and HQ 227603. We
find that the discrepancies in this protest are also identical to
the discrepancies found and discussed in both of those ruling.
At issue in both of those rulings and the present one is the
weight to be afforded to the evidence presented. Therefore, we
will rely on the law and analysis used in HQ 227421 and cited in
HQ 227603, in order to DENY this protest. Please find enclosed a
copy of HQ 227421, in order to understand how we decided those
cases, and how those cases raise identical issues and problems,
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 and
HQ 227603, 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