CLA-2 RR:TC:MM 959281 PH
Port Director of Customs
#1 La Puntilla
San Juan, Puerto Rico 00901
RE: Protest 4909-96-100015; Roofing tiles and other ceramic
constructional goods; Unglazed ceramic flags and paving,
hearth or wall tiles; Refractory articles; Additional U.S.
Note 2, Chapter 69; 6902.90.10; 6905.10.00; 6907.90.00;
Blanket surety protest; Untimely protest; 19 U.S.C.
1514(c)(3)
Dear Port Director:
This is our decision on Protest 4909-96-100015, filed
against the demand on the protestant-surety for payment of
duties, as rate-advanced and liquidated, for a January 20, 1995,
entry of certain unglazed ceramic tile. The entry for which the
demand was made was liquidated on August 4, 1995. The date of
the demand on the surety, according to the protestant and
documents in the file, was November 2, 1995. The protest was
filed on February 1, 1996. According to the file and Customs
records, the importer filed a request for reliquidation of the
entry under 19 U.S.C. 1520(c)(1) which was denied on December 21,
1995. According to Customs records, the bill for which the
protested demand on surety was made has been paid.
The scope of review in this protest is on the administrative
record, and the protestant has not presented any evidence in
support of its bald assertions. The Customs Service will not
grant further review of a blanket protest. The protestant must
comply with the statutory and regulatory requirements. Under 19
U.S.C. 1514(c)(1), a protest of a decision must set forth
distinctly and specifically each decision as to which protest is
made. See generally, United States v. Parksmith Corp., 62 CCPA
76, 514 F. 2d 1052, C.A.D. 1149 (1975); American Commerce Co. v.
United States, 42 Cust. Ct. 98, 173 F. Supp. 812, C.D. 2072
(1959); United States v. E. H. Bailey & Co., 32 CCPA 89, C.A.D.
291 (1944).
In this protest, the protestant files a "protective protest"
against Customs decision to "reclassify and/or reappraise the
subject entry", "deny drawback", "assess antidumping or
countervailing duties, marking duties, vessel repair duties, or
any other special duties, charges or exaction, including but not
limited to interest." The protest also protests "the untimely
liquidation or reliquidation and/or unlawful suspension or
extension of liquidation as notification was inadequately issued"
and "any clerical error or mistake of fact made on the subject
entry." The protestant "protests the liability of the subject
liquidations [on the basis that] [s]urety presently has no
information indicating that [the protestant surety] is in fact
the surety on the bond(s) used to secure the merchandise in
question."
The Customs Regulations (19 CFR 174.13(a)(6)) require that a
protest set forth "[t]he nature of, and justification for the
objection set forth distinctly and specifically with respect to
each category, payment, claim, decision, or refusal." The
Customs Service has and will continue to fully consider any
relevant allegation in a protest supported by competent evidence.
However, in acting on a protest, Customs cannot and will not
assume facts that are not presented (e.g., an unsubstantiated
claim that the surety-protestant was not surety on the bond(s)
used to secure the merchandise in question (in this regard, we
note that Customs records show the surety-protestant as surety on
the bond used to secure the merchandise in question)).
Furthermore, the protest in this case was untimely. Under
19 U.S.C. 1514(c)(3), "[a] protest by a surety which has an
unsatisfied legal claim under its bond may be filed within 90
days from the date of mailing of notice of demand for payment
against its bond." In this case, the date of the demand was
November 2, 1995. The protest against the demand was filed on
February 1, 1996. Thus, the protest was filed on the 91st day
after the date of the demand (28 days in November, 31 days in
December, 31 days in January, plus 1 day in February). For an
example of the judicial treatment of a protest filed 1 day after
the 90-day period for filing a protest, see Penrod Drilling Co.
v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing
dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed.
Cir. (T) 60, 925 F. 2d 406 (1991).
For your information, we are briefly considering the
classification of the merchandise under consideration in this
case. The importer's claimed classification is under subheading
6902.90.10, HTSUS. The rate-advanced and liquidated
classification is under subheadings 6905.10.00, HTSUS (for the
Coppi style, a roofing tile), and 6907.90.00, HTSUS (for the
Terracotte, Stair Skirting, and Scamillo Stair style, flooring
tiles). The subheadings under consideration are as follows:
6902.90.10: [r]efractory bricks, blocks, tiles and similar refractory ceramic constructional
goods, other than those of siliceous fossil
meals or similar siliceous earths: ... [o]ther:
[b]ricks.
Goods classifiable under this provision receive duty-free
treatment.
6905.10.00: [r]oofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods: [r]oofing tiles.
The 1995 general, column one rate of duty for goods
classifiable under this provision is 13.5 percent ad
valorem.
6907.90.00: Unglazed ceramic flags and paving, hearth or wall tiles; unglazed ceramic mosaic cubes and
the like, whether or not on a backing: ...
[o]ther.
The 1995 general, column one rate of duty for goods
classifiable under this provision is 19 percent ad valorem.
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...." For a ceramic article
to be classified under either headings 6902 or 6903, it must meet
the definition of refractory as found in Additional U.S. Note 2,
Chapter 69, HTSUS, which states that:
For the purposes of headings 6902 and 6903, the term
"refractory" is applied to articles which have a pyrometric
cone equivalent of at least 1500 C when heated to 60 C per
hour (pyrometric cone 18). Refractory articles have special
properties of strength and resistance to thermal shock and
may also have, depending upon the particular uses for which
designed, other special properties such as resistance to
abrasion and corrosion.
In this case, a sample of each of the styles was analyzed by
Customs. Each sample was found "... not [to] meet the
characteristics of refractory material" (Customs Laboratory
Reports 9-96-20182-001, 9-96-20183-001, 9-96-20184-001, and 9-96-20185-001, each dated January 16, 1996. On the basis of
Additional U.S. Note 2, Chapter 69, HTSUS, the tiles under
consideration are precluded from classification under heading
6902, HTSUS. The Coppi style tiles are classifiable under
subheading 6905.10.00, HTSUS, as roofing tiles, and the
Terracotte, Stair Skirting, and Scamillo Stair style tiles are
classifiable under subheading 6907.90.00, HTSUS, as other
unglazed ceramic flags and paving, hearth or wall tiles.
Therefore, even if the protest had been timely and had met
the requirements in 19 CFR 174.13(a)(6) by setting forth "[t]he
nature of, and justification for the objection ... distinctly and
specifically with respect to each category, payment, claim,
decision, or refusal[,]" the protest would have been denied on
substantive grounds, as explained above.
Based on the foregoing discussion, this protest should be
DENIED IN FULL (please note that if, as indicated by Customs
records, duties and other charges for the entry under
consideration have been paid, this denial of the protest will
have no effect).
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should 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 of the decision.
Sixty days from the date of the decision 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, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director,
Tariff Classification Appeals Division