HQ 225118: Same condition drawback; Proof of Exportation

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 225118
                         April 18, 1994

                                   
DRA-4 CO:R:C:E  225118 DHS                                       

CATEGORY:  Drawback

Mr. Sunder Sachdev
Allied India International
Allied House, Vasant Kunj
New Delhi-110 037 India

RE:  Same condition drawback; Proof of Exportation

Dear Mr. Sachdev:

     This is in response to your letter dated December 20, 1993,
wherein you request information about receiving a refund of
duties paid for imported merchandise, by Allied India
International (hereinafter, Allied India), which was later
allegedly exported from the United States.

FACTS:

     Specific entry and drawback documentation has been provided
to us by the Port Director in Columbus, Ohio, the drawback
liquidator in Chicago and the broker, A. W. Fenton.  From this
documentation, we have ascertained that various Indian carpets,
wearing apparel, handicrafts and jewelry were imported into the
United States on July 28, 1988 and entered on August 4, 1988.  A
Customs Form (CF) 7539 (Drawback Entry Covering Same Condition
Drawback) was filed on August 26, 1988, indicating that a portion
of the originally imported merchandise was to be exported and
drawback in the amount of $1266.01 would be claimed upon proof of
exportation.  The opportunity to examine the merchandise was
waived by Customs on August 30, 1988.  On that same day, the
inspector or warehouse officer signed the CF 7512 (Transportation
Entry and Manifest of Goods Subject to Customs Inspection and
Permit), which was submitted by the broker, indicating that the
merchandise covered by the drawback claim had been delivered to
the carrier, to be transported from the Columbus, Ohio, port to
the District Director in Buffalo, New York.  The final
destination reported on the CF 7512 is Paris, France.  On October
11, 1988, Customs sent a letter to the broker requesting the
export bill of lading or other proof of exportation in order to
complete the drawback claim.  On January 27, 1989, after failing
to receive a reply to the request, Customs denied the drawback
claim.  A CF 29 (Notice of Action) was sent to the broker
informing them of the action taken.  Additionally, a courtesy
notice was sent to Allied India at the mailing address shown on
the drawback claim.  No other response was received with respect
to this claim until your recent communications to our office and
the district office.
ISSUES:

     Has proof of exportation been provided to substantiate the
same condition drawback claim?

     Is a remedy available to the drawback claimant when a timely
protest has not been filed to a denied drawback claim?

LAW AND ANALYSIS:

Has proof of exportation been provided to substantiate the same
condition drawback claim?

     No refund or drawback of liquidated duty is allowed because
of the exportation of any merchandise after its release from the
custody of the government except "when articles are exported with
respect to which a drawback of duties is expressly provided for
by law; ...." (19 U.S.C. 1558)

     Section 313(j) of the Tariff Act of 1930, as amended (19
U.S.C. 1313(j)) and section 191.8(b) of the Customs Regulations
(19 CFR 191.8(b)) provide for a refund of 99% of the duties paid
on imported merchandise exported in the same condition as when
imported and not used within the United States before such
exportation.

     Section 191.71(e) of the Customs Regulations (19 CFR
191.71(e)) states that drawback shall be determined when the
drawback claim has been completed by the filing of the entry and
other necessary documents, and exportation of the articles has
been established. 

     The Customs Service determined that the claim lacked
sufficient evidence of exportation and requested further
documentation from the broker.  When the evidence was not
submitted the claim was denied.  The bulletin notice of that
denial was published on January 27, 1989.  Because of the failure
to provide evidence of exportation timely the denial of drawback
appears to have been proper.

Is a remedy available to the drawback claimant when a timely
protest has not been filed to a denied drawback claim?

     Pursuant to 19 U.S.C. 1514, decisions of Customs officers as
to the refusal to pay a claim for drawback 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) within
ninety days after but not before notice of liquidation or
reliquidation.  The protest must set 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.  
     Based upon the information provided, Allied India did not
file a protest within 90 days of the liquidation date (January
27, 1989).  The denial of the drawback claim is, therefore,
final.
 
HOLDING:

     Based upon the foregoing, Allied India failed to complete
the drawback claim by filing with the Customs Service proof of
exportation; thereby, resulting in a denial of the drawback
claim.    
     
     Additionally, Allied India has exhausted its remedies since
they did not file a timely protest in accordance with 19 U.S.C.
1514. 


                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division