HQ 223072: Application for Further Review of Protest No. 5201-9-000417;19 C.F.R. 191.61, compliance of drawback requirements.

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 223072

                         August 12, 1991


DRA-1-01-CO:R:C:E  223072  SR

CATEGORY:  Entry/Drawback

District Director of Customs
Southeast Region
909 S.E. First Avenue
Miami, Florida 33131-2595

RE:  Application for Further Review of Protest No. 5201-9-000417;
19 C.F.R. 191.61, compliance of drawback requirements.

Dear Sir:

     The above-referenced protest was forwarded to our office on
Application for Further Review of Protest No. 5201-9-000417,
dated October 20, 1989.  We have considered the facts and the
issue raised; our decision follows.

FACTS:

     Tobacco was imported in 1978, 1979 and 1980.  The tobacco
was made into cigars and exported in 1983.  Drawback entry was
made in 1984, 1985, and 1986 for which accelerated payment was
requested and received.  After three years the entries were
considered by Customs to be abandoned.  In October of 1989, the
importer filed a protest and at that time also filed the
Certificates of Delivery (CF 7543) and a list of the designated
entries.  The protestant states that their Broker's records
indicate that the Certificates of Delivery were "apparently"
received and the attachments indicating the entry designations
were prepared within the three year period.  The protestant also
states that they were never notified that the entries were
incomplete and the claims might possibly have been lost by
Customs.

ISSUE:

     Whether the claims at issue can be considered as abandoned
claims.

LAW AND ANALYSIS:

          19 C.F.R. 191.61 provides the filing requirements for  -2-


the completion of drawback claims.  It reads as follows:

          A drawback entry and all documents necessary to
     complete a drawback claim, including those issued by one
     Customs officer to another, shall be filed or applied for,
     as applicable, within 3 years after the date of exportation
     of the articles on which drawback is claimed, . . . Claims
     not completed within the 3-year period shall be considered
     abandoned.  No extension will be granted unless it is
     established that a Customs officer was responsible for the
     untimely filing.

     The protestant states that the broker has found indications
in his records that the documents necessary to complete a
drawback claim may have been filed on time.  The protestant can
not provide evidence to show timely completion of the claim.  The
protestant cannot show that the necessary documents were ever
sent to Customs.  There was no action taken by Customs that would
have prohibited the timely filing of this claim.  

     It is well established that the burden is on the importer to
show full compliance with the drawback statute and regulations
and failing such proof no drawback can be allowed.  Albers Bros.
Milling Co. v. U.S., 16 Ct. Cust. App. 237, (1928); Ciba Company,
Inc. v. U.S., 27 CUST. CT. 144, C.D. 1359 (1951); Swift & Co. v.
United States, 10 Cust. Ct. 198, C.D. 753 (1943); see also C.S.D.
84-58.

HOLDING:

     The drawback claimant failed to present evidence to support
its assertion of compliance with 19 C.F.R. 191.61.  No action on
the part of a Customs officer prohibited the timely filing of the
claim.  Because the claims were not timely filed the claim for
drawback is considered abandoned.

     Accordingly you are directed to deny the protest.  A copy of
this decision should be furnished to the protestant in order to
satisfy the notice requirement of section 174.30(a), Customs
Regulations.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division