HQ 223516: Application for further review of Protest No. 3901-91- 100729; 19 U.S.C. 1313(j); 19 CFR 191.141;

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 223516

                        January 27, 1992

DRA-4-CO:R:C:E 223516 CB

CATEGORY:  Entry/Drawback

Chief, NCR Drawback Branch
U.S. Customs Service
North Central Region
Suite 402
610 S. Canal Street
Chicago, ILL 60607

RE:  Application for further review of Protest No. 3901-91-
     100729; 19 U.S.C. 1313(j); 19 CFR 191.141; 

Dear Sir:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the points raised and our
decision follows.

FACTS:

     According to protestant, 950 cases of cigarettes were
imported between March 26, 1990 and April 30, 1990.  On January
14, 1991, protestant submitted a Customs Form (CF) 3499 to notify
Customs of its intention to destroy the imported cigarettes under
Customs supervision and with the benefit of drawback.  The CF
3499 was certified by a Supervisor of Customs Inspection.  The
cigarettes were destroyed on January 22, 1991 under the
supervision of a Customs Inspector.  The inspector witnessed the
destruction and checked box 30 on the Customs Form (CF) 7539
which states, "I have examined the merchandise and found it to be
the same merchandise described above, in the same condition as
imported or changed in condition as allowable by law."

     The Customs Service has disallowed the same condition
drawback claim on the grounds that the cigarettes were "stale and
old" and, thus, not in the same condition as when imported.  This
conclusion regarding the condition of the cigarettes was based on
a telephone conversation with protestant's traffic manager. 
During the telephone conversation the employee stated that the
cigarettes were destroyed because they were old and stale.  

ISSUE:

     Whether the written evidence presented is sufficient for
recovery of same condition drawback under 19 U.S.C. 1313(j)?
                               -2-

LAW AND ANALYSIS:

     Section 313(j), of the Tariff Act of 1930, as amended (19
U.S.C. 1313(j)), generally provides for drawback on imported duty
paid merchandise exported in the same condition as when imported,
or destroyed under Customs supervision, and not used within the
United States prior to such exportation or destruction.  The
Customs Regulations issued under authority of this provision are
found in 19 CFR 191.141.

     Under 19 CFR 191.141(f), an exporter who desires to destroy
merchandise with benefit of drawback under 19 U.S.C. 1313(j) is
required to file a completed CF 7539 (Drawback Entry Covering
Same Condition Merchandise).  Under the regulation, the exporter-
claimant shall notify Customs of the time and place of
destruction, by filing a CF 3499 with a CF 7539 at the location
wherein the destruction is to occur at least 7 working days prior
to the intended date of destruction.  

     In C.S.D. 83-26 the Customs Service indicated that if
deterioration occurs which significantly changes the condition of
the imported merchandise, same condition drawback law is
inapplicable.  Prima facie evidence to show that the merchandise
was in the same condition as imported may consist of the
completed CF 7539, marked and signed by the appropriate Customs
officer to indicate whether the merchandise was in the same
condition prior to destruction.  In the instant case, protestant
has provided the required prima facie evidence.  On the other
hand, Customs denial of the drawback claim is based on hearsay
evidence.  There is no written statement, in the record, from the
traffic manager stating that the cigarettes were stale.  Nor, is
there any written testimony from the Customs inspector to clarify
or contradict why he certified that he found the cigarettes to be
in the same condition when they were imported on the CF 7539 at
the time of destruction.

     In the instant case, the record shows that protestant
complied with the regulations.  The Customs Service was given the
opportunity to examine the merchandise prior to exportation to
determine its condition.  The Customs inspector found the
cigarettes to be in the same condition as imported or changed in
condition as allowed by law.  Compliance with the drawback
regulations is a mandatory condition precedent to securing
drawback.  See United States v. Lockheed Petroleum Services,
Ltd., 1 Fed. Cir. (T) 63, 709 F.2d 1472 (1983), and cases cited
therein.  In view of the fact that the substantive evidence
required to establish the condition of the cigarettes has been
submitted and accepted by Customs, we conclude that protestant is
entitled to drawback on the subject claim.
                               -3-


HOLDING:

     The evidence with regard to the drawback entries in which
Customs examined the merchandise for which drawback is claimed
and found it to be the described merchandise in the same
condition as imported or changed in condition as allowed by law
is sufficient for recovery of same condition drawback under 19
U.S.C. 1313(j)(1).  Therefore, this protest should be allowed in
full.

     A copy of this decision should be attached to the CF 19,
Notice of Action, to satisfy the notice requirement of section
174.30(a), Customs Regulations.


                                   Sincerely,





                                   John A. Durant, Director
                                   Commercial Rulings Division