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HQ 083879


July 2, 1990

CLA-2:CO:R:C:G 083879 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 700.57

District Director of Customs
Suite 625
7911 Forsythe Blvd.
St. Louis, Missouri 63105

RE: Decision on Application for Further Review of Protest No. 4501-8-000068.

Dear Sir:

This protest was filed against your decision in the liquidation on April 1, 1988, of entry number 84-107526-5, dated May, 8, 1984, covering a shipment of boots manufactured in Korea.

FACTS:

The merchandise involved is a man's eyelet bean boot, imported by Nelson Weather-Rite, Inc., importer's style number 4095. The importer filed an invoice which claimed the weight makeup of the boot to be 37 percent fiber, 60 percent rubber and 3 percent plastic, and stated the classification to be under item 700.35, TSUS. Although no weight for leather was listed, the importer claimed that the boot upper has a surface area of over 60 percent leather. For this reason Customs rejected the invoice as incorrect, and bonded the importer for a corrected invoice. On October 24, 1984, the importer's broker submitted a new footwear invoice that indicated that the boots were 37 percent by weight of leather and possessed an exterior surface area of 60 percent leather. On June 1, 1984, Nelson Weather-Rite, Inc. entered another shipment of the same style boot, from the same manufacturer, with the same information as the resubmitted invoice dated October 24, 1984, of 37 percent by weight of leather with 60 percent of the exterior surface area of the upper of leather.

ISSUE:

Whether the boot at issue is classifiable under item 700.57, TSUS, or item 700.35, TSUS.

LAW AND ANALYSIS:

Item 700.57, TSUS, provides for footwear which is over 50 percent by weight of rubber or plastics or over 50 percent by weight of fibers and rubber or plastics with at least 10 percent by weight being rubber or plastics, other footwear (except footwear having uppers of which over 50 percent of the exterior surface area is leather), other hunting boots, galoshes, rainwear, and other footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease, or chemicals or cold or inclement weather.

The importer claims that the footwear at issue is over 50 percent of leather and therefore classifiable under item 700.35, TSUS, which provides for footwear of leather, for men, youths, and boys.

The sample from the shipment of June 1, 1984, that was tested by the Customs laboratory showed the exterior surface area of the upper of the boot to be 48.1 percent leather. Because the upper of this boot had under 50 percent surface area of leather, it was classifiable under item 700.57, TSUS. The shipment from which the boot was sampled was from the same manufacturer, the same style number, cost the same, and had the same information on the invoice as the boots in question. The second shipment was imported a very short time after the first. It appears safe to assume that the merchandise was the same for both shipments. Customs does not ordinarily sample every shipment of the same merchandise. For most types of merchandise, Customs will only periodically sample shipments of the same merchandise, in order to expedite the importing process.

The importer lists four court cases which he claims show that Customs must accept his invoice as correct. United States v. Bloomingdale Bros. & Co., 10 Ct. Cust. Appls. 149, T.D. 38400 (1920), held that the size of the sample that Customs tested was insufficient to determine the yarn count for the material at issue in the case. The method of testing and the results of the
test are not at issue in the current footwear case. The court in Bloomingdale, stated:

Not only is the invoice prima facie evidence of that which it declared, but unimpeached and not mistrusted or discredited, it is the evidence which determines the collector's action as to all imported merchandise which has not been examined.

The invoice at issue is obviously false on its face and therefore is discredited as well as mistrusted. Therefore, it cannot be relied on as prima facie evidence.

None of the other three cases have facts that are relevant to the facts at issue. In J.D. Smith Interocean, Inc. v. United States, 79 Cust. Ct. 99, T.D. 4719 (1977), samples were believed to be taken from the wrong compartment of the ship and were therefore not the same merchandise at all. The sample tested in Hawley & Letzerich v. United States, 19 CCPA 47, T.D. 44893 (1931), were also believed to be a different type of merchandise than the merchandise that was being imported. In Albert F. Maurer Co. v. United States, 61 Cust. Ct. 181, C.D. 3559 (1968), the samples were also found to be taken from an insufficient quantity of material to properly determine the makeup of the goods.

Neither the proper testing nor the identification of the footwear is at issue. The boot that was tested was taken from a shipment from the same manufacturer, with the same model number and price, sold to the same importer, with the same information on the invoice, imported at approximately the same time.

HOLDING:

The sample of the men's eyelet bean boot style number 4095, was found by Customs to have an exterior surface area of the upper of 48.1 percent leather. Therefore, the footwear at issue is classifiable under item 700.57, TSUS.

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

Sincerely,

John Durant, Director

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