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HQ 733906

June 26, 1992

MAR 2-05 CO:R:C:V 733906 RSD


RE: Application for Further Review of Protest Number 10001-9-005071, Dated November 1, 1990, Concerning the country of origin marking of scarves, Marking Duties; False Certification; 19 U.S.C. 1304

Dear Sir:

This is in response to your memorandum dated November 1, 1990, (PRO-2-05-O:C:R JAD), forwarding the application for further review in the above referenced protest.


Vandergrif Forwarding Company, Inc., on behalf of Shilpa Imports, Inc., (Protestant) is challenging the assessment of marking duties in connection with an importation of ladies rayon scarves entered on April 22, 1989.

The record indicates that Customs issued a Notice of Marking/Redelivery (CF 4647) May 2, 1989 because the merchandise was not legally marked. The notice stated that the country of origin marking must appear on a sewn on label instead of a peel off label. The merchandise was released to the importer's premises to be properly marked. On May 12, 1989, the importer certified on the CF 4647 that the merchandise was properly marked and the CF 4647 was returned to Customs.

The record indicates that Customs inspectors arrived at the importer's warehouse on May 15, 1989 to verify the importer's certification. It was discovered that out of a total of 70 cartons, 65 cartons and 180 loose pieces had not been marked as certified. The merchandise was seized under 19 U.S.C. 1595a(c) for violation of 19 U.S.C. 1304, and marking duties were assessed.

Protestant claims that the marking duties were improperly assessed in this case because on May 11, 1989, protestant forwarded through his broker two marked scarves with a letter to Customs stating "kindly confirm if it is okay so all the scarves may be stitched that way. Please note we require one week to stitch labels on the entire quantity." Protestant argues that the marking duties should be canceled because although he submitted the CF 4647 to Customs certifying that the corrective marking had already been accomplished, it was clear from his letter that he was only asking Customs if the proposed marking was acceptable. In imposing marking duties Customs was being unduly harsh and inequitable.

The record indicates that entry was liquidated with 10 percent marking duties on June 30, 1989. The merchandise was released from Custom custody on August 21, 1989, upon payment of $1,768.


Whether the assessment of marking duties is proper in this case?


Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304, provides that, unless excepted, every article of foreign origin imported in to the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. 19 U.S.C. 1304(f) provides that 10 percent marking duties shall be levied, collected and paid if an imported article is not properly marked with the country of origin at the time of importation and such article is not exported, destroyed or properly marked under Customs supervision prior to liquidation. Under this provision, the importer whose goods are found to be not legally marked is afforded three choices. If he chooses not to correct marking deficiencies he must export or destroy the goods under Customs supervision. Otherwise, the goods must be marked in accordance with the requirements of section 1304 and Part 134, Customs Regulations (19 CFR Part 134), such marking to be accomplished under Customs supervision prior to liquidation of the entry.

19 CFR Part 134, implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.51, Customs Regulations (19 CFR 134.51), provides that when articles or containers are found upon examination not to be legally marked, the district director shall notify the importer on Customs Form 4647 to arrange with the district director's office to properly mark the article or container or to return all released articles to Customs custody for marking, exportation or destruction. This section further provides that the identity of the imported article shall be established to the satisfaction of the district director. Section 134.52, Customs Regulations (19 CFR 134.52), allows a district director to accept a certification of marking supported by samples from the importer or actual owner in lieu of marking under Customs supervision if specified conditions are satisfied.

The sole question that must be determined was whether it was appropriate to assess marking duties in this case. In HQ 731775 (November 3, 1988), Customs ruled that two prerequisites must be present in order for it to be proper to assess marking duties under 19 U.S.C. 1304(f). These two prerequisites are:

1. the merchandise was not legally marked at the time of importation, and

2. the merchandise was not subsequently exported, destroyed or marked under Customs supervision prior to liquidation.

Here, by certifying on the CF 4647 that the merchandise had been properly marked, Protestant indicated to Customs that its choice was to mark. In this case, the assessment of marking duties is proper because these two prerequisites were met. Protestant does not dispute that at the time of importation, the merchandise was not legally marked. There is also no evidence in the record to indicate that the merchandise was properly marked under Customs supervision prior to liquidation of the entry. To the contrary, the record indicates that the entry was liquidated on June 30, 1991, with the assessment of the additional 10 percent marking duties, because the scarves had not been marked as certified prior to that time.

The record in this case indicates that Customs constructively seized the merchandise on May 15, 1989, because Shilpa falsely certified that the merchandise was legally marked when portions of the merchandise were not. Although the importer may have prepared a letter indicating that it would take a week to legally mark all the merchandise in the shipment, there is no evidence to show that the letter was ever submitted to Customs. Customs has no record of having received such letter and our records show that the Protestant admitted to Customs officials that the broker told him that the letter was not sent to Customs. Regardless, since the importer had certified on the CF 4647 that the merchandise was legally marked, it was proper for Customs to verify at that time that the merchandise was legally marked. The question of whether it was appropriate for Customs to seize the merchandise is not relevant in determining whether marking duties should be imposed. If the marking duties were properly assessed under 19 U.S.C. 1304(f), they cannot be remitted wholly or in part nor their payment be avoidable for any cause. Consideration of whether it was inequitable or unduly harsh to impose marking duties is also not appropriate.


The assessment of marking duties in this case was proper due to the fact the scarves were not legally marked under Customs supervision prior to liquidation. Accordingly, you are directed to deny the protest in full. A copy of this decision should be attached to the Customs Form 19, and mail to the protestant as part of the notice of action on the protest.


John Durant, Director

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