Vessel Repair Entry No. 514-3005486-9; 19 U.S.C. 1466; Petition; ALMERIA LYKES

HQ 114773 August 11, 1999 VES-13-18-RR:IT:EC 114773 GOB CATEGORY: Carriers Port Director of Customs Attn.: Residual Liquidation and Protest Branch, Room 761 Six World Trade Center New York, N.Y. 10048 RE: Vessel Repair Entry No. 514-3005486-9; 19 U.S.C. 1466; Petition; ALMERIA LYKES Dear Madam: This is in response to your memorandum of July 30, 1999, which forwarded the petition submitted by American Ship Management, LLC (“petitioner”) with respect to the above-referenced vessel repair entry. FACTS: The ALMERIA LYKES (the “vessel”), a U.S.-flag vessel, arrived at the port of Newark, New Jersey on August 6, 1996. The subject vessel repair entry was timely filed. By letter of October 23, 1998, your office granted the application in part and denied the application in part. ISSUE: Whether the subject items are dutiable pursuant to 19 U.S.C. 1466(a)? LAW AND ANALYSIS: 19 U.S.C. 1466(a) provides for the payment of duty at a rate of fifty percent ad valorem on the cost of foreign repairs to vessels documented under the laws of the United States to engage in foreign or coastwise trade, or vessels intended to be employed in such trade. The petitioner states that there may be problems or errors in Customs calculation of currency conversion figures. We request that your office review its currency conversion calculations, make any changes which may be appropriate, and advise the petitioner with respect to this claim. Seven voyages are listed on the subject entry - voyage 20 through 26. We will address each voyage separately. Our analysis in this matter is based primarily on the pertinent invoices. The assertions of the petition, by themselves, are not considered to be satisfactory documentary evidence. In this regard, we note the statement of the court in Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983): Again, plaintiff has presented no affidavit or other evidence in support of its counsel’s bald assertion... If we are unable to determine the precise nature of certain work because of the lack of clear and probative documentary evidence, and are thus unable to determine that it is nondutiable, such work will be found dutiable. In this regard, we note the statement of the Customs Court in Admiral Oriental Line v. United States, T.D. 43585 (1929): The evidence is conflicting upon that point, and the plaintiff has not proved the collector’s classification to be wrong. The burden is upon the plaintiff to show not only that the collector was wrong in his classification but that the plaintiff was right. In Sturm, A Manual of Customs Law (1974 ed.), p. 173-174, the author stated, in pertinent part: Where Congress has carved out special privileges or exemptions from the general provisions levying duties upon imported articles, the courts have strictly construed such exceptions and have resolved any doubt in favor of the government. Swan & Finch Company v. United States, 190 U.S. 143, 23 SCR 702, 47 L. Ed. 984 (1903); Pelz-Greenstein Co. v. United States, 17 CCPA 305, T.D. 43718 (1929)... ... An exception which carves out something which would otherwise be included must be strictly construed. Goat & Sheepskin Import Co., et al. v. United States, 5 Ct. Cust. Appls. 178, T.D. 34254 (1914); [et al.] After a consideration of the documentation of record we make the following determinations. Voyage 20. We find that the requested treatment under 19 U.S.C. 1466(h)(3) is appropriate for the gaskets invoiced in items 26 and 27. We determine that the cooling system (#22) is dutiable under 19 U.S.C. 1466(a) as vessel equipment. The articles invoiced within items 23 and 28 are dutiable under 19 U.S.C. 1466(a); the information on the vendor’s invoices is not sufficient to establish a basis for relief. Voyage 21. We find that the following items are eligible for treatment under 19 U.S.C. 1466(h)(3): the piston rings, gaskets, and O rings invoiced in item 3; the O rings and gaskets invoiced in item 11; and the parts invoiced in item 16. We determine that the paint (#21) is dutiable material under 19 U.S.C. 1466(a). The articles in item 1 are dutiable under 19 U.S.C. 1466(a); the information on the vendor’s invoices is not sufficient to establish a basis for relief. Voyage 22. We find that the paint is dutiable material under 19 U.S.C. 1466(a). Voyage 23. We find that the following items are eligible for treatment under 19 U.S.C. 1466(h)(3): frequency synthesizer board (#9); piston rings (#18); and the parts invoiced in item 21. The articles invoiced in items 6, 17, and 23 are dutiable under 19 U.S.C. 1466(a); there is no information on the vendor’s invoices which indicates or establishes a basis for relief. The training videos in item 8 are dutiable under 19 U.S.C. 1466(a) as vessel equipment. Voyage 24. We find that the O ring, sealing ring, and guide ring in item 19 are eligible for treatment under 19 U.S.C. 1466(h)(3). Relief is denied with respect to the other items (#1, 2, 11, 16, 22, and 26) because the information on the vendor’s invoices is not sufficient to establish a basis for relief. Voyage 25. We find that the following articles are eligible for treatment under 19 U.S.C. 1466(h)(3): O rings (#2); piston rings (#20); and scraper rings (#32). With respect to the other items for which relief is requested on this voyage (#17, 18, 25, 26, 30, and 32), we determine that they are dutiable under 19 U.S.C. 1466(a) in the absence of an invoice description and/or satisfactory documentary evidence that they are eligible for treatment under 19 U.S.C. 1466(h)(3). Voyage 26. We find that the piston rings (#4) are eligible for treatment under 19 U.S.C. 1466(h)(3). Relief is denied with respect to the other four items (#5, 13, 15, and 16) because there is no information on the invoices which would establish a basis for relief under 19 U.S.C. 1466(h)(3). HOLDING: As detailed above, the petition is granted in part and denied in part. Sincerely, Jerry Laderberg Chief, Entry Procedures and Carriers Branch