Application for Further Review of Protest Nos. 1001-8-005305 and 1001-8-005526; eligibility of lipliners and eyeliner pencils for duty-free treatment as samples

HQ 556734 September 28, 1992 CLA-2 CO:R:C:S 556734 CW CATEGORY: Classification TARIFF NO: 9811.00.60 Area Director of Customs J.F.K. Airport Building 178 Jamaica, New York 11430 RE: Application for Further Review of Protest Nos. 1001-8-005305 and 1001-8-005526; eligibility of lipliners and eyeliner pencils for duty-free treatment as samples Dear Sir: The above-referenced protests contest the denial by your office of duty-free treatment under item 860.30, Tariff Schedules of the United States (TSUS), for lipliners/lipsticks and eyeliner pencils imported from France by Christian Dior Perfumes, Inc. FACTS: Cosmetic items described on the invoices as lipsticks/lipliners and eyeliner pencils, which were made in Germany or Italy, were imported from France in 1986 and 1987 by Christian Dior Perfumes, Inc. Counsel for the protestant claims that the articles were samples for soliciting orders for foreign merchandise and, therefore, are entitled to duty-free treatment under item 860.30, TSUS (now subheading 9811.00.60, Harmonized Tariff Schedule of the United States (HTSUS)). Alternatively, counsel for the protestant maintains that neither the importer nor the surety was given notice of the extension of the liquidation date beyond one year, as required by 19 U.S.C. 1504(b). As a result, it is claimed that the entries subject to these protests should be "deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry as of one year after the date of entry by operation of 19 U.S.C. 1504(a)." You office initially determined that the subject merchandise was ineligible for classification under 860.30, TSUS, because the invoices attached to the entries do not indicate that the products are samples. However, after discussions with the protestant, your office now agrees that the lipsticks/lipliners, which are the subject of Protest No. 1001-8-005526, are entitled - 2 - to duty-free treatment under this tariff provision. In addition, we have been advised that, as a result of those discussions, the protestant now concedes that the eyeliner pencils, which are the subject of Protest No. 1001-8-005305, do not qualify as samples for soliciting orders for foreign merchandise. ISSUE: 1. Whether the lipsticks/lipliners and eyeliner pencils are entitled to duty-free treatment under item 860.30, TSUS, as samples for taking orders for foreign merchandise. 2. Whether the protestant was given notification by Customs of the extension of the statutory one-year period for liquidation of the entries subject to these protests, as required by 19 U.S.C. 1504(b) and section 159.12(b), Customs Regulations (19 CFR 159.12(b)). LAW AND ANALYSIS: Item 860.30, TSUS, provides for the free entry of samples valued not over $1 each, or marked, torn, perforated, or otherwise treated so that they are unsuitable for sale or for use other than as samples for soliciting orders for products of foreign countries. We have been advised that your office is now satisfied that the lipsticks/lipliners subject to Protest No. 1001-8-005526 are entitled to duty-free treatment as samples under item 860.30, TSUS. We concur. Therefore, this protest should be granted in full. In addition, because the protestant now concedes that the eyeliner pencils subject to Protest No. 1001-8-005305 are not entitled to classification under 860.30, TSUS, the portion of the protest relating to this issue should be denied. With respect to protestant's alternative claim -- that neither the surety nor the importer received from Customs notices of extension of the date of liquidation of the entry subject to Protest No. 1001-8-005305 --, our records reflect that such notices were sent to both the importer and the surety on March 9, 1986, and September 12, 1987. Therefore, this protest should be denied in full. HOLDING: For the reasons set forth above, Protest No. 1001-8-005526 should be granted in full, while Protest No. 1001-8-005305 should be denied in full. A copy of this decision should be attached to - 3 - the Customs Form 19's and mailed to the protestant as part of the notices of action on the protests. Sincerely, John Durant, Director Commercial Rulings Division