HQ 556734: 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

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 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
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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




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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