HQ 083112: Application for Further Review of Protests No. 1001- 8-004818 of May 31, 1988, and 1001-8-004509 of May 18, 1988

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 083112

                                      July 17, 1989

             CLA-2 CO:R:C:G  083112  SM

             CATEGORY:  Classification

             TARIFF NO.:  384.3777

             Area Director of Customs
             JFK Airport Area, Bldg. 178
             Jamaica, NY  114307

             RE:   Application for Further Review of Protests No. 1001-
                   8-004818 of May 31, 1988, and 1001-8-004509 of May
                   18, 1988

             Dear Sir:

                   These protests, filed by Siegel, Mandell and Davidson on
             behalf of Company A Ventures, Inc., concern your classifica-
             tion of certain goods, covered by Entry No. 820-0307079-2 of
             December 10, 1987, as women's shirts subject to category 341.
             The protestant claims that they are classifiable as jackets
             and subject to category 335.

             FACTS:

                   In a response dated February 5, 1988, on a Customs Form
             (CF) 6431, Report of Classification and Value, the National
             Import Specialist agreed with the sending Import Specialist
             that the goods were classifiable as other women's cotton
             shirts, not ornamented, not knit, under item 384.4789, Tariff
             Schedules of the United States Annotated (TSUSA), textile
             category 341.  They had been entered under item 384.3777,
             TSUSA, textile category 335, as other women's cotton coats,
             not ornamented, not knit.  A Notice of Redelivery was issued
             on February 19, 1988, requiring a visa in category 341.
             Counsel for the importer timely filed Protest No. 1001-8-
             005509 on May 18.  Nevertheless, the entry was liquidated, on
             May 20, 1988.  Counsel then timely filed Protest No. 1001-8-
             004818.  Applications for Further Review were approved for
             both protests.

                   A sample of the merchandise, Style 490A, made in
             Pakistan, was submitted.  It is a waist-length garment of a
             lightweight 100 percent cotton acid-washed fabric.  It fea-
             tures a full-front opening secured by five metal buttons, a
             pointed collar, long sleeves with single-button cuffs, adjust-
             able tabs at the waist, a band around the lower edge, and













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             front and back yokes.  It also features two patch pockets on
             the back and two front pockets with curved openings and par-
             tially visible patch pockets inside them.  The front pockets
             start at the yoke and extend downward but do not reach the
             waist.  The front pocketing hangs loosely inside the jacket.

                   Counsel for the importer argues that Style 490A is com-
             monly and commercially known as a jacket and would be worn
             only over a blouse or shirt because of its rough interior,
             front pockets, length, and overall styling.  He states fur-
             ther that Company A Ventures does not sell any shirts.  Pur-
             chase orders between Company A Ventures and its customers
             reflect sales as a jacket.  Letters from Zayre Stores and
             Bradlees state that they purchased Style 490A as a jacket.  A
             small advertising picture attached to the purchase order of
             Zayre's buyer refers to the garment as a cropped jacket.  Both
             counsel and the National Import Specialist argue from various
             features of the garment and from application of the Textile
             Category Guidelines, C.I.E. 6/87, that the garment is a jacket
             or a shirt, respectively.

             ISSUE:

                   Is Style 490A classifiable as a shirt or as a jacket?

             LAW AND ANALYSIS:

                   At the outset it is necessary to say that the entry
             should not have been liquidated while a protest was pending.
             Protests against decisions of appropriate Customs officers are
             provided for at 19 U.S.C.A.{ 1514 (1980 and Supp. 1988).
             Subsection 1514(a) provides that "decisions of the appropriate
             customs officer, including the legality of all orders and
             findings entering into the same, as to-- . . . (4) . . . a
             demand for redelivery to customs custody under any provision
             of the customs laws . . . shall be final and conclusive upon
             all persons (including the United States and any officer
             thereof) unless a protest is filed in accordance with this
             section . . . ."  Pursuant to the statute, in order to prevent
             the decision reflected in the Notice of Redelivery--namely,
             that the goods were not admissible without a category 341
             visa--from becoming final, counsel for the importer filed a
             protest within 90 days of the date of the notice.

                   At that point liquidation should have been suspended.
             Our appellate court has held that liquidation, even in error,
             is final for all purposes, including the determination of
             admissibility.  United States v. Utex International, Inc.,
             --Fed. Cir. (T)--, 857 F.2d 1408 (1988).  If liquidation had
             become final, the importer's statutory right to have his











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             (first)  protest considered would have been defeated.  In this
             case that right was preserved by the filing of a second pro-
             test, against the liquidation.  Importers should not be placed
             under the burden of having to protest the same decision twice,
             and indeed are normally precluded from doing so.  In this case
             it appears to have been the only recourse.

                   With regard to the classification issue, we note that
             the sending import specialist stated that the garment can be
             worn alone with sufficient coverage and has none of the usual
             jacket features.  We do not find these statements particularly
             persuasive.  Virtually any jacket can probably be worn alone
             with sufficient coverage for modesty.  The garment has the
             appearance of a cropped jacket.  The only feature suggesting
             strongly that it could be a shirt is the lightweight fabric.
             There are many lightweight, unlined jackets, however, and we
             are unable to find this factor conclusive.  The interior, with
             its many seams and hanging pocket material, does not appear
             particularly comfortable for wear against the skin.  In this
             case, absent any stronger evidence that the garment is in fact
             advertised, sold, and used as a shirt, we accept the import-
             er's characterization of the garment as a jacket.

             HOLDING:

                   Style 490A is classifiable as claimed under item
             384.3777, TSUSA (1987), textile category 335, a provision for
             other women's cotton coats, not ornamented.  Therefore, you
             should allow in full the protest against the notice of
             redelivery, 1001-8-005509.  Protest No. 1001-8-004818 should
             also be allowed on the basis of the allowance of the first.

                   For future reference, please note that when a protest
             has been filed against a demand for redelivery, liquidation
             should be suspended until a decision has been rendered on that
             protest.

                                        Sincerely,



                                        John Durant, Director
                                        Commercial Rulings Division


















             6cc:  Area Director of Customs
                   NY Seaport Area
             2cc:  Chief, C.I.E.
             cc:   Regional Commissioner, NY Region