LIQ-9-01-CO:R:C:E 220965 CB
Regional Commissioner
U.S. Customs Service
North Central Region
Suite 1501
55 East Monroe Street
Chicago, ILL 60603-5790
RE: Application for further review of Protest No. 3901-6-000779
under 19 U.S.C. 1520(c)(1)
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the points raised and our
decision follows.
FACTS:
Protest has been filed against the Customs Service denial of
a request for reliquidation of the subject entries, pursuant to
19 U.S.C. 1520(c)(1).
According to protestant, the entry at issue consists of an
experimental drug. Protestant states that the shipment was
entered on May 21, 1985, under TSUS item 437.32, but should have
been entered temporarily under bond under TSUS item 864.30. It
is claimed that upon discovery of the mistake, protestant's
customs broker submitted a letter dated August 6, 1985, along
with an explanatory letter from protestant dated June 11, 1985,
describing the circumstances and requesting that Customs accept a
substitute entry. Customs proceeded with liquidation on October
11, 1985.
Protestant alleges that, at the time of entry, the broker
was not aware that the merchandise was an experimental drug.
Apparently, the person normally responsible for expediting the
shipment was on vacation, and the replacement employee was not
aware that the imported compound was to be used in research and
experiments and was not intended for sale. There was no
indication of the intended use of the merchandise on the face of
the import documents. As evidence of its intent to enter the
merchandise under item 864.30, TSUS, protestant points to the
fact that several TIB entries had already been made for the same
merchandise.
-2-
The DARC (Classification & Value) at Chicago concurs with
the recommendation that the protest be denied because there is no
evidence of the requisite intent to file a TIB entry summary at
the time the consumption entry was filed. The National Import
Specialist (NIS) recommends that the claim be approved. The NIS
concludes that the previous entries establish an intent to file
the TIB entry.
ISSUE:
Whether a clerical error correctable under 19 U.S.C. 1520
(c)(1) occurred when the customs broker failed to request
temporary importation under bond at the time of entry?
LAW AND ANALYSIS:
Section 520(c)(1) of the Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1)), provides that Customs may correct certain
errors, if adverse to the importer, within one year from the date
of liquidation. An entry may be reliquidated in order to correct
a clerical error, mistake of fact, or inadvertence not amounting
to an error in the construction of a law. See 19 U.S.C. 1520
(c)(1); 19 CFR 173.4. Section 520(c) is not an alternative to
the normal liquidation-protest method of obtaining review, but
rather affords limited relief where an unnoticed or unintentional
error has been committed. See Computime, Inc. v. United States,
9 Ct. Int'l Trade 553, 622 F. Supp. 1083 (1985); see also
Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec.
No. 29, p. 38, Slip Op. No. 89-89 (CIT June 27, 1989).
Section T.D. 54848 describes and distinguishes correctable
errors under 1520(c). Mistake of fact occurs when a person
believes the facts to be other than what they really are and
takes action based on that erroneous belief. The reason for the
belief may be that a fact exists but is unknown to the person or
he may believe that something is a fact when in reality it is
not. Inadvertence connotes inattention, oversight, negligence,
or lack of care while clerical error occurs when a person intends
to do one thing but does something else, including mistakes in
arithmetic and the failure to associate all the papers in a
record under consideration. These errors are not necessarily
mutually exclusive. However, errors in the construction of a law
are not correctable under 1520(c). Those occur when a person
knows the true facts of a case but has a mistaken belief of the
legal consequences of those facts and acts on that mistaken
belief. 94 Treas. Dec. 244, 245-246 (1959).
-3-
The protestant's claim for relief under 19 U.S.C. 1520
(c)(1) is that the person normally responsible for expediting
the shipment was on vacation, and the replacement was unaware of
the fact that the merchandise was experimental and not intended
for sale or any other use. As stated by the Court of
International Trade in PPG Industries, Inc. v. United States, 7
Ct. Int'l Trade 118, 124 (1984), three conditions must be
satisfied before an entry can be reliquidated to correct a
mistake of fact:
(1) a mistake of fact must exist;
(2) the mistake must be manifest from the record or
established by documentary evidence; and
(3) the mistake of fact must be brought to the attention
of the Customs Service within the time requirements of
the statute.
In the instant case, protestant has satisfied all three
requirements. A mistake of fact has occurred. There is
evidence of the mistake, i.e. protestant's past practice of
entering the same merchandise under TIB as evidenced by the three
previous entries made during the same year. And, protestant's
attempt to bring the mistake to the attention of the Customs
Service is evidenced by protestant's letter of June 11, 1985, and
the broker's letter of August 6, 1985.
The Customs Service has previously held that, when a
consumption entry is filed inadvertently where there appears no
intention that the goods be taken into consumption and intent is
ascertainable from the record, relief may be granted under 1520
(c). See HQ Ruling 723375, issued August 27, 1984.
Reliquidation is proper when a clerical error, mistake of fact,
or other inadvertence is manifest from the record or established
by documentary evidence. See also HQ 220969 issued November 23,
1988. The subject protest meets all of these requirements.
HOLDING:
The record sufficiently establishes, by documentary
evidence, a clerical error, mistake of fact or inadvertence on
the part of the broker. Therefore, you are advised to Approve
the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division