LIQ-9-01-CO:R:C:E 222841 PH
Regional Commissioner of Customs
Pacific Region
RE: Application for Further Review of Protest No. 2704-90-
0017898; Sufficiency of Evidence; 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 by your
office and the protestant. Our decision follows.
FACTS:
According to the file, on December 12, 1988, the protestant
imported a quantity of men's golf jackets, made with 65 percent
polyester and 35 percent cotton woven fabric. The jackets were
entered under item 381.9530, Tariff Schedules of the United
States (TSUS), dutiable at the rate of 27.5 percent ad valorem
plus $.14 per pound, with duty in the amount of $36,832.42. The
entry date for this importation was December 10, 1988. The entry
was liquidated on January 20, 1989.
On January 3, 1990, the representative of the protestant
filed a request that the entry be reliquidated under 19 U.S.C.
1520(c)(1) because "[a]lthough entered under item 381.9530, TSUS,
these golf jackets are in fact protective apparel for use in
inclement weather constructed of fabric which has been treated to
be water resistant by being coated or laminated with rubber or
plastic and thus entitled to classification under item 376.56,
TSUS [dutiable at the rate of 7.6 percent ad valorem]." Accord-
ing to this letter, the merchandise was entered under item
381.9530 "purely as a result of [the protestant's] lack of
knowledge that the fabric used in the manufacture of the instant
style had been coated with a silver colored rubber or plastic and
was water resistant." Subsequently, according to the January 2,
1990, letter "it [came] to [the protestant's] attention that the
golf jackets ... are in fact constructed of water resistant
fabric, which when subjected to the rain test specified in AATCC
35 - 1985 permits less than 1.0 gram of water penetration." The
protestant stated that a "representative sample of the style in
issue" had been retained at its office and was available for
Customs analysis, should Customs require it.
The protestant's request for reliquidation was denied on
March 9, 1990, on the basis that the claim was not correctable
under 19 U.S.C. 1520(c)(1). On April 30, 1990, the protestant
filed the protest under consideration and applied for further
review. The basis for the protest was the same as that stated in
the initial request for reliquidation under 19 U.S.C. 1520(c)(1),
described above. The protest was forwarded for further review on
October 3, 1990.
ISSUE:
Was there sufficient evidence in this case to grant the
petition filed under 19 U.S.C. 1520(c)(1), the denial of which is
the subject of this protest?
LAW AND ANALYSIS:
Initially, we note that both the request for reliquidation
under 19 U.S.C. 1520(c)(1) and the protest of the denial of that
request, under 19 U.S.C. 1514(a), were timely filed.
Under section 520(c)(1), Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1)), Customs may reliquidate an entry to correct a
clerical error, mistake of fact, or other inadvertence not
amounting to an error in the construction of a law when certain
conditions are met. These conditions are that the clerical
error, mistake of fact, or other inadvertence must be adverse to
the importer, manifest from the record or established by
documentary evidence, and brought to the attention of Customs
within one year after the date of liquidation of the entry. The
relief provided for in 19 U.S.C. 1520(c)(1) is not an alternative
to the relief provided for in the form of protests under 19
U.S.C. 1514; section 1520(c)(1) only affords "limited relief in
the situations defined therein" (Phillips Petroleum Company v.
United States, 54 CCPA 7, 11, C.A.D. 893 (1966), quoted in
Godchaux-Henderson Sugar Co., Inc., v. United States, 85 Cust.
Ct. 68, 69, C.D. 4874 (1980); see also, Computime, Inc. v. United
States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), and Concentric
Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F. Supp. 623
(1986)).
It may be that the counsel of the protestant in this case
alleges a mistake of fact (i.e., "where a person understands the
facts to be other than they are, [as contrasted with] a mistake
of law ... where a person knows the facts as they really are but
has a mistaken belief as to the legal consequences of those
facts" (Hambro Automotive Corporation v. United States, 66 CCPA
113, 118, C.A.D. 1231, 603 F. 2d 850 (1979), quoting 58 C.J.S.
Mistake, section 832) or an inadvertence ("an oversight or
involuntary accident, or the result of inattention or
carelessness, and even ... a type of mistake" (Occidental Oil &
Gas Co. v. United States, Vol. 23 Cust. Bull. & Dec. No. 17,
April 26, 1989, page 40, 42, CIT Slip Op. 89-40, quoting C.J.
Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17,
22, C.D. 4327, 336 F. Supp 1395 (1972)). However, as stated
above, in order to qualify for relief under 19 U.S.C. 1520(c)(1),
the clerical error, mistake of fact, or other inadvertence must
be manifest from the record or established by documentary
evidence. According to the Court in PPG Industries, Inc. v.
United States, 4 CIT 143 (1982), quoting, in part, from the lower
court in Hambro, id, (Hambro Automotive Corp. v. United States,
81 Cust. Ct. 29, 31, C.D. 4761, 458 F. Supp. 1220 (1978)):
... it is incumbent on the plaintiff to show by
sufficient evidence the nature of the mistake of
fact. The burden and duty is upon the plaintiff
to inform the appropriate Customs official of the
alleged mistake with "sufficient particularity to
allow remedial action." [4 CIT at 147-148; see
also, United States v. Lineiro, 37 CCPA 5, 10,
C.A.D. 410 (1949), in which the Court stated
"[d]etermination of issues in customs litigation
may not be based on supposition."]
In this case there is no evidence on the claimed clerical
error, mistake of fact, or other inadvertence other than the
statements by the protestant's representative in the request for
reliquidation and the protest that the merchandise was entered
under the wrong tariff item because the protestant did not know
that the fabric used in the manufacture of the merchandise had
been coated to be water resistant and the offer to provide what
is stated to be a representative sample of the style in issue
(see Bar Bea Truck Leasing Co., Inc., v. United States, 5 CIT
124, 126 (1983), with regard to the sufficiency as evidence of a
counsel's unsupported assertions). There is no reference to
waterproofing or any coating of the merchandise in the entry
summary, entry/immediate delivery, bill of lading, factory
packing list, Hong Kong Government export license, certificate of
Hong Kong origin, declaration of origin, invoice, or any of the
other documents submitted with the file. There is no affidavit
by an appropriate employee of the protestant and/or manufacturer
or foreign exporter as to the facts of the claimed clerical
error, mistake of fact, or other inadvertence (see C.J. Tower &
Sons of Buffalo, Inc. v. United States, supra (cited by the
protestant), and C.S.D. 89-87), nor is there evidence of the
protestant's past practice in entering the merchandise under
consideration (see ruling 220965 dated November 26, 1990) or any
other documentary evidence (see, e.g., Protest Review Decision
(P.R.D.) 78-32 and C.S.D. 80-19 (each cited by the protestant)).
In the absence of sufficient evidence establishing that the
classification of the merchandise under consideration under item
381.9530, TSUS, was the result of a clerical error, mistake of
fact, or other inadvertence correctable under 19 U.S.C.
1520(c)(1), the protest must be DENIED.
HOLDING:
The evidence submitted in this case was insufficient to
grant the petition filed under 19 U.S.C. 1520(c)(1), the denial
of which is the subject of this protest. The protest is DENIED.
Sincerely,
John Durant, Director