LIQ-9-01-CO:R:C:E 223110 DHS
Assistant District Director,
Commercial Operations Division
Detroit, Michigan
RE: Application for Further Review of Protest No. 3801-1-100185,
Dated January 18, 1991; 19 U.S.C. 1520(c)(1); mistake of
fact
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, the District Director denied
reliquidation under Section 520(c)(1) of the Tariff Act of 1930,
as amended, 19 U.S.C. section 1520(c)(1)(1982) on the issue of
classification of pneumatic tools.
The protestant avers that the tools were misclassified:
however, this misclassification is correctable as a mistake of
fact under section 1520(c)(1). It is the protestant's belief
that since your office approved a protest to reclassify previous
entries that were misclassified that they are entitled to have
the misclassification of the present entries reclassified under
section 1520(c). A copy of the previously approved protest was
provided.
You contend that the error in the classification of
the merchandise is an error in the construction of the law, and
therefore, not correctable under section 1520(c)(1). It is your
opinion that since the same merchandise was entered under the
previously allowed protest that the importer had descriptive
literature available to him at the time of determining the
classification number. A mistake of fact, therefore, could not
exist.
ISSUE:
Whether the tariff classification of imported merchandise
may be corrected under section 1520(c)(1).
Whether an approved protest permitting reclassification of
misclassified merchandise is binding on subsequent protests
brought under section 1520(c).
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 of the date
of liquidation. In pertinent part Section 1520(c)(1) provides:
(c) Notwithstanding a valid protest was not filed, the
appropriate customs officer may, ... reliquidate an entry to
correct--
(1) a clerical error, mistake of fact, or
other inadvertence not amounting to an error
in the construction of law, adverse to the
importer and manifest from the record or
established by documentary evidence, in any
entry, liquidation, or other customs
transaction, when the error, mistake or
inadvertence is brought to the attention of
the appropriate customs officer within one
year after the date of liquidation or
exaction; ...
A petition under Section 1520(c)(1) was designed to provide
for a limited remedial action on the part of the Customs official
under the above circumstances; it is not an alternative to the
normal liquidation-protest method of obtaining review.
A mistake of fact has been defined as "a mistake which takes
place when some fact which indeed exists in unknown, or a fact
which is thought to exist, in reality does not exist." C.J.
Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17,
22, C.D. 4327, 336 F. Supp. 1395, 1399 (1972), aff'd, 61 CCPA 90,
C.A.D. 1129, 499 F.2d 1277 (1974). Mistakes of fact occur when a
person believes the facts to be other than what they really are
and takes action based on that erroneous belief. See, T.D. 54848
(1959).
A mistake of law, on the other hand, exists 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, 854 (1979)(citing 58 C.J.S. Mistake, section 832)
The court in Universal Cooperative, Inc. v. United States,
13 Ct. Int'l Trade ___, 23 Cust. B. & Dec., No. 29, pg 38 (June
27, 1989), made a distinction between the types of factual
mistakes. "There is the decisional mistake in which a party may
make the wrong choice between two known, alternative set of
facts. There is also the ignorant mistake in which a party is
unaware of the existence of the correct alternative set of facts.
The decisional mistake must be challenged under Section 514 (19
U.S.C. 1514). The ignorant mistake must be remedied under
Section 520 (19 U.S.C. 1520(c)(1))."
The case at hand is analogous to B.S. Livingston & Co., Inc.
v. United States, Slip Op. 89-151, dated October 27, 1989. In
that case, a representative of the importer had a description of
the merchandise and improperly applied the tariff schedules.
Customs accepted this classification at the time of liquidation.
After the 90 day period to file a protest lapsed, the importer
unsuccessfully requested reliquidation of the entry. This was
followed by an unsuccessful protest to the denial based upon the
conclusion by Customs and the court that no section 1520 error
had occurred in liquidation. Since the importer had failed to
file an appropriate protest under section 1514(a), contesting the
customs classification, the importer could not seek relief under
section 1520(c).
In reaching this decision, the court referred to the
principle that a determination by the Customs Service of the
particular provision or the item of the tariff schedules is a
conclusion of law. Mattel, Inc. v. United States, 72 Cust. Ct.
257, 262, C.D. 4547, 377 F. Supp. 955, 960(1974). This was
supported by the language in Occidental Oil & Gas Co. v. United
States, 13 CIT ___, slip Op. 89-40 at 6 (citing Mattel Inc. v.
United States), which stated that "an erroneous classification of
imported merchandise is not remedial as a clerical error, mistake
of fact or inadvertence under section 1520(c)(1)."
In this case, there is no evidence presented by the importer
which would substantiate a claim for reliquidation under section
1520(c). Nothing in the facts suggests that the importer
believed the facts to be other than what they really are.
According to the listed merchandise on the previously approved
protest, it appears that the importer knew the description of the
entered merchandise. Based upon the above, reliquidation of the
entry under section 1520 would not be applicable to the situation
at hand. The protestant's remedy to correct the classification
of the merchandise was to file a timely protest pursuant to 19
U.S.C. section 1514(a).
Finally, we address the contention presented by the
protestant regarding the binding affect of an approved protest,
which permitted the correction of a misclassification, on other
misclassified entries.
It is a well established principle that every transaction
stands independently, and absent an "established and uniform"
practice the determination to liquidate one entry is not binding
upon subsequent entries. This principle is supported by the
court in Asiatic Petroleum Corporation v. United States, 64 Cust.
Ct. 47, 51, C.D. 3958 (1970), rev'd on other grounds, 59 CCPA 20,
C.A.D. 1029, 449 F.2d 1309 (1971), which concluded that res
judicata was inapplicable unless an "established and uniform"
practice was proved.
The approval of one protest permitting liquidation of
specific merchandise is not proof of an "established and uniform"
practice. The previously approved protest, therefore, would not
have any binding affect on the approval of claims brought under
section 1520(c).
HOLDING:
The subject protest should be DENIED in full.
A copy of this decision should be attached to the CF 19
Notice of Action to satisfy the notice requirement of section
174.30(a), Customs Regulations.
Sincerely,
John A. Durant, Director