LIQ-9-01-RR:IT:EC 226151 PH
Port Director of Customs
300 South Ferry Street
Terminal Island, California 90731
RE: Protest No. 2704-95-100869; Clerical Error, Mistake of Fact,
or other Inadvertence; 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1)
Dear Sir or Madam:
The above-referenced protest was forwarded to this office for
further review. We have considered the evidence provided and the
arguments made by the protestant, as well as Customs records
relating to this matter. Our decision follows.
FACTS:
According to the file and Customs records, on December 4 and 31,
1993, the protestant entered certain merchandise. According to
invoices (dated November 18 and December 3, 1993) in the file,
the merchandise consisted of "X-Y PLOTTER[s]" (one unit for each
entry, with the same model number listed on each invoice). A
hand-written notation on each invoice indicates that the tariff
classification was under subheading 9017.20.8090, with duty at
the rate of 5.8%.
According to the entry summaries for the merchandise, the
merchandise was entered as "other drawing, marking-out, other"
under subheading 9017.20.8090, HTSUS, with duty at the rate of
5.8%. According to Customs records, the December 4, 1993, entry
was liquidated on March 18, 1994, and the December 31, 1993,
entry was liquidated on April 15, 1994. The entries were
liquidated as entered, with duty of $1,148.57 in each instance.
On November 8, 1994 (according to Customs records), the
representative of the importer filed letters dated November 7,
1994, requesting that the entry be reviewed under 19 U.S.C.
1520(c)(1). According to these letters:
The mistake in fact was that duty was paid in based on an
incorrect classification due to the specific function of the
machinery in question ("MIMAKI" X-Y PLOTTER). This plotter
was inadvertently classified as a drawing or marking out
plotter under HTS# 9017.20.8090- 5.8%. In fact, based upon
illustrated literature provided by the importer of record
this x-y plotter is used in the manufacturing of cardboard
boxes, classified under HTS# 8441.10.0000 - 2% (NO). Please
refer to the attached brochure detailing the function of
this machine.
The file includes materials appearing to be copied from the
"attached brochure", describing the machine as an "affordable
solution for cardboard box manufacturers".
These requests for reliquidation were denied on December 13, 1994
(copies of the letters of denial are included in the file).
According to the letters of denial, the reason for denial was:
"The issue relates to construction of law rather than clerical
error or mistake of fact" and "Other [-] This issue is not
correctable at the 520(c) level." The protestant filed the
protest now under consideration on March 13, 1995.
Further review was requested and granted. According to the
memorandum forwarding the protest/application for further review
to this office, your office "concede[s] that the merchandise
should have been classified, as claimed, in HTS 8441.10.00, at 2%
ad valorem, rather than the entered and liquidated HTS
9017.20.80, at 5.8% ad valorem."
ISSUE:
May relief may be granted under 19 U.S.C. 1520(c)(1) in 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 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. Section 1520(c)(1) has frequently
been interpreted by the Courts. It has been stated that "[a]
clerical error is a mistake made by a clerk or other subordinate,
upon whom devolves no duty to exercise judgement, in writing or
copying the figures or in exercising his intention" (see PPG
Industries, Inc., v. United States, 7 CIT 118, 124 (1984), and
cases cited therein). It has been held that a "mistake of fact
exists where a person understands the facts to be other than they
are, whereas a mistake of law 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
(1979), quoted in Concentric Pumps, Ltd., v. United States, 10
CIT 505, 508, 643 F. Supp. 623 (1986); see also, C.J. Tower &
Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, C.D.
4327, 336 F. Supp 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129,
499 F. 2d 1277 (1974), and Universal Cooperatives, Inc. v. United
States, 13 CIT 516, 518, 715 F. Supp. 1113 (1989)). Inadvertence
has been defined as "an oversight or involuntary accident, or the
result of inattention or carelessness, and even as a type of
mistake" (Occidental Oil & Gas Co. v. United States, 13 CIT 244,
246 (1989), quoting C.J. Tower & Sons of Buffalo, Inc. v. United
States, supra, 68 Cust. Ct. at 22).
The conditions required to be met under 19 U.S.C. 1520(c)(1) 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, 496 F. Supp. 1326 (1980); see
also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F.
Supp. 1083 (1985), and Concentric Pumps, Ltd. v. United States,
supra).
Basically, the protestant in this case claims that the entries
should have been reliquidated because the broker who made the
entries "... inadvertently classified [the merchandise] ... as
drawing or marking out plotters [under HTS# 9017.20.8090] [when]
[i]n fact, these plotters are designed for the use in the
manufacturing of cardboard classifiable under HTS# 8441.10.0000
...." That is, apparently the protestant is claiming that the
alleged error was due to a mistake of fact, "where a person
understands the facts to be other than they are" (see above,
Hambro, and Concentric Pumps, supra; see also, IIT Corp. v.
United States, 812 F. Supp. 213 (CIT 1993), reversed, 24 F. 3rd
1384 (Fed. Cir. 1994) ("... the document preparer simply
understood the nature of the merchandise to be other than what it
was [and] [t]hus, a mistake of fact occurred" (812 F. Supp. at
216); although the Court of Appeals reversed, it stated about the
CIT finding of a mistake of fact: "[the finding] is amply
supported by the record and not clearly erroneous" (24 F. 3d at
1388)).
Under 19 U.S.C. 1520(c)(1), the clerical error, mistake of fact,
or other inadvertence not amounting to an error in the
construction of a law must be "manifest from the record or
established by documentary evidence." The alleged error in this
case is not manifest from the record (see ITT, 24 F. 3d at 1387
"... manifest from the record [means] apparent to Customs from a
facial examination of the entry and the entry papers alone, and
thus requir[ing] no further substantiation"). In IIT, the Court
stated that "[m]istakes of fact that are not manifest from [the]
record ... must be established by documentary evidence" (24 F. 3d
at 1387).
In this case there is no explanation of how or why the alleged
error occurred, nor is there any evidence (e.g., by the person
making the allegedly erroneous classification as to what he or
she believed the merchandise to be and the basis for that belief)
establishing that the alleged error is a mistake of fact and not
a mistake of law. The only possible explanation of the error is
the reference in the November 7, 1994, letters to "illustrated
literature provided by the importer of record [that] this x-y
plotter is used in the manufacturing of cardboard boxes", and
there is no evidence as to when this literature was provided to
the broker (see, in this regard, B.S. Livingston & Co. v. United
States, 13 CIT 889 (1989), in which, because the importer's
broker had the information necessary to classify the merchandise,
relief was limited to a timely protest under 19 U.S.C. 1514 (see
ruling HQ 226332, for an example of an application of the B.S.
Livingston case)).
This evidence is not sufficient to establish a mistake of fact
remediable under 19 U.S.C. 1520(c)(1) (i.e., that the nature of
the imported merchandise was other than the preparer of the entry
papers understood it to be). For examples of evidence in section
1520(c)(1) requests, see, e.g., HQ ruling 224118, July 26, 1993,
note also the description of the evidence required in the CIT IIT
decision (812 F. Supp. at 217) and note, in particular, that
evidence to "[make] clear to Customs that a mistake of fact,
rather than one of law, actually occurred" is necessary (812 F.
Supp. at 217). See also, in this regard, Andy Mohan, Inc. v.
United States, 74 Cust. Ct. 105, C.D. 4593, 396 F. Supp. 1280
(1975), aff'd 63 CCPA 104, C.A.D. 1173, 537 F. 2d 516 (1976);
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"; and Bar Bea Truck
Leasing Co., Inc., v. United States, 5 CIT 124, 126 (1983), with
regard to the sufficiency of evidence when there is "no affidavit
or other evidence in support of [plaintiff's] counsel's bald
assertion ...".
In the absence of sufficient evidence to establish a mistake of
fact remediable under 19 U.S.C. 1520(c)(1), we are guided by the
Court of Appeals IIT decision according to which--
... [A] prudent importer would submit all its supporting
documentary evidence along with its timely notice alleging a
mistake of fact before Customs consideration in order to
facilitate a prompt and favorable decision [and as] [t]he
[CIT correctly notes ... a party who waits past the time of
filing its ... [section] 1520(c)(1) request to file
supporting documentation risks an adverse decision by
Customs in the interim'" [24 F. 3d at 1388.]
HOLDING:
The mistake of fact alleged in this case is not manifest from the
record or established by documentary evidence, as required by 19
U.S.C. 1520(c)(1). The protest is DENIED.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office, with
the Customs Form 19, to the protestant no later than 60 days from
the date of this letter. Any reliquidation of the entry in
accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
Acting Director
International Trade Compliance Division