RR:CR:DR
228840 RND
Port Director of Customs
Att: Sharon Daye
40 South Gay Street
Baltimore, Md. 21202
RE: Protest 1303-99-100372; Application for further review of Protest No. 1303-99-100372; 19 U.S.C. §1514; 19 U.S.C. §1520(c); mistake of fact; tapered roller bearings; Romania; Universal Automotive Trading Company; antidumping case number A-485-602; clerical error; 19 U.S.C. §1677g; 19 C.F.R. §351.402(f); 19 C.F.R. §174.11(g).
Dear Ms. Daye:
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:
Between October 8, 1996 and May 20, 1997, Universal Automotive Trading Company, Limited (“Universal”) was the importer of record for the 13 entries which are the subject of this application for further review. According to Customs’ automated data collection system, (ACS) four of these entries, (numbers 967-1; 013-1; 125-3; 202-0) were entry type coded as warehouse withdrawals for consumption. The other nine entries, (numbers 308-8; 248-2; 645-9; 237-4; 239-0; 405-7; 949-4; 206-8; 485-8) were coded as consumption entries. The merchandise entered with these 13 entries consists of tapered roller bearings (TRBs) and parts thereof, from Romania. It is not disputed that these protested entries are subject to antidumping duties per case number A-485-602.
In a notice of Initiation of Antidumping Duty Investigation (Federal Register of September 19, 1986 (51 FR 33287) Customs was directed, by the Department of Commerce (DOC), to suspend liquidation of all entries of the subject merchandise, tapered roller bearings (TRBs) from Romania. The Antidumping Order was issued June 19, 1987. A final determination was published in the Federal Register on October 2, 1996 (61 FR 51427) imposing a rate of 14.89% cash deposit “for all shipments of TRBs from Romania entered, or withdrawn from warehouse, for consumption on or after the publication date.” The Amended Final Results of Review (Federal Register of November 22, 1996 (61 FR 59416)) required Customs to collect a deposit on all shipments of Romanian TRBs of 7.67%, again, “for all shipments of TRBs from Romania entered, or withdrawn from warehouse, for consumption on or after the publication date.” Therefore, the required antidumping duty deposit rates in effect for Romanian TRBs, entered for consumption or withdrawn from warehouse during the period at issue, October 8, 1996 through May 20, 1997, are as follows: after October 2, 1996 the deposit rate was 14.89%; after November 22, 1996 the effective rate applied is 7.67%.
The above referenced antidumping notices published in the Federal Register (51 FR 33287; 61 FR 51427; 51 FR 33287), relevant to case number A-485-602, also included the following paragraph:
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 353.26 to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
Department of Commerce (DOC) liquidation instructions number 8048112, dated February 17, 1998, instructed Customs to liquidate all entries (except those of a particular firm - irrelevant here) of tapered roller bearings from Romania per case number A-485-602. This directive from Commerce further instructed Customs to “assess antidumping duties on merchandise entered, or withdrawn from warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry summary” for the period June 1, 1996 to May 31, 1997.
According to a Supervisory Import Specialist at the Port of Baltimore, two Customs Form 29, (CF 29), Notices of Action, dated April 3, 1998, were prepared for the protestant. Both CF 29s were addressed to the importer, Universal Automotive Trading Company, Limited, PO Box 4910, Nassau, Bahamas, and placed into the protestant’s broker’s (Fritz Companies, Inc.) box at the Port of Baltimore. The Supervisory Import Specialist stated that the CF 29s were placed into the broker’s box at the port because it is Customs policy not to mail documents addressed to locations outside the United States. One CF 29 advised the protestant of a rate advance on entry 308-8 due to antidumping duties and that “antidumping duties shall be assessed at 14.89% for case number A-485-602.” The other CF 29 listed the other protested entries and declared the “Type of Action” as “OTHER (See below).” Both CF 29s further stated that, “in the absence of a statement of non–reimbursement of antidumping duties, Customs shall assess double the applicable antidumping duties.” These Notices of Action included the sentence, “you may complete, sign and return the attached statement,” referring to the Reimbursement Certificates attached to each CF 29. According to the box checked on both CF 29s, if the importer, Universal, disagreed with the proposed action, it was requested to furnish its reasons, in writing, to Customs within 20 days from the date of the notice; after 20 days the entries were to be liquidated as proposed.
The Reimbursement Certificates attached to the Notices of Action instructed the importer to certify whether it would be reimbursed for the antidumping duties assessed on the listed entries. The Reimbursement Certificates also instructed that “the statement should be signed by a competent officer of the company shown as the importer.” The Certificates included blank lines for a signature, title, company and date, ostensibly, to be completed by the importer. One Reimbursement Certificate listed entry 308-8; the other listed the following entry numbers: 828-6; 833-6; 495-0; 405-7; 248-2; 645-9; 237-4; 205-6; 239-0; 490-1; 949-4; 492-7; 206-8; 485-8; 494-3. (We note that the following entries, listed on one Reimbursement Certificate, are not included in the instant protest: 828-6; 833-6; 205-6. Further, the following entries, included in this protest, are listed on one Reimbursement Certificate by their warehouse withdrawal numbers: 495-0 (entry 125-3); 490-1 (entry 013-1); 492-7 (entry 202-0); 494-3 (entry 967-1) instead of by their entry numbers.)
The protested entries were liquidated by Customs per Department of Commerce liquidation instructions, number 8048112, and assessed antidumping duties at rates shown in the following tables; interest was also imposed on the entries as shown:
Warehouse withdrawal entries:
Entry number:
Withdrawal number:
Entry Summary date:
AD rate assessed:
Interest
imposed:
202-0
492-7
12/10/96
15.34%
849.05
967-1
494-3
12/10/96
15.34%
1002.52
125-3
495-0
12/10/96
15.34%
1158.90
013-1
490-1
12/10/96
15.34%
514.14
Consumption entries
Entry number:
Entry date:
AD rate assessed:
Interest
imposed:
308-8
10/08/96
29.78%
4684.00
248-2
1/19/97
15.34%
1100.90
645-9
2/12/97
15.34%
283.93
237-4
3/18/97
15.34%
768.51
239-0
3/18/97
15.34%
704.45
405-7
4/3/97
15.34%
875.57
949-4
4/21/97
15.34%
938.41
206-8
5/5/97
15.34%
600.19
485-8
5/20/97
15.34%
434.84
On July 7, 1999, Universal filed a Request for Administrative Review and reliquidation of 9 entries, (013-1; 248-2; 645-9; 237-4; 239-0; 405-7; 949-4; 206-8; 485-8) pursuant to §1520(c)(1), with the Port Director, Baltimore. On July 22, 1999 Universal filed another Request for Administrative Review and reliquidation under §1520(c)(1) of 4 additional entries, (202-0; 967-1; 125-3; 308-8), with the Port Director, Baltimore. These two Requests for Administrative Review and reliquidation were based on the importer’s contention that 12 of the entries were assessed, in error, twice the antidumping duties required and one entry, 308-8, was assessed, in error, quadruple the antidumping duties required at liquidation. Attached to the Requests for Administrative Review were completed Reimbursement Certificates, dated July 21, 1999. The protestant argues that “the double assessment of antidumping duties was the result of an error of ignorance on the part of the importer and was not the result of an error in the construction of the law.” The protestant further claims that since the additional antidumping duties were assessed in error, the interest imposed is an error.
The protestant paid an antidumping duty of 14.89% on entry 308-8, and 7.67% on the other protested entries upon entry. Universal contends that these were the correct antidumping duties required and were paid in full upon entry. In addition, the protestant states that the antidumping duties were doubled because Customs had no completed Reimbursement Certificates from the importer to certify that the importer was not reimbursed for the antidumping duties. The importer agrees it had not, at the time the protested entries were liquidated, completed Reimbursement Certificates and filed them with Customs. The importer explains that this was a mistake of fact because it was unaware that Customs was preparing to liquidate these entries and “hence it was ignorant of the fact that a reimbursement statement was needed.” Universal further states that it did not receive a request from Customs on CF 28 or 29 for the Reimbursement Certificates and therefore, the importer “was totally ignorant of the pending liquidation and hence equally ignorant of the need to furnish a reimbursement statement to Customs.” The protestant also contends that not receiving formal or informal notice of Customs’ need for the Reimbursement Certificates was “a departure from past practice.”
On October 4, 1999 the Port denied both Requests for Administrative Review and reliquidation under §1520(c)(1) because “liquidation was not the result of clerical error or mistake of fact.” On December 28, 1999, Universal filed a protest, protesting the denial of the two §1520(c) petitions to reliquidate the entries. Therein, Universal alleged that “the facts or legal arguments presented were not considered at the time of the original decision.” The importer still contends that the antidumping duties and interest imposed on the 13 protested entries are the result of a clerical error, mistake of fact, or other inadvertence. Further review for the two Requests for Administrative Review and reliquidation, consolidated here into one protest number 1303-99-100372, was requested and granted.
ISSUE:
Was the application of the presumption of reimbursement of antidumping duties, resulting in the doubling of the cash deposit rate and the imposition of interest at liquidation on the 13 protested entries due to a clerical error, mistake of fact, or other inadvertence, not amounting to an error in the construction of a law correctable under 19 U.S.C. §1520(c)(1)?
LAW AND ANALYSIS:
Initially, we note that both requests for Administrative Relief and reliquidation under 19 U.S.C. §1520(c)(1) were timely filed, i.e. within 1 year after the date of liquidation (19 C.F.R. §173.4(c)). All the entries protested with the Request for Administrative Relief dated July 7, 1999, were liquidated on July 10, 1998. The entries included on the July 22, 1999, Request were liquidated on July 31, 1998. Moreover, we note that this consolidated protest was timely filed, i.e., within 90 days after the denial of the request for relief under 19 U.S.C. §1520(c)(1) (19 C.F.R. §174.12(e)(2)). The requests for Administrative Relief and reliquidation were denied on October 4, 1999. This protest was filed December 28, 1999.
Under 19 U.S.C. §1514(a) “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to( the refusal to reliquidate an entry under §1520(c)” are final unless a protest of that decision is filed within 90 days of the decision (19 U.S.C. §1514(c)(3)(B)). Section 1520(c)(1) of 19 U.S.C. is an exception to the finality of §1514. Under §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. The error must be adverse to the importer and manifest from the record or established by documentary evidence and brought to the attention of the Customs Service within one year after the date of liquidation (19 U.S.C. §1520(c)(1)). The relief provided by 19 U.S.C. §1520(c)(1) is not an alternative to the relief provided 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, 10 CIT 505, 508, 643 F. Supp. 623 (1986)).
The matter protested, “the refusal to reliquidate an entry under § 1520(c)” is protestable per 19 U.S.C. §1514(a)(7) (19 C.F.R. §174.11(g)), and Customs may reliquidate the protestant’s entries to correct “a clerical error, mistake of fact, or other inadvertence, not amounting to an error in the construction of a law.” In this case, Universal must establish that the antidumping duties and interest assessed at liquidation was due to “clerical error, mistake of fact, or other inadvertence, not amounting to an error in the construction of a law.” The protestant must also establish that the alleged errors were adverse to the protestant and manifest from the record or established by documentary evidence.
The Courts have frequently interpreted § 1520(c)(1) regarding “a clerical error, mistake of fact, or other inadvertence, not amounting to an error in the construction of a law.” 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). 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).
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)). A “mistake of fact” has also been described as “a mistake which takes place when some fact which indeed exists is 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). 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.
Concerning the role of Customs in liquidating antidumping duties, under the applicable statutes, the Department of Commerce, not Customs, has the authority to calculate and determine antidumping duties. In Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973 (Fed Cir. 1994) the court stated:
Customs merely follows Commerce's instructions in assessing and collecting duties. Customs does not determine the "rate and amount" of antidumping duties under 19 U.S.C. § 1514(a)(2). Customs only applies antidumping rates determined by Commerce. Further, Customs has a merely ministerial role in liquidating antidumping duties under 19 U.S.C. § 1514(a)(5).
Mitsubishi Electronics, supra, at page 977.
Commerce, not Customs, calculates antidumping duties. The Trade Agreements Act of 1979 (1979 Act) transferred administration of the antidumping laws from the United States Treasury Department to Commerce. Pub.L. No. 96-39, §101, 93 Stat. 144, 169-70 (1979). Under the present antidumping law, Commerce calculates and determines antidumping rates. 19 U.S.C. §1675 (1988 & Supp. V 1993). Commerce conducts the antidumping duty investigation, calculates the antidumping margin, and issues the antidumping duty order. Commerce then directs Customs to collect the estimated duties. See 19 U.S.C. §1673e(a)(1) (1990).
Id. at 976.
Customs is required to collect the antidumping duties imposed by the Department of Commerce per 19 U.S.C. §1673(g). Section 1673(g) states, “all entries, or withdrawals from warehouse, for consumption of merchandise subject to an antidumping duty order on or after the date of publication of such order” must meet with requirements of §1673(g)(b). Section 1673(g)(b)(4) states, in pertinent part, “a person shall . . . pay the antidumping duty imposed under section 1673 of this title [19 U.S.C.] on that merchandise” [subject to the antidumping duty order].
The Antidumping Duty Order for this case was issued June 19, 1987. A final determination of Antidumping Duty Investigation was published by the Department of Commerce in the Federal Register on October 2, 1996 (61 FR 51427) imposing a rate of 14.89% cash deposit on Romanian TRBs entered, or withdrawn from warehouse on or after October 2, 1996. The Amended Final Results of Review (Federal Register of November 22, 1996 (61 FR 59416) required a deposit on all shipments of Romanian TRBs of 7.67% after November 22, 1996. Therefore, the required antidumping duty deposit rates in effect, for Romanian TRBs entered for consumption or withdrawn from warehouse during the period at issue, October 8, 1996 through May 20, 1997, are as follows: after October 2, 1996, the deposit rate was 14.89%; after November 22, 1996, the deposit rate applied is 7.67%. The protestant paid these cash deposit antidumping duty rates imposed when the consumption entries were entered and when the TRBs were withdrawn from warehouse for consumption.
These applicable deposits rates of 14.89%, and 7.67% were applied at liquidation per DOC liquidation instructions, number 8048112 which directed Customs to assess antidumping duties in accordance with Commerce Regulation 351.212(c) (19 C.F.R. §351.212(c)). This directive from Commerce instructs Customs to “assess antidumping duties on Romanian TRBs entered, or withdrawn from warehouse, for consumption at the cash deposit rate in effect on the date of entry summary” for the period June 1, 1996 to May 31, 1997 (19 C.F.R. §351.212(c)(i)). The instant protested entries were entered or withdrawn from warehouse between October 8, 1996 and May 20, 1997.
Moreover, the antidumping duty rates at issue here, 14.89% and 7.76% were doubled upon liquidation of the protested entries because of the application of the presumption that the protestant had been reimbursed for the antidumping duties. Per DOC liquidation instructions, number 8048112, because the protestant did not return completed Reimbursement Certificates, certifying that the importer was not being reimbursed for antidumping duties on these entries, Customs was correct in applying this presumption of reimbursement. The DOC liquidation instructions included the following paragraph:
Upon assessment of antidumping duties, customs should require that the importer provide a reimbursement statement described in Section 351.402(f) of the Commerce Department Regulations. The importer should provide the reimbursement statement prior to liquidation of the entry summary. . . . Additionally, if the importer fails to respond to your [Customs] formal request (via CF 28 or 29) for the reimbursement statement prior to liquidations, Customs should presume reimbursement and double the antidumping duties due.
(See 19 C.F.R. §351.402(f)(2)).
The Reimbursement Certificate described in §351.402(f) of the Commerce Department Regulations requires the importer to certify that it has not been reimbursed for all or part of the antidumping duties assessed. Such Reimbursement Certificates were attached to the Notices of Action, dated April 3, 1998, addressed to the importer, and placed into the protestant’s broker’s (Fritz Companies, Inc.) box at the Port of Baltimore. Section 351.402(f)(2) also requires the importer to file the Reimbursement Certificate prior to liquidation. The importer stated that it did not file the Reimbursement Certificates prior to liquidation but attached the completed forms, dated July 21, 1999 to the Request for Administrative Relief. Commerce Regulation 351.402(f)(3), provides that the Secretary of Commerce may presume from the importer’s failure to file the Reimbursement Certificate, that payment or reimbursement of the antidumping duties occurred, and thus the Secretary is required to deduct the amount of payment or reimbursement from the United States price (this amounts to a doubling of the antidumping duty) (19 C.F.R. §351.402(f)(3)).
The protestant argues that it did not file a Reimbursement Certificate because it was unaware that Customs was preparing to liquidate these entries and “hence it was ignorant of the fact that a reimbursement statement was needed” and that this ignorance was a mistake of fact. In addition, the protestant contends that its ignorance of the fact that a Reimbursement Statement was necessary “clearly fits the definition of an ignorant mistake as defined by Judge Watson in Universal Cooperatives, Inc. v. United States,” (13 CIT 516, 715 F. Supp. 1113 (1989)). In that case, the court defines the ignorant mistake as one when “a party is unaware of the existence of the correct alternative set of facts” (13 C.I.T. 516, 5; 715 F. Supp. 1113; (1989)). The protestant here was not unaware of the existence of the correct alternative set of facts. In this case there is no alternative set of facts; the protestant did not file a Reimbursement Certificate before liquidation and was aware it did not file the certificates necessary.
The protestant further explains that it did not receive the request from Customs on CF 28 or 29 for the Reimbursement Certificates and therefore, the importer “was totally ignorant of the pending liquidation and hence equally ignorant of the need to furnish a reimbursement certificate to Customs.” The protestant also contends that not receiving formal or informal notice of Customs’ need for the Reimbursement Certificates was “a departure from past practice.” Though there is no requirement that Customs give an importer notice to provide a reimbursement statement, two Customs Form 29, (CF 29), Notices of Action, dated April 3, 1998, addressed to the importer were placed into the protestant’s broker’s (Fritz Companies, Inc.) box at the Port of Baltimore. In addition, the notices published in the Federal Register also served as final reminders and warnings to the protestant that failure to file a certificate regarding the reimbursement of antidumping duties prior to liquidation could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
Commerce Department Regulation §351.402(f)(2), noted above, specifically requires the Reimbursement Certificate to be filed prior to liquidation. In this case, a Reimbursement Certificate was not filed with Customs prior to liquidation. Per HQ 227609, when double antidumping duties are assessed because no Reimbursement Certificate is timely filed the protestant has not established that the application of the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties were due to a mistake of fact, clerical error or inadvertence. Therefore, Customs was correct in deducting the amount of presumed reimbursement from the United States price, which resulted in a doubled antidumping duty. (See HQ 227609). The protested entries were correctly liquidated assessing double the antidumping duty rates as shown in the following tables:
Warehouse withdrawal entries:
Entry number:
Withdrawal number:
Entry Summary date:
Liquidation date:
Antidumping (AD) rate in effect 11/22/96:
Double AD rate assessed:
202-0
492-7
12/10/96
7/31/98
7.67%
15.34%
967-1
494-3
12/10/96
7/31/98
7.67 %
15.34%
125-3
495-0
12/10/96
7/31/98
7.67%
15.34%
013-1
490-1
12/10/96
7/10/98
7.67%
15.34%
Consumption entries
Entry number:
Entry date:
Liquidation date:
Antidumping (AD) rate in effect 11/22/96:
Double AD rate assessed:
248-2
1/19/97
7/10/98
7.67%
15.34%
645-9
2/12/97
7/10/98
7.67%
15.34%
237-4
3/18/97
7/10/98
7.67%
15.34%
239-0
3/18/97
7/10/98
7.67%
15.34%
405-7
4/3/97
7/10/98
7.67%
15.34%
949-4
4/21/97
7/10/98
7.67%
15.34%
206-8
5/5/97
7/10/98
7.67%
15.34%
485-8
5/20/97
7/10/98
7.67%
15.34%
The protestant has not presented any support for the position that the presumption should not be applied in this case. The mere assertion that ultimately a Reimbursement Certificate was completed is insufficient to defeat the presumption in the regulation. Even if Customs were to take the position that the presumption should not have been applied, the protestant has not established that the application of the presumption was due to a mistake of fact, clerical error or inadvertence, and thus correctable under §1520(c). The cause of the assessment of double antidumping duties was not due to a mistake of fact, clerical error or inadvertence, but the lack of a timely filed Reimbursement Certificate. At no time prior to liquidation did the protestant believe there was filed or instruct another to file, a Reimbursement Certificate. Nor was there a time when the protestant did not have notice that it was necessary to file a Reimbursement Certificate for these entries. (See HQ 227609).
Regarding consumption entry number 308-8, the protestant essentially alleges that the amount of antidumping duties assessed was quadruple the correct amount and is “a clear clerical error in calculation” because “there is no legally cognizable reason for the assessment of quadruple antidumping duties.” Hence, Universal reasons that the amount of antidumping duties assessed upon liquidation of entry number 308-8 is clerical error and “properly correctable under 19 U.S.C. §1520(c)(1).” There was no clerical error in calculation applicable to the liquidation of entry number 308-8; the protestant is mistaken about the deposit rate in effect on the date of entry, and thus miscalculated the doubled antidumping duty rate applicable. Entry number 308-8 was entered on October 8, 1996 and was subject to an antidumping rate of 14.89%. Therefore, when that rate was properly doubled, because no Reimbursement Certificate was filed, this entry was properly assessed an antidumping duty rate of 29.78%.
Consumption entry
Entry number:
Entry date:
Liquidation date:
Antidumping (AD) rate in effect from 10/2/96 to 11/22/96
Double AD rate assessed:
308-8
10/08/96
7/31/98
14.89%
29.78%
Finally, the protestant claims that since the additional antidumping duties were assessed in error, the interest imposed is an error correctable per §1520(c)(1). It has already been established that the antidumping duties assessed at liquidation on the protested entries were correct and not due to “a clerical error, mistake of fact, or other inadvertence.” It follows that in order to be correctable per §1520(c)(1) the interest assessed on the protested entries at liquidation would have to be due to “a clerical error, mistake of fact, or other inadvertence,” not amounting to an error in the construction of a law. Further, the error must be adverse to the importer and manifest from the record or established by documentary evidence.
The DOC liquidation instructions state: “The assessment of antidumping duties by the Customs Service on entries of this merchandise is subject to the provisions of §778 of the Tariff Act of 1930.” Section 778 of the Tariff Act, as amended 19 U.S.C. §1677g(a), provides that “interest shall be payable on . . . underpayments of amounts deposited on merchandise entered, or withdrawn from warehouse, for consumption on and after(” the date of an antidumping order. “Thus, §1677g(a) requires payment of interest on the difference between deposited amounts of estimated duties and final assessed duties” (Timken Co. v. U.S. 37 F.3d 1470 (Fed. Cir. 1994).
In the instant protest, since twice the antidumping duties collected at the deposit rate were assessed at liquidation, the antidumping duty deposited by the protestant upon entry and removal from warehouse of the TRBs, was underpaid by half. Therefore, the interest assessed was calculated on the difference between the antidumping duty paid at the time of entry (for consumption entries), the time of withdrawal from warehouse (for warehouse entries), and the date of liquidation for these entries per 19 U.S.C. §1677g(a). In addition, the date of the antidumping duty order for this case, A-485-602 is June 19, 1987 and all the protested entries were liquidated after this date. Therefore, the interest on the instant protested entries was correctly assessed per 19 U.S.C. §1677g(a), which requires interest to be paid on underpayments of antidumping duties deposited on merchandise entered, or withdrawn from warehouse, for consumption on and after the date of an antidumping order.
HOLDING:
The assessment of antidumping duties at twice the effective cash deposit rate and the imposition of interest on the 13 protested entries was not due to a clerical error, mistake of fact, or other inadvertence, and is therefore not correctable under 19 U.S.C. §1520(c)(1).
The protest is therefore DENIED.
In accordance with § 3A (11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the public via the Customs Home Page on the World Wide Web, the Freedom of Information Act, and other public distribution channels.
Sincerely,
John Durant, Director
Commercial Rulings Division