LIQ-9-01-CO:R:C:E 222610 CB
Regional Commissioner
U.S. Customs Service
Suite 1501
55 East Monroe Street
Chicago, ILL 60603-5790
RE: Application for further review of Protest No. 3303-8-
000066 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:
Protestant is seeking reliquidation of the subject entries
under 19 U.S.C. 1520(c)(1) and is alleging a mistake of fact in
the classification of the merchandise.
It appears from the file that certain plastic articles
assembled in El Salvador mostly from American goods were entered
free under the Generalized System of Preferences (GSP). The
merchandise at issue are dialysis kits consisting of blood
transfer packs, drainage sets, intravenous infusion sets, cycler
sets, and injection sites. The Import Specialist found the
merchandise not to be eligible for GSP and assessed duty at 7.9
percent under item 709.27, TSUS. Almost one year after the date
of liquidation, the importer filed a request for reliquidation
under 19 U.S.C. 1520(c)(1) disputing the Import Specialist's
classification. Additionally, the protestant claims the
merchandise qualifies for Caribbean Basin Initiative (CBI)
treatment instead of GSP and has submitted corrected figures on
the form "A". The protestant claims that the liquidation of the
entry for duty was a mistake of fact because all of the relevant
information was not available at the time of liquidation.
According to protestant, at the time of entry, the Import
Specialist was not aware of a Headquarters Ruling classifying
similar merchandise under the TSUS item number claimed by
protestant. Herein lies protestant's claim of a mistake of fact.
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Protestant has also stated that samples of the merchandise were
never presented to the Import Specialist. Protestant believes
that had the Import Specialist seen the merchandise together with
an explanation of its use, the items would have been classified
under the item number claimed by protestant. The protestant
agrees with the classification of the intravenous infusion sets
but, disagrees with the classification of the rest of the
merchadnise. The file indicates that the protestant was given an
opportunity to furnish additional information. However, when the
requested information was not furnished, the Import Specialist
classified the merchandise on the basis of the available
information.
Regarding the CBI/GSP claim, protestant claims that through
inadvertence the form "A" used was not properly annotated to
reflect CBI eligibility. Protestant alleges that it has proven
that all of the merchandise, except for one item, qualifies for
CBI treatment.
ISSUES:
1) Whether relief may be granted under 19 U.S.C. 1520
(c)(1) to correct an alleged error in the classification of
merchandise?
2) Whether the denial of GSP/CBI treatment was a mistake of
fact or law?
LAW AND ANALYSIS:
Section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514
(1982)), sets forth the proper procedure for an importer to
protest the classification and appraisal of merchandise when it
believes the Customs Service has misinterpreted the applicable
law. A protest must be filed within ninety days after notice of
liquidation or reliquidation. Otherwise, the tariff treatment of
merchandise is final and conclusive.
Section 520, Tariff Act of 1930, as amended (19 U.S.
C. 1520(c)(1)), is an exception to the finality of 514. An entry
may be reliquidated to correct a clerical error, mistake of fact,
or other inadvertence if it does not amount to an error in the
construction of law; is adverse to the importer; is manifest from
the record or established by documentary evidence. As stated by
the Court of International Trade in United States Steel
Corporation, et al v. United States, et al, 7 Ct. Int'l Trade
118, 124 (1984), three conditions must be satisfied
under 1520(c)(1):
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1. A mistake of fact must exist;
2. The mistake of fact 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.
However, 1520(c)(1) cannot be used to correct all mistakes, it
offers limited relief in certain situations.
Issue #1
Protestant alleges that the subject merchandise was
erroneously classified due to a mistake of fact. A mistake of
fact has been defined by the courts as any mistake except a
mistake of law. It is a mistake which takes place when a fact
which 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, C.D. 4327, 336 F. Supp. 1395
(1972), aff'd sub nom., United States v. C.J. Tower & Sons of
Buffalo, Inc., 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974).
The courts have consistently taken the position that an erroneous
classification of merchandise is not a clerical error, mistake of
fact, or inadvertence , but it is an error in the construction of
a law. See, Mattel Inc. v. United States, 377 F. Supp. 955, 72
Cust. Ct. 257, C.D. 4547 (1974); and C.J. Tower & Sons of
Buffalo, Inc. v. United States, 336 F. Supp. 1395, 68 Cust. Ct.
17, C.D. 4327, aff'd, 499 F.2d 1277, 61 C.C.P.A. 90 (1972). A
presumption of correctness exists in favor of Customs
classification and the importer has the burden to proof
otherwise. PPG Industries, Inc. v. United States, 4 Ct. Int'l
Trade 143, 147 (1982)
In the instant case, we must separate the merchandise to
determine whether classification resulted in a mistake of law or
fact. Regarding the cycler sets and drainage sets, it is Customs
position that protestant is entitled to reliquidation. The
Customs Service has previously ruled that certain classification
errors may be corrected under 1520(c)(1). HQ Ruling 75-0026,
issued January 24, 1975, indicates that reliquidation is proper
when a Customs officer is not aware of a classification ruling.
The same holds true for court decisions. In Terumo Corp. v.
United States, 10 Ct. Int'l Trade 116 (1986), the court held that
medical dialysis machines were classifiable under item 709.17,
TSUS. This holding was expanded in HQ 076777, issued July 22,
1986, to include parts of dialysis machines. Therefore, the
subject entries should be reliquidated.
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The same does not apply to the blood transfer packs,
infusion sets and injection sites. Protestant does not contest
the classification of the infusion sets. However, protestant
does allege that the blood transfer packs and injections sites
should have been classified in item 774.60, TSUS, pursuant to HQ
048594, issued April 7, 1976. Protestant's reliance on said
ruling is unfounded. It has been clearly established that
rulings issued by Headquarters are applicable only to the
particular transaction described therein. 19 C.F.R. Part 177.9.
Previous rulings are not determinative of classification but
rather, merely persuasive. As previously discussed,
classification of merchandise is not a clerical error, mistake of
fact, or inadvertence. The proper avenue of relief for errors
regarding the classification of merchandise is under 19
U.S.C. 1514. Protestant should have filed its protest within
ninety (90) days after liquidation.
Issue #2
The file reflects that GSP treatment was claimed at the time
of entry. However, protestant is now alleging that the subject
merchandise qualifies for CBI treatment. The use of Form A was
disallowed because it was merely an assembly operation in El
Salvador. The evidence shows that the value information
submitted to Customs was reviewed before the disallowance of GSP
treatment. The importer was given an opportunity to submit
additional information but none was forthcoming. Liquidation
occurred after the importer failed to provide additional
information.
We agree that, under the available evidence, the denial of
GSP treatment was a legal determination and is not correctable
under 19 U.S.C. 1520(c)(1). The Customs Service has previously
addressed the issue of an importer's failure to provide
additional information. In C.S.D. 80-250, Customs determined
that the failure of the importer to respond to Customs request
for additional information amounted to negligent inaction, and
therefore, did not fall within the meaning of 1520(c)(1). This
conclusion has been upheld by the courts. In Occidental Oil &
Gas Co. v. United States, 23 Cus. Bul. & Dec. No. 17 p. 40, Slip
Op. No. 89-40 (CIT 1989), the court held that an importer's delay
in forwarding additional information is not an inadvertence or
mistake within the scope of 1520(c)(1). The court found that the
record showed that the appropriate documents supporting the claim
had not been supplied, and therefore, the Customs officer had
made a legal determination as to the classification. We see no
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reason to reach a different conclusion in the instant case.
Protestant was given an opportunity to supply additional
information but failed to do so. Otherwise, protestant had
ninety (90) days to protest after liquidation under 19
U.S.C. 1514.
HOLDING:
The subject protest should be admitted with respect to the
cycler sets and the drainage sets. This protest should be denied
with respect to the injection sets and the blood transfer packs.
Since protestant is not contesting the classification of the
infusion sets, we are not issuing a decision with respect to that
merchandise.
Sincerely,
John Durant, Director
Commercial Rulings Division