LIQ-9-01-CO:R:C:E 222895 TLS
Regional Commissioner
U.S. Customs Service
c/o Protest and Control Section
6 World Trade Center Rm. 762
New York, New York 10048-0945
RE: Further review of protest #1001-0-003421; claim for
reliquidation under 19 U.S.C. 1520(c)(1); misclassification of
merchandise on entry documents by broker.
Dear Sir:
The above-referenced protest has been forwarded to this
office for further review. We have considered the points raised
by the protestant and your office. Our decision follows.
FACTS:
The protestant entered merchandise through three separate
entries on February 10 through 13, 1989. These entries were
liquidated on March 17, 1989. The goods were classified on the
entry documents under subheading 4202.32.20 of the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) as other
containers with an outer surface of plastic sheeting. Under this
subheading, the goods carry a 20% duty rate. The importer
contends that the correct classification of this merchandise is
under 3923.10.00 of HTSUSA as cases of plastic and similar
articles. Under such classification, the merchandise is dutiable
at a 3% rate.
The importer initiated a claim on one of the entries under
19 U.S.C. 1520(c)(1) to correct what it saw as a
misclassification of the merchandise. In particular, the
protestant claimed that the broker and Customs officials were not
aware of all of the facts necessary to make a proper
determination on the classification of the goods. The claim was
dated December 20, 1989, which is within one year of the entry
date, but more than 90 days after the liquidation date. The
claim was denied on February 2, 1990 because Customs saw the
error as a mistake in the application of the law, not a mistake
correctable under section 520(c)(1). Customs officials
maintained that there existed no basis for requesting the lower
rate of duty because Customs had not ruled on the proper legal
classification until after these goods had been liquidated.
ISSUE:
Whether the broker's lack of knowledge of all the pertinent
facts is sufficient to support a claim of mistake of fact under
19 U.S.C. 1520(c)(1) even though the importer of record was
apparently aware of the necessary facts.
LAW AND ANALYSIS:
Under section 520(c)(1) of the Tariff Act of 1930, the
following is provided for:
(c) Notwithstanding a valid protest was not filed, the
appropriate customs officer may, in accordance with
regulations prescribed by the Secretary, 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;... (emphasis added.)
The protestant contends that the broker and Customs officials
acted on the erroneous belief that the goods were made of plastic
sheeting and did not know they were manufactured by the injection
mold method. No evidence has been submitted to support its
position, however. The importer cites to T.D. 54848 (1959) to
support the proposition that the alleged misclassification is not
an error in the construction of law. It maintains that the true
facts must be known before such an error occurs. This argument
presupposes that the true facts were not known.
With regard to the Customs officials' knowledge, or lack
thereof, the Customs Court has ruled on the issue. It has been
held that a determination by customs officers as to the
classification of merchandise is a conclusion of law, and an
erroneous classification of merchandise by the District Director
is not a mistake correctable under section 520(c)(1). Mattel,
Inc. v. United States, 72 Cust. Ct. 257, 262, 377 F. Supp. 955,
C.D. 4547 (1974). The court went on to hold that such errors can
only be remedied by filing a protest under 19 U.S.C. 1514 within
60 days after liquidation. Id.; Fibrous Glass Products, Inc. v.
United States, 63 Cust. Ct. 62, C.D. 3874 (1969), appeal
dismissed, 57 C.C.P.A. 141 (1970); United China & Glass Co. v.
United States, 66 Cust. Ct. 207, 211, C.D. 4191 (1971). Thus,
even assuming there is a misclassification here on Customs part,
it does not constitute a mistake correctable under 520(c)(1).
As noted above, the subject protest was not filed within 90
days after liquidation in this case. Consequently, the importer
does not have the option of sustaining a claim under section 514
of the Tariff Act. Of course, the importer has also claimed a
mistake was made under 520(c)(1) because the broker was not aware
of all the pertinent facts. This claim is based upon the Customs
ruling that held plastic compact and lipstick cases made of
plastic sheeting (the subject merchandise in this case) to be
classifiable under HTSUSA subheading 3923.10.00 as articles for
the conveyance or packing of goods, of plastic, boxes, cases,
crates and similar articles. Customs ruling HQ 083122 (June 12,
1989). Of significant note is the date of the ruling; it was
issued almost three months after the liquidation date of March
17, 1989. Obviously, HQ 083122 was not in effect at the time of
liquidation. Therefore, the ruling could not possibly have any
bearing on the importer's (or broker's) classification decision
in this case. See, e.g., Customs ruling HQ 722299 (June 24,
1983).
Given that there existed no legal classification decision on
the subject merchandise at the time of liquidation, it cannot be
said that there was a mistake of fact in this case. As noted
above, if there is a misclassification here, it was a mistake in
the conclusion of law, which not correctable under section 520.
Mattel, Inc. v. United States, supra. The protestant has not put
forth any evidence of a mistake of fact other than legal
counsel's assertion that one was made. It has been documented
and noted that the protestant's claims under section 520(c) have
generally been approved when submitted to Customs Los Angeles
port, as opposed to the claims submitted to Customs New York
port, which have generally been denied. We do not find any
relevance these data might have with the present case, however.
The findings here are based on the facts and evidence presented
pertaining to this case, along with the application of the
relevant law. The CIT has ruled that mere assertions by a
complainant without supporting evidence will not be regarded as
sufficient to overturn a Customs official's decision. Bar Bea
Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983).
Therefore, notwithstanding the broker's alleged lack of
knowledge, neither the importer nor the broker made a mistake of
fact correctable under 19 U.S.C. 1520(c)(1).
HOLDING:
To the extent that a mistake was made in the classification
decision in this case, it is a mistake in the construction of the
law and as such is not a mistake of fact correctable under 19
U.S.C. 1520(c)(1). Accordingly, this protest should be denied in
full. A Form 19, Notice of Action, should be attached to this
ruling to be sent to the protestant.
Sincerely,
John Durant, Director