LIQ--4-01-9-01-CO:R:C:E 223160 SR
District Director of Customs
101 East Main Street
Norfolk, VA. 23510
RE: Application for Further Review of Protest
No. 1401-90-000158; Erroneous liquidation during Countervailing
Duty (CVD) Investigation; 19 U.S.C. 1520(c)(1); Mistake of fact.
Dear Sir:
The above-referenced protest was forwarded to our office on
Application for Further Review of Protest No. 1401-90-000158,
dated February 20, 1991. We have considered the facts and the
issue raised; our decision follows.
FACTS:
Stainless steel wire rod was imported from Spain in July,
1988. Customs liquidated the entries on August 19, 1988. The
Customs Import Specialist who liquidated the merchandise was not
aware that there was an outstanding countervailing duty case.
The Broker for the importer requested reliquidation of the
entries on March 22, 1989. The District denied reliquidation on
December 27, 1989, for the reason that the error involved a
construction of law and couldn't be reliquidated under 19 U.S.C.
1520(c)(1). The protest was filed on March 5, 1990. The
protestant argues that the entries were liquidated due to
inadvertence or mistake of fact and should be reliquidated under
19 U.S.C. 1520(c)(1).
ISSUE:
Whether the merchandise at issue should be reliquidated
under 19 U.S.C. 1520(c)(1).
LAW AND ANALYSIS:
19 U.S.C. 1520(c)(1) provides as follows:
(c) Notwithstanding a valid protest was not filed, the
appropriate customs officer may, in accordance with -2-
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 a 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.
In order to bring a claim under 19 U.S.C. 1520(c)(1), the
mistake made must be one of fact not a mistake of law. These
terms are defined in C.J. Tower & Sons of Buffalo, Inc. v. United
States, 68 Cust. Ct. 17, C.D. 4327, 336 F.Supp. 1395 (1972),
aff'd 499 F.2d 1277, 61 CCPA 90, C.A.D. 1129 (1974). A mistake
of fact is defined as any mistake except a mistake of law; a
mistake which takes place when some fact which indeed exists is
unknown, or a fact which is thought to exist, which in reality
does not exist. 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. In the case at issue the
Customs officer was unaware of the fact that a Countervailing
Duty case was in existence for stainless steel wire rod. This is
a mistake of fact. Therefore, a claim under 19 U.S.C. 1520(c)(1)
is appropriate.
The protestant did request reliquidation within a year. The
language of 1520(c)(1) states "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- a mistake of fact . . . brought to the
attention of the appropriate customs officer within one year
after the date of liquidation or exaction." The importer in
this case requested reliquidation six months after the
merchandise was liquidated. This request for reliquidation
should have been granted. The notice of the mistake was brought
to the attention of Customs as required by the statute.
19 U.S.C. 1520(c)(1) is for the protection of importers. As
stated in C.J. Tower & Sons of Buffalo, Inc., v. United States,
supra, one of the purposes in authorizing reliquidation of an
entry to correct a clerical error, mistake of fact, or other
inadvertence not amounting to an error in construction of a law
is to eliminate certain unnecessary annoyances and inequities
which plague both government and private parties engaged in the
import-export business.
-3-
HOLDING:
The Customs officer that liquidated the merchandise on
August 19, 1988, was unaware that there was a countervailing duty
case pending. This is a mistake of fact under 19 U.S.C.
1520(c)(1). The importer brought the error to the attention of
the Customs Service within a year after the date of the
liquidation by filing a request for reliquidation.
Accordingly you are directed allow the protest. A copy of
this decision should be furnished to the protestant in order to
satisfy the notice requirement of section 174.30(a), Customs
Regulations. Countervailing duties should be refunded.
Sincerely,
John A. Durant
Director
Commercial Rulings Division