LIQ-9-01-CO:R:C:E 222993 PH
District Director of Customs
Buffalo, New York 14202
RE: Application for Further Review of Protest No. 0901-90-
750084; Clerical Error, Mistake of Fact, or Other
Inadvertence; Construction of Law; 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 by your
office and the protestant. Our decision follows.
FACTS:
According to the file, between February 8, 1989, and August
23, 1989, the protestant entered various kinds of merchandise,
indicated to be automotive goods, under subheadings 8483.90.80,
3926.90.9050, 8708.99.5090, 4016.99.50, 8708.99.50, and
7007.11.0000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). Twelve (12) such entries are involved in
this protest. The entries were liquidated between February 23,
1989, and November 24, 1989.
On February 15, 1990, the broker of the protestant filed a
request that the entries be reliquidated under 19 U.S.C.
1520(c)(1) because the merchandise was eligible for preferential
duty treatment under the provisions of the United States-Canada
Free-Trade Agreement (FTA). According to the broker, "... no
duty preference was claimed at the time of entry because it was
not known that the articles were of Canadian origin as defined in
... the FTZ." The broker stated that properly executed
Exporter's Certificates of Origin (CF 353's) were enclosed with
the 19 U.S.C. 1520(c)(1) request. Citing Customs Telex 00732
(U.S./Canadian Free Trade Agreement - Fact Sheet 7) and C.J.
Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17,
336 F. Supp. 1395, C.D. 4237 (1972), aff'd, 61 CCPA 90, C.A.D.
1129, 499 F. 2d 1277 (1974), the broker contended that "failure
to claim preferential duty treatment under the FTA at the time of
entry was the result of a mistake of fact correctable under 19
U.S.C. 1520(c)(1)."
The protestant's request for reliquidation was denied on
April 2, 1990, on the basis that the claim was not correctable
under 19 U.S.C. 1520(c)(1) because the error which was claimed to
be the basis of the request "... involve[d] the construction of
law." On May 11, 1990, the protestant filed the protest under
consideration and applied for further review. The basis for the
protest was the same as that stated in the initial request for
reliquidation under 19 U.S.C. 1520(c)(1), described above.
In further support of its protest, the protestant stated that
Customs in Detroit approved a request for reliquidation under 19
U.S.C. 1520(c)(1) in identical circumstances. The protestant
stated that it was enclosing a copy of Customs approval notice in
that case but, according to the Customs Protest and Summons
Information Report (CF 6445A), no such notice was received by
Customs, nor is any such document in the file. The protest was
forwarded for further review on September 28, 1990.
ISSUE:
In this case, as described in the FACTS portion of this
ruling, was the failure of the protestant to claim preferential
duty treatment under the FTA a clerical error, mistake of fact,
or other inadvertence for which relief may be granted under 19
U.S.C. 1520(c)(1)?
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. In this
regard, however, we note that one of the entries protested was
liquidated on November 24, 1989. Therefore, the request for
reliquidation under 19 U.S.C. 1520(c)(1), received by Customs on
February 16, 1989, was filed within the 90 days provided for the
filing of a protest under 19 U.S.C. 1514. The Courts have held
that a request for reliquidation under 19 U.S.C. 1520(c)(1) is
sufficient as a protest under 19 U.S.C. 1514 if it conveys enough
information to apprise Customs of the importer's intent and the
relief sought and if it is timely (see Mattel, Inc. v. United
States, 72 Cust. Ct. 257, C.D. 4547, 377 F. Supp. 955 (1974, and
Labay International, Inc., v. United States, 83 Cust. Ct. 152,
C.D. 4834). Accordingly, with regard to this entry only, if a
properly executed certificate of origin has been provided for the
merchandise in this entry which clearly identifies the goods for
which FTA preference is being sought (see Customs Telex 00732
(U.S./Canadian Free Trade Agreement - Fact Sheet 7)), the request
for reliquidation under 19 U.S.C. 1520(c)(1) is treated as a
protest under 19 U.S.C. 1514 and is granted. (Although the file
contains Certificates of Origin purporting to relate to the entry
liquidated on November 24, 1989, the material available to us in
the file does not clearly identify the goods for which FTA
preference is sought. We understand that your file may contain
additional materials which should be reviewed in this regard.)
Such relief may not be granted with regard to the other entries
included within this protest because the request for
reliquidation under 19 U.S.C. 1520(c)(1) was not received within
the 90-day protest period as to those entries (see Computime,
Inc. v. United States, 9 CIT 553, 556, 622 F. Supp. 1086 (1985)).
Since the request for reliquidation under 19 U.S.C.
1520(c)(1) was not received within the 90-day protest period with
regard to the other entries which are covered by this protest,
the protestant must establish that its request for reliquidation
under 19 U.S.C. 1520(c)(1) should have been granted. Under
section 520(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. These conditions 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.
Even if we assume that the merchandise under consideration
qualifies for preferential duty treatment under the FTA, the
requirements and conditions in 19 U.S.C. 1520(c)(1) must still be
met. (In this regard we note that the materials in the file do
not appear to clearly demonstrate that all of the merchandise
qualifies for such treatment under the FTA; see Telex 00732,
cited above, which states that although subsequently filed claims
for FTZ treatment may be allowed under 19 U.S.C. 1514 and
1520(c)(1), the certificate of origin for the merchandise "must
clearly identify the goods for which FTA preference is being
claimed.")
One of the requirements under section 1520(c)(1) is that the
clerical error, mistake of fact, or other inadvertence which is
the basis for the request for relief may not amount to an error
in the construction of law. A mistake of law, for which relief
cannot be had under section 1520(c)(1), has been defined to exist
"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), quoting 58 C.J.S.
Mistake, section 832; and C.J. Tower & Sons of Buffalo, Inc. v.
United States (cited above)).
In the February 15, 1990, request for relief under 19 U.S.C.
1520(c)(1), the protestant stated that no duty preference was
claimed at the time of entry because it was not known that the
articles were of Canadian origin as defined in Article 301 of the
FTA. In the protest, the protestant stated that relief should
have been granted because "the importer of record did not
originally know the fact that the merchandise was entitled to
preferential duty treatment under the FTA until the necessary
research was completed to establish a fact which was originally
unknown." (Emphasis in original.) We note that under the
definition of a mistake of law, set forth above, the entitlement
of merchandise for preferential duty treatment under the FTA
would be a legal consequence, and not a fact. (With regard to
the case of C. J. Tower & Sons, cited above and by the
protestant, see subsequent cases distinguishing that case (i.e.,
Concentric Pumps, Ltd. v. United States, 10 CIT 505, 643 F. Supp.
623 (1986), and NEC Electronics U.S. A. Inc. v. United States, 13
CIT 214, 709 F. Supp. 1171 (1989).)
Even if the allegation in the request for relief that it was
not known that the articles were of Canadian origin is considered
to be an allegation of a mistake of fact, the record available to
us does not make manifest the clerical error, mistake of fact, or
other inadvertence, nor is it established by documentary
evidence, as required by 19 U.S.C. 1520(c)(1). According to the
Court in PPG Industries, Inc. v. United States, 4 CIT 143 (1982),
quoting, in part, from the lower court in Hambro (cited above)
(Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31,
C.D. 4761, 458 F. Supp. 1220 (1978)):
... it is incumbent on the plaintiff to show by
sufficient evidence the nature of the mistake of
fact. The burden and duty is upon the plaintiff
to inform the appropriate Customs official of the
alleged mistake with "sufficient particularity to
allow remedial action." [4 CIT at 147-148; see
also, 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."]
In this case there is no evidence on the claimed clerical
error, mistake of fact, or other inadvertence other than the
statements by the protestant's representative in the request for
reliquidation and the protest (described above) (see Bar Bea
Truck Leasing Co., Inc., v. United States, 5 CIT 124, 126 (1983),
with regard to the sufficiency as evidence of a counsel's
unsupported assertions). There is no explanation of what facts
would have, if known, resulted in the protestant claiming
preferential duty treatment under the FTA, or of when those
facts, if any, became known to the protestant (according to the
Court in the Concentric Pumps case, ignorance of the existence of
a specific item in the Tariff Schedule is not the kind of mistake
which may be corrected under 19 U.S.C. 1520(c)(1), nor was that
contemplated in the C. J. Tower & Sons case (see 643 F. Supp. at
625); for the significance of when the facts became known to the
protestant, see the C. J. Tower & Sons case). There is no
affidavit by an appropriate employee of the protestant and/or
manufacturer or foreign exporter as to the facts of the claimed
clerical error, mistake of fact, or other inadvertence (for an
example of the use of such evidence, see C.S.D. 89-87).
As to the allegation by the protestant that Customs in
Detroit approved a request for reliquidation under 19 U.S.C.
1520(c)(1) in identical circumstances, we are unable to comment
on that allegation without reviewing that case and the materials
associated with it (we note that documentation relating to the
alleged request for reliquidation is not in the file and that you
stated such documentation was not received with the protest).
Even if this is true, we do not accept the proposition that a
decision by a Customs district director governs all similar
requests for reliquidation under 19 U.S.C. 1520(c)(1) or
protests. As explained above, we do not believe that there was
authority for granting the request for reliquidation in this case
(except as to the entry for which the request for reliquidation
was received by Customs within the 90-day protest period, see
above).
HOLDING:
The failure of the protestant to claim preferential duty
treatment under the FTA, as described in the FACTS portion of
this ruling, was not a clerical error, mistake of fact, or other
inadvertence for which relief may be granted under 19 U.S.C.
1520(c)(1). The Protest/Application for Further Relief is DENIED
except with regard to the entry liquidated on November 24, 1989,
which is GRANTED as timely filed under 19 U.S.C. 1514, provided
that the certificate of origin provided for the merchandise in
this entry clearly identifies the goods for which preferential
duty treatment under the FTA was sought.
The protest is DENIED, in part, and GRANTED, in part. A
copy of this decision should be attached to the Form 19 and
provided to the protetant as part of the notice of action on the
protest.
Sincerely,
John Durant, Director
Commercial Rulings Division