PRO-2-01-CO:R:C:E 223999 SLR
District Director of Customs
200 East Bay St
Charleston, SC 29401-2611
RE: Protest No. 1601-91-200117; Refusal to Refund Voluntary
Tenders; Estimated Antidumping and Countervailing Duties;
19 U.S.C. 1514(a)(3); 19 U.S.C. 1514(a)(5); 19 U.S.C.
1520(a)(2); 19 U.S.C. 1520(c)(1)
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have examined its contents and our
decision follows.
FACTS:
This protest involves eleven entries made on behalf of the
protestant, Thermacote-Welco, between August 1985 and March 1986.
The entries were liquidated between October 1985 and March 1988.
Each of the entries in question included low fuming brazing
rod (LFB) from New Zealand which was subject variously to
suspension of liquidation or outstanding orders in antidumping
and countervailing duty cases taken against LFB from New Zealand.
However, the entries were processed without a deposit of the
antidumping and countervailing duty estimated amounts.
Subsequently, Customs, by telephone, requested the voluntary
tenders of these deposits. Voluntary tenders were made by the
protestant's broker with the understanding that the entries were
still open. Most of the entries, however, had already been
liquidated.
In a letter dated April 5, 1991, your office informed the
protestant that it had no authority to process the eleven entries
for a refund of the voluntary tenders. On July 3, 1991, the
subject protest was filed against this decision.
Inasmuch as the liquidations occurred a number of years ago,
it is your position that neither a protest nor a 520(c)
application would be timely. The protestant maintains that
the liquidation dates are irrelevant as they not only preceded
the deposit dates, but did not include any amount for antidumping
or countervailing duties. The protestant argues that even under
-2-
520(c), the date from which the right to request the correction
of a clerical error runs from the date of exaction. It submits
that the date of exaction here is the date upon which it was
advised of the port's decision not to refund the monies, i.e.,
April 5, 1991.
In the alternative, the protestant maintains that the refund
of the monies is clearly within the ambit of 520(a)(2) which has
no time limits and allows for the refund of fees, charges, or
exactions, other than duties and taxes, erroneously or
excessively collected.
ISSUE:
Is a refund due the protestant?
LAW AND ANALYSIS:
Our office concurs with your position that no authority
exists for the processing of the voluntary tenders for a refund.
Consequently, this protest should be denied.
Our records indicate that for one of the eleven entries,
the voluntary tender of estimated antidumping and countervailing
duties occurred prior to the liquidation of that entry. Under
section 514(a)(5) of the Tariff Act of 1930, as amended
(19 U.S.C. 1514(a)(5)), an importer may challenge the liquidation
of an entry by filing a protest. The protest, however, must be
in writing and must be filed within 90 days after the notice of
liquidation. Here, no protest was filed within the 90-day
protest period. Consequently, with respect to this entry,
the instant protest is untimely filed.
Our records further indicate that for at least three of the
remaining entries, voluntary tenders occurred after liquidation
but within the 90-day protest period; the remainder of the
voluntary tenders were made beyond the protest period.
Under 19 U.S.C. 1514(a)(3), "all charges or exactions of whatever
character within the jurisdiction of the Secretary of the
Treasury" are protestable. The protest, however, must be in
writing and must be filed within 90 days from the date of the
decision as to which the protest is made.
The request for voluntary tenders in this case did not
amount to a "charge or exaction." To constitute an exaction
under 1514(a)(3), there would have had to have been some
compulsion on the part of Customs requiring the payment of
monies. Carlingswitch, Inc. v. United States, 85 Cust Ct. 63,
C.D. 4873, 500 F. Supp. 223 (1980), aff'd, 68 CCPA 49, C.A.D.
1264, 651 F.2d 768 (1981). This did not occur here. Customs
merely requested voluntary payments. No penalty was asserted
against the broker and there was no demand for payments.
-3-
Section 520(a)(2) of the Tariff Act of 1930, as amended
(19 U.S.C. 1520(a)(2)), provides for the refund of fees,
charges, or exactions, other than duties or taxes, excessively
collected. As discussed, the voluntary tenders did not amount
to exactions. Consequently, there can be no refund under
520(a)(2).
Section 520(c)(1) of the Tariff Act of 1930, as amended
(19 U.S.C. 1520(c)(1)), provides that notwithstanding a valid
protest not filed, a Customs officer may reliquidate an entry
for clerical error, mistake of fact, or other inadvertence not
amounting to an error in the construction of law, as long as the
error is adverse to the importer, manifest from the record, and
is brought to the attention of the appropriate Customs officer
within one year after the date of the liquidation or exaction.
Because there was no exaction, the time to challenge the alleged
errors would run from the dates of liquidation. As no mistake of
fact or error was brought to the attention of Customs within one
year of the liquidations, no relief is in order under 520(c)(1).
HOLDING:
Based on the foregoing, the instant protest is denied
in full. A copy of this decision should be attached to the
Customs Form 19 and mailed to the protestant as part of the
notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division