LIQ-9-01-CO:R:C:E 224047 PH
District Director of Customs
St. Louis, Missouri 63105
RE: Application for Further Review of Protest No. 4503-92-
100008; 68 Cust. Ct. 17, C.D. 4327, 61 CCPA 90, C.A.D. 1129;
Emergency War Material; Untimely Certificates; Subheading
9808.00.30, HTSUSA; 19 U.S.C. 1514; 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.
The representative of the protestant (Peter D. Ehrenhaft,
Esq.) met on October 27, 1992, with representatives of this
Office to discuss this case. After that meeting, Mr. Ehrenhaft
forwarded additional remarks on the subject protest. A copy of
those remarks (made in a November 3, 1992, letter) is enclosed
for your records.
FACTS:
According to the file, between November 6, 1989, and August
31, 1990, the protestant entered certain components for
incorporation into systems which the protestant had contracted to
provide to another company under that company's "prime contract"
with the United States Army. The components were entered under
subheading 9808.00.30, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for duty-free treatment
of articles for United States military departments which are
certified to the Commissioner of Customs by the authorized
procuring agencies to be emergency war material purchased abroad.
According to the protestant, "[a]t all relevant times, all of the
parties concerned knew -- indeed, specified -- that no Customs
duties should be due or paid on these imports, since [the
protestant] imported these components to be used solely for U.S.
military procurement purposes." The protestant also states that
it "knew what was required under the law to obtain such duty-
free treatment, including the submission of duty-free
certificates."
According to the protestant (the FACTS described in this and
the following paragraphs through the paragraph beginning on page
2 and ending on page 3 of this ruling are based on the allega-
tions and/or submissions of the protestant), the responsible
employee of the protestant corresponded in late 1988 and early
1989 with the primary contractor to provide certain information
related to the obtaining of the duty-free certificates. That
employee understood that the primary contractor would provide
this information to the Army which would authorize the duty-free
treatment. The employee also directed (by memorandum of December
16, 1988) another employee of the protestant (the sub-contract
manager for the involved project) to provide instructions to
foreign vendors to include a statement in all shipping documents
that their goods were eligible for duty-free treatment and to
request the District Director of Customs to notify the
protestant's broker for execution of any required duty-free
certificates. The employee understood that the broker, upon such
notification, would obtain and submit to Customs on behalf of the
protestant any necessary duty-free certificates. Two other
employees of the protestant also understood that the broker was
primarily responsible for obtaining and submitting to Customs all
necessary documents and certificates, including the duty-free
certificates.
One of these other employees, described as an international
traffic agent primarily responsible for supervising international
shipments on a day-to-day basis, became aware in May of 1990 that
there were problems relating to the duty-free entry of the
merchandise. This employee learned that the protestant must
obtain duty-free treatment of the goods through the primary
contractor. The employee immediately communicated with an
employee of the primary contractor who instructed her to send him
any requests for duty-free treatment and any other necessary
information. Thereafter, the protestant's employee called the
employee of the primary contractor "periodically" to see that the
primary contractor was doing everything possible in regard to the
obtaining of duty-free treatment. In October of 1990, the
employee of the primary contractor provided the protestant's
employee with copies of memorandums from the primary contractor
to the Defense Contract Management Area Office (DCMAO), dated
October 5, 1990.
"Soon thereafter" the protestant's employee became aware
that there were still problems relating to the duty-free entry of
the merchandise. She called a DCMAO employee who advised her
that the protestant should identify, through the primary
contractor, the entry numbers for the merchandise and that DCMAO
would then issue and send to Customs any necessary duty-free
certificates. At this point, the protestant's employee first
became aware that the protestant's broker was not "performing ...
all functions necessary for duty-free entry ...."
The protestant's employee "immediately" contacted an
employee of the primary contractor and "fax-ed" a list of the
pertinent entry numbers which the employee of the primary
contractor stated would be sent to the DCMAO employee. "Two or
three weeks later" the protestant's employee called the DCMAO
employee to ask about the progress of the duty-free certificates
and was advised that issuance of the certificates took time and
that the request was being processed. After subsequent
conversations between the protestant's employee and the employee
of the primary contractor about progress in obtaining the duty-
free certificates, the employee of the primary contractor called
the DCMAO employee who claimed that she had never received the
list of entry numbers which the protestant's employee had "fax-
ed" to the employee of the primary contractor. The employee of
the primary contractor "fax-ed" a copy of the same list to the
DCMAO employee. (Note: although the file contains a copy of a
list of entry numbers for which duty-free certificates are
requested, "fax-ed" from the employee of the primary contractor
to the DCMAO contractor, the "fax" is undated and the entries
listed on the "fax" are not included in this protest. According
to the District Director of Customs where the protest was filed,
all of the entries listed in this "fax" were given duty-free
treatment.) "Through repeated contacts with DCMAO and with the
help of [the protestant's broker]" the protestant obtained the
duty-free certificates in October and November of 1991.
In the meantime, the entries under consideration were being
processed. Notices of Advance (Customs Form 29) were sent to the
protestant for each of the entries when the required duty-free
certificate was not provided within 6 months and the absence of a
duty-free certificate was explicitly given as the reason for the
rate advance. When the protestant failed to respond to the
Notices of Advance and no duty-free certificates were provided,
the entries were liquidated without benefit of the duty-free
provisions of subheading 9808.00.30, HTSUSA. The dates of these
liquidations were October 26, 1990, November 2, 1990, March 15,
1991, and April 26, 1991 (although two of the liquidations were
more than one year after the dates of entry, there is no "deemed
liquidation" issue because, according to Customs records, proper
notices of extension were given).
The protestant did not protest the liquidations under 19
U.S.C. 1514 or otherwise contest the liquidations until October
22, 1991, when it sent a letter to the District Director
requesting reliquidation under 19 U.S.C. 1520(c)(1) of the
entries under consideration, along with a number of other
entries. The protestant also sent letters to the District
Director pertaining to the request for reliquidation on November
1, 12, and 15, 1991 (in response to questions and/or requests for
more specificity by Customs). The bases given in these letters
for the request for reliquidation were changes to personnel and
responsibilities due to furloughs of employees, the belief by the
protestant that the primary contractor was filing the documents
required by Customs (the protestant stated it had usually been a
primary contractor instead of a sub-contractor), the inadvertent
mislaying of certain entries, that the protestant had believed
that letters from DCMAO's regional office to its New York office
with regard to duty-free entries were the required certificates
and had surrendered them to Customs, and that the protestant had
believed that it was necessary to file the duty-free certificates
through the primary contractor and that these certificates were
being sent directly to Customs.
Included in the file are supporting documents including
affidavits by concerned employees of the protestant (each
affidavit is dated March 9, 1992). Also in the file are copies
of duty-free certificates for each of the entries protested. The
dates of these certificates are October 29, 1991, November 13,
1991, and November 25, 1991.
On December 10, 1991, the District Director denied the
request for reliquidation. On March 9, 1992, the protestant
filed a protest of this denial of the request for reliquidation
with regard to the 30 entries listed in Attachment A to the
protest. The protestant argues that the request for
reliquidation should have been granted because the duty-free
certificates were not obtained until after the entries were
liquidated and this delay was caused by mistakes of fact as to
the respective roles of the protestant, the protestant's broker,
and the primary contractor (specifically, the protestant contends
that it made a mistake of fact in assuming that its broker was
submitting to Customs all necessary documentation) and by DCMAO's
inadvertence in processing the certificates. The protest was
forwarded for further review on June 11, 1992.
ISSUE:
In this case, as described in the FACTS portion of this
ruling, was the failure of the protestant to timely file duty-
free certificates as required under subheading 9808.00.30,
HTSUSA, 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 (with regard
to the fact that the duty-free certificates for some of the
entries could not have been received by Customs until after the
request for reliquidation under 19 U.S.C. 1520(c)(1) was filed or
until more than one year after liquidation, see C.J. Tower & Sons
of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, C.D. 4327,
336 F. Supp 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.
2d 1277 (1974)).
Under 19 U.S.C. 1520(c)(1), Customs may reliquidate an entry
to correct a clerical error (see PPG Industries, Inc., v. United
States, 7 CIT 118, 124 (1984), and cases cited therein), mistake
of fact (Hambro Automotive Corporation v. United States, 66 CCPA
113, 118, C.A.D. 1231, 603 F. 2d 850 (1979)), or other
inadvertence (see Occidental Oil & Gas Co. v. United States, 13
CIT 244, 246 (1989)), not amounting to an error in the
construction of a law (see Mattel, Inc. v. United States, 72
Cust. Ct. 257, 262-263, C.D. 4547 (1974), and cases cited
therein) when certain conditions are met.
The conditions required to be met under 19 U.S.C. 1520(c)(1)
are that the clerical error, mistake of fact, or other inadver-
tence 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 liquida-
tion of the entry. The relief provided for in 19 U.S.C.
1520(c)(1) is not an alternative to the relief provided for in
the form of protests under 19 U.S.C. 1514; section 1520(c)(1)
only affords "limited relief in the situations defined therein"
(Phillips Petroleum Company v. United States, 54 CCPA 7, 11,
C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc.,
v. United States, 85 Cust. Ct. 68, 69, C.D. 4874, 496 F. Supp.
1326 (1980); see also, Computime, Inc. v. United States, 9 CIT
553, 555, 622 F. Supp. 1083 (1985), and Concentric Pumps, Ltd. v.
United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986)).
Customs has ruled that "negligent inaction" (see Customs
Service Decision (C.S.D.) 80-250; see also, Occidental Oil & Gas
Co. v. United States, supra), is not within the scope of 19
U.S.C. 1520(c)(1). Cases involving the submission of incorrect
or incomplete documentation and the failure to submit, or late
submission, of correct documentation have been held to constitute
negligent inaction (see, e.g., rulings 222049, dated June 17,
1991, 221590, dated October 30, 1989, and 221680, dated October
16, 1989).
Basically, the protestant claims that the entries should
have been reliquidated because it made a mistake of fact in
believing that the primary contractor was responsible for filing
the duty-free certificates. In addition, the protestant claims
that it made a mistake of fact in assuming that its broker was
filing the duty-free certificates with Customs. Also, the
protestant claims inadvertence in DCMAO's delay in processing the
duty-free certificates. The protestant cites the case of C.J.
Tower & Sons of Buffalo, Inc. v. United States, supra, in support
of its protest.
In the C.J. Tower case, it was held that relief should have
been granted under 19 U.S.C. 1520(c)(1) when merchandise was
entered under a dutiable provision, the entry was liquidated
dutiable, and after the liquidation became final but within the
1-year period provided for in section 1520(c)(1) a request for
reliquidation was filed. The basis for the decision was that
neither the importer nor Customs knew until after the liquidation
became final that the merchandise was emergency war material
which could have been entered duty-free under the predecessor to
subheading 9808.00.30, HTSUSA. Subsequent Court decisions have
emphasized this basis for the C.J. Tower case (i.e., that neither
the importer nor Customs knew until after the liquidation became
final that the merchandise was emergency war material) (see
Concentric Pumps, Ltd., v. United States, supra, at 508; and NEC
Electronics U.S.A. Inc. v. United States, 13 CIT 214, 217, 709 F.
Supp. 1171 (1989)).
In the case under consideration it is conceded that "[a]t
all relevant times, all of the parties knew ... that no Customs
duties should be due or paid on these imports, since [the
protestant] imported these components to be used solely for U.S.
military procurement purposes." Therefore, this case is
distinguished from the C.J. Tower case.
The protestant cites ruling 720958, December 29, 1982, for
the proposition that the protestant's assumption that its broker
was filing all necessary documentation in connection with the
duty-free entry of the merchandise was a remediable mistake of
fact. The protestant also cites ruling 729292, July 9, 1986, in
support of its position. In ruling 729292, relief was granted
under 19 U.S.C. 1520(c)(1) when Generalized System of Preference
(GSP) Forms "A" were not timely filed because a letter sending
certificates of origin from the foreign supplier to the importer
was "clearly misdelivered, and if promptly delivered would have
resulted in the submission of the missing documents before the
end of the 90-day period following liquidation." It is indicated
in ruling 729292 that there was some apprehension that the
Customs field office processing the request under 19 U.S.C.
1520(c)(1) was taking the position that the regulatory provision
requiring Form "A" for GSP entries (19 CFR 10.112) precluded the
filing of a section 1520(c)(1) claim.
In the case of ruling 720958, explicit written directions
were given by the protestant to the broker and the broker failed
to follow those directions. In the case under consideration, no
such written directions were given to the broker (although
employees of the protestant stated that they "understood" that
the broker was responsible for obtaining the duty-free
certificates). Further, we understand that the broker has acted
as broker for the protestant's DCMAO (formerly DCASR) entries
since 1972 and that the importer has always taken the
responsibility for obtaining the duty-free certificates in those
cases. Ruling 720958 is distinguished from the case under
consideration.
In the case of ruling 729292, a specific mistake or
inadvertence remediable under 19 U.S.C. 1520(c)(1) was clearly
established by documentary evidence. The ruling reached the
conclusion that, but for this mistake or inadvertence, the
required documents would have been timely delivered. The
protestant attempts to analogize this case to the case under
consideration, arguing that "[b]ut for [protestant's] mistake of
fact in assuming initially that [the broker] was submitting all
necessary documents, and then the delays resulting from DCMAO's
inadvertence in issuing the necessary duty-free certificates,
[the protestant] would have submitted the certificates in a
timely fashion." We do not accept this attempted analogy. As
shown above, the protestant has not clearly established that its
alleged assumption that its broker was responsible for obtaining
the duty-free certificates was a mistake of fact remediable under
19 U.S.C. 1520(c)(1). Further, as is shown below, there was
"negligent inaction" on the part of the protestant in this case.
It is specifically recognized in ruling 729292 that negligent
inaction would have been a bar to relief in that case. Also as
shown below, it is not established that DCMAO's alleged delay in
processing the duty-free certificates was inadvertence remediable
under 19 U.S.C. 1520(c)(1). Ruling 729292 is distinguished from
the case under consideration.
A review of the pertinent times in this protest shows that
this case is a classic case of negligent inaction in which the
protestant is seeking to use 19 U.S.C. 1520(c)(1) as an
alternative to 19 U.S.C. 1514. For simplicity, these pertinent
times (based either on the undisputed record or protestant's own
submissions and contentions) are set forth in tabular form:
EVENT DATE
Entries. 11/6/89 - 8/31/90.
Protestant first becomes aware of May 1990.
problems with certificates.
Protestant is advised that it must obtain May 31, 1990, and
certificates through primary contractor "immediately"
and begins action to do so. thereafter.
Notices of Advance sent by Customs to More than 6 months
protestant advising that entries will after entries.
be liquidated dutiable in the absence of
certificates.
Protestant becomes aware there are still "Soon thereafter"
problems with obtaining certificates and October 5, 1990.
first becomes aware that broker is not
performing all functions necessary to
obtain duty-free entry.
Protestant "fax-es" a copy of entry "Immediately
numbers to primary contractor who thereafter" above.
"fax-es" same to DCMAO.
Primary contractor "fax-es" another Indefinite date, but
copy of entry numbers to DCMAO which "2 or 3 weeks" and
says it did not receive first "fax". several telephone
conversations after
above.
Liquidations 10/20/90 (8 entries)
11/02/90 (1 entry)
03/15/91 (5 entries)
04/26/91 (16 entries)
Duty-free certificates issued 10/29/91, 11/13/91,
and 11/25/91.
Thus, before any of the entries were liquidated, the
protestant became aware that there were problems with the
obtaining of duty-free certificates, it was advised how it should
obtain the duty-free certificates (and it eventually did obtain
them in the advised manner), and it became aware that its broker
was not performing all of the functions necessary to obtain the
duty-free certificates. Also before liquidation, in the case of
each entry, Customs, by Notices of Advance, gave the protestant
notice that the entries would not be given duty-free treatment in
the absence of duty-free certificates. After (or before, in some
cases) these Notices of Advance were sent, and before, or at
approximately the same time as, liquidation of the entries, the
protestant became fully aware that there was a problem in the
obtaining of duty-free certificates (i.e., the protestant "fax-
ed" to the primary contractor a list of the entries for which
certificates were needed and the primary contractor "fax-ed" the
list to DCMAO and later (but still clearly before the
liquidations became final) the primary contractor "fax-ed" a
second list to DCMAO).
In C.S.D. 80-250 (cited and discussed in Occidental Oil &
Gas Co. v. United States, supra), Customs published its position
on negligent inaction. This position is, basically, that when an
importer fails to respond to inquiries by Customs for further
information, or fails to provide documents requested by Customs,
Customs must liquidate the entry on the basis of the best
information available to it and the failure of the importer to
provide the information or documents is not a clerical error,
mistake of fact, or inadvertence remediable under 19 U.S.C.
1520(c)(1) (see the rulings cited above (222049, 221590, and
221680) for examples of rulings in which this rule has been
applied). In the case under consideration, Customs advised the
importer of the documents necessary for duty-free entry of the
merchandise and, when the documents were not provided and Customs
received no response from the importer within the time given,
Customs had no choice but to liquidate the entries on the basis
of the best information available (see St. Paul Fire & Marine
Insurance Co. (Insurer for Carreon, Inc.) v. United States, Slip
Op. 92-125, Vol. 26, Cust. Bull. & Dec., No. 35, p. 36, August
26, 1992, for an illustration of the hazards to Customs of
extending the liquidations of entries when information or
documents have been requested and the importer has not
responded).
The protestant had at least two alternatives available to it
when it became aware of the problems it was having in obtaining
duty-free certificates (which it concedes it recognized as a
condition precedent to obtaining duty-free treatment for the
merchandise). When it initially became aware of these problems,
it could have requested that the time for liquidation be extended
(see 19 U.S.C. 1504; 19 CFR 159.12(a)(1)(ii)). The protestant
could have followed this course of action after receipt of the
Notices of Advance or at any other time up to liquidation of the
entries. After liquidation of the entries, the protestant could
have filed a protest under 19 U.S.C. 1514, if it had done so
timely (i.e., within 90 days of liquidation).
In regard to protestant's choice to seek relief under 19
U.S.C. 1520(c)(1) instead of 19 U.S.C. 1514, see the Court
decisions cited above for the rule that the relief provided in
the former is not an alternative to the relief provided for in
the latter. Also in this regard, see Occidental Oil & Gas Co. v.
United States, supra, in which the Court stated about a similar
fact pattern:
The record shows that the Customs Service
liquidated the entry, and, given the information
it had at the time, classified the merchandise
properly. Plaintiff did not protest the
classification, but rather petitioned for
reliquidation under 19 U.S.C. 1520(c)(1).
Clearly, plaintiff's proper course of action
would have been to challenge the classification
of the merchandise through a section 514 protest.
[13 CIT at 248-249. Emphasis added.]
In the case under consideration, the protestant did not
respond to the Notices of Advance, in which the absence of the
required duty-free certificates was explicitly given as a reason
for advancing the duty on the merchandise, until at least six
months after issuance of the Notices (in the case of the entry
for which a copy of the Notice of Advance was forwarded for our
review, this time period was more than 1 year and four months).
This failure to communicate with Customs about this matter, when
the protestant concededly was aware of the problems concerning
the obtaining of the duty-free certificates and the necessity of
obtaining such certificates to obtain duty-free treatment, was
negligent inaction on the part of the protestant. The mistake
made by the protestant in this case was in its choice of action
to correct the problem (i.e., before liquidation of the entries,
it could have requested extension of the time for liquidations,
and after liquidation of the entries, it could have timely
protested the entries under 19 U.S.C. 1514). See, in this
regard, Universal Cooperatives, Inc., v. United States, 13 CIT
516, 518, 715 F. Supp. 1113 (1989), in which the Court
distinguished between "decisional mistakes" in which a party may
make the wrong choice between two known alternative sets of facts
and which "must be challenged under Section 514" and "ignorant
mistakes" which are remediable under 19 U.S.C. 1520(c)(1). The
mistake made in this case was in the nature of a "decisional
mistake" for which relief under 19 U.S.C. 1520(c)(1) may not be
granted.
With regard to the protestant's claim that DCMAO's delay in
processing the duty-free certificates was remediable inadvertence
under 19 U.S.C. 1520(c)(1), there is no evidence as to the claim-
ed inadvertence. As explicitly stated in section 1520(c)(1), in
order to qualify for relief under that provision, the clerical
error, mistake of fact, or other inadvertence must be manifest
from the record or established by documentary evidence (see, in
this regard, PPG Industries, Inc. v. United States, 4 CIT 143,
147-148 (1982), and United States v. Lineiro, 37 CCPA 5, 10,
C.A.D. 410 (1949)). Therefore, in the absence of any evidence as
to the claimed inadvertence, no relief may be granted on this
basis.
In its November 3, 1992, letter, the protestant discusses
the St. Paul File & Marine Insurance Co. (Insurer for Carreon,
Inc.) v. United States, supra, and Occidental Oil & Gas Co. v.
United States, supra, cases. With regard to the former, we are
not citing this case as precedent for the decision in the protest
under consideration; rather, we are citing it to illustrate that
Customs does not have carte blanche to extend liquidations when
information necessary for liquidation which is requested by
Customs is not provided. Under the Carreon case, when requested
information is not provided, liquidation may be extended for a
reasonable period of time relative to the situation, but if
liquidation is extended unreasonably, the entries will be deemed
to have been liquidated, as entered, by operation of law.
The protestant attempts to distinguish the protest under
consideration from the Occidental Oil & Gas Co. case on the basis
that the Notices of Action sent to the protestant by Customs were
not received because of the reorganization of the protestant (the
forms were addressed to "Emerson E&S Division" but in early 1989,
according to the protestant, the protestant became a separate
company and Emerson Electric Corporation (of which Emerson E&S
had been a division) continued other operations. The protestant
concludes that "[i]t is surely only because no [Notice of Action]
was actually received by E&S that it did not respond", adding
that "it is unlikely [that the responsible employee, who provided
one of the affidavits described above] would have ignored the
notice had it been properly delivered."
The protestant appears to be asking us to determine, on the
basis of supposition, that the Notices of Action were not
received by the protestant (i.e., see language quoted above, "it
is surely because ..." and "it is unlikely ..."), but provides no
evidence in this regard. In fact, all documents in the file
having addresses for the protestant (including the protest
itself) have the same mailing address (although the protest lists
the name of the protestant as "Electronics & Space Corp."), and
entries and invoices from 1990 (i.e., after the 1989
reorganization) list the consignee or importer as a division of
Emerson Electric Corp., just as was done on the Notices of
Action. As to this issue, see Tropicana Products, Inc. v. United
States, 13 CIT 390, 393, 713 F. Supp. 413 (1989); aff'd, 909 F.
2d 504 (Fed. Cir. 1990), noting the "presumption that 'public
officials have discharged their duties ....'" See also, PPG
Industries, Inc. v. United States, supra, and United States v.
Lineiro, supra, as to the requirement that a clerical error,
mistake of fact, or other inadvertence must be manifest from the
record or established by documentary evidence to qualify for
relief under 19 U.S.C. 1520(c)(1) (as discussed above) (in
particular, note the statement of the Court in the Lineiro case
that "[d]etermination of issues in customs litigation may not be
based on supposition" (37 CCPA at 10)).
As to the other arguments made by the protestant in its
November 3, 1992, letter, we do not accept as a "crucial
distinction," as claimed by the protestant, the fact that in the
protest under consideration the documents establishing the
entitlement to duty-free treatment were submitted at the time of
the application for reliquidation under 19 U.S.C. 1520(c)(1),
whereas that was not the case in the Occidental Oil & Gas Co. v.
United States, supra, case. (In fact, we note that the duty-
free certificates were not filed within the 1-year period for
filing an application for reliquidation under section 1520(c)(1)
in the case of all but one of the entries listed on the first
page of the attachment to the protest and the first entry listed
on page two of that attachment.) The fact that in the case of
some of the entries duty-free certificates were submitted at the
time of the filing of the application for reliquidation under
section 1520(c)(1) does not change the fact that it was negligent
inaction of the protestant to fail to respond to the Notices of
Action, as discussed above. Nor do we agree, as contended by the
protestant in its November 3, 1992, letter that the reasoning in
the Occidental Oil & Gas Co. case is contrary to that in the C.J.
Tower & Sons of Buffalo, Inc. v. United States, supra, case and,
in any case, is not applicable to the protest under consideration
because the protest involves "defense articles" and the
Occidental Oil & Gas Co. case involved a claim for duty-free
treatment under the provision for "American goods returned" (see
the discussion of the applicability of the C.J. Tower case to the
protest under consideration, above).
HOLDING:
The failure of the protestant to timely file duty-free
certificates as required under subheading 9808.00.30, HTSUSA, 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 is DENIED. A copy of this decision should be
attached to the Form 19 and provided to the protestant as part of
the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division