LIQ-9-01-RR:IT:EC 226182 CC
Port Director
U.S. Customs Service
200 St. Paul Place
28th Floor
Baltimore, MD 21202
RE: Application for further review of Protest No. 1303-95- 100091; 19 U.S.C. 1520(c)(1); mistake of fact; ITT Corp. v. United States
Dear Sir or Madam:
The above-referenced protest was forwarded to this office
for further review. We have considered the facts and issues
raised, and our decision follows.
FACTS:
This protest consists of 22 entries, which the protestant
states consists of 1 entry of a truck terrain diesel hydraulic
crane and 21 entries of manlifts. The dates of entry for the
subject merchandise range from October 6, 1993 to February 28,
1994. The dates these entries were liquidated range from
February 4, 1994 to June 17, 1994.
On September 28, 1994 the protestant requested, in
accordance with 19 U.S.C. 1520(c)(1), that you reliquidate the
entries because at the time of entry, the protestant was "not
aware that the crane and manlifts included a significant amount
of U.S. components."
On December 5, 1994 the section 1520(c)(1) claim was denied.
This protest on the denial of the section 1520(c)(1) claim was
filed on February 21, 1995.
ISSUE:
Whether Customs properly denied the protestant's request to
reliquidate the subject entries 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)(7) were timely filed.
Under 19 U.S.C. 1520(c)(1), an entry may be reliquidated to
correct a clerical error, mistake of fact, or other inadvertence
not amounting to an error in the construction of the law. The
error must be manifest from the record or established by
documentary evidence and brought to the attention of the
appropriate Customs officer within one year from the date of
liquidation.
The subject entries were liquidated under subheading
8426.41.00 of the Harmonized Tariff Schedule of the United States
(HTSUS), which provides for cranes, including cable cranes,
mobile lifting frames, straddle carriers and works trucks fitted
with a crane, other machinery, self-propelled. In its letter of
September 28, 1994, the broker, on behalf of the protestant,
requested the subject entries be reliquidated and stated the
following as the purported mistake of fact warranting relief
pursuant to 19 U.S.C. 1520(c)(1):
At the time of entry we were not aware that the
crane and manlifts included a significant amount of
U.S. components. Enclosed is a detailed list of the
American components assembled in the crane/manlifts.
We hereby respectfully request that subject
entries be reliquidated per corrected CF 7501 and duty
refunded. Since we were not aware of the American
components, this constituted a mistake of fact rather
than a [sic] error involving construction of the law.
Relief can be granted under section 520(c)(1) TA 1930
as per appeal number 93-1313 of 5/3/94, ITT Corporation
vs United States.
In support of its claim the protestant submitted a
significant amount of documentation. This documentation included
"corrected" entry summaries (Customs Form (CF) 7501) of the
subject entries. These CF 7501's included both the subheading
number of the entries as entered (8426.41.00, HTSUS) and what is
presumably the claimed subheading number (9802.00.80, HTSUS).
Subheading 9802.00.80, HTSUS, provides for the following:
Articles, except goods of heading 9802.00.90,
assembled abroad in whole or in part of fabricated
components, the product of the United States, which (a)
were exported in condition ready for assembly without
further fabrication, (b) have not lost their physical
identity in such articles by change in form, shape or
otherwise, and (c) have not been advanced in value or
improved in condition abroad except by being assembled
and except by operations incidental to the assembly
process such as cleaning, lubricating and painting.
In addition, the documentation submitted includes
declarations by a Mr. Joseph Dash that the cranes were assembled
in part or in whole from components which are products of the
U.S. Attached to these declarations are long lists of components
parts, which include part numbers, short descriptions of parts,
and values.
The protest against Customs refusal to reliquidate, in its
entirety, is the following:
Protest is made against Customs decision not to
reliquidate under section 520(c) TA 1930. We feel that
appeal 93-1313 of 5/3/94, ITT Corporation vs United
States addresses the specific issue involved in these
entries.
Attached to the protest was the letter of September 28, 1994,
requesting reliquidation, and the documentation submitted with
that letter, described above.
In ITT Corp. v. United States, 24 F. 3d 1384, 1387 (Fed.
Cir. 1994), the court found that reliquidation under 19 U.S.C.
1520(c) requires both notice and substantiation. Notice of a
clerical error, mistake of fact, or other inadvertence includes
asserting the existence of a clerical error, mistake of fact, or
other inadvertence "with sufficient particularity to allow
remedial action." See, also, PPG Industries, Inc., v. United
States, 4 CIT 143, 147-148 (1982); and Hambro Automotive Corp. v.
United States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220, C.D. 4761
(1978).
Although it is not entirely clear what the protestant's
claim is, essentially, the protestant's claim for relief pursuant
to 19 U.S.C. 1520(c) appears to be the following: 1)the imported
goods contained U.S. components; 2) the protestant was unaware of
the U.S. components, which is a mistake of fact; and 3) ITT Corp.
v. United States, supra, supports the protestant's claim.
Therefore, the protestant appears to conclude that the subject
entries should be reliquidated under subheading 9802.00.80,
HTSUS.
The protestant has failed to meet either the notice or
substantiation requirements for relief pursuant to 19 U.S.C.
1520(c)(1). The protest consists of vague assertions and
suppositions concerning U.S. components of which the protestant
was allegedly unaware. It is unclear what is the nature of the
protestant's's claim and no assertion of the purported mistake
has been presented in sufficient particularity to allow relief.
As stated by the Court of International Trade in Bar Bea Truck
Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983),
assertions of counsel are not evidence. See also, United States
v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), "[d]etermination of
issues in customs litigation may not be based on supposition."
Even if we were to find the protestant had met the notice
requirement, clearly the substantiation requirement has not been
met. A mistake of fact must be manifest from the record or
established by documentary evidence. See, ITT Corp. v. United
States, 24 F. 3d 1384, 1387 (Fed. Cir. 1994), Mistakes of fact
that are not manifest from [the] record ... must be established
by documentary evidence." Clearly, there is no mistake of fact
manifest from the record. Although the protestant has submitted
a plethora of documentation, submitting the documentation is all
the protestant has done; the protestant has utterly failed to
explain in any way how this documentation supports any purported
claim for relief pursuant to section 1520(c). For example, the
protestant has failed to explain how the documentation shows that
the subject merchandise was made of U.S. components and fits the
terms of subheading 9802.00.80, HTSUS. In addition, the
protestant has not demonstrated how the submitted documentation
shows that it was unaware of any alleged U.S. components or any
other purported mistake, and how any such mistake was a mistake
of fact rather than a mistake of law. The protestant has failed
to explain how ITT Corp. v. United States, supra, is analogous to
its protest or in any way supports its claim for relief. In
fact, the protestant states in the protest that "ITT Corp. v.
United States addresses the specific issue involved in these
entries," without having defined or articulated what is the
specific issue. Finally, the protestant has submitted a
declaration from a Mr. Joseph Dash, without stating what is
Mr. Dash's title, expertise, relationship to the protestant,
etc., which would permit us to attach any significance to his
declaration.
Consequently, there has been absolutely no basis presented
for reliquidating the subject entries pursuant to 19 U.S.C.
1520(c)(1). The protestant's claim is therefore denied.
Finally, we note that the protest does not meet the
requirements for the contents of a protest, section 174.13 of the
Customs Regulations (19 CFR 174.13), which provides the
following:
(a) A protest shall contain the following information:
(6) The nature of, and justification for the
objection set forth distinctly and specifically with
respect to each category, payment, claim, decision, or
refusal.
Clearly, as discussed above, the protest does not contain a clear
explanation of the nature of or justification for the matter
protested. Consequently, the protest does not meet the
requirements of 19 CFR 174.13.
HOLDING:
The denial of the protestant's request to reliquidate the
subject entries under 19 U.S.C. 1520(c)(1) was proper. Therefore
the protest is DENIED.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
Director, International Trade
Compliance Division