LIQ-9/LIQ-4-01:RR:IT:EC 226774 AJS
Area Director
U.S. Customs Service
JFK Airport Area
Building 77
Jamaica, NY 11430
RE: Internal Advice; 19 U.S.C. 1520(a)(4); 19 CFR 173.4a; Refund
of antidumping duties prior to liquidation; HQ 225466; HQ 224652;
Clerical error.
Dear Sir:
This is in reply to your request for Internal Advice of
February 27, 1996, filed pursuant to 19 CFR 177.11(b)(2), under
your file LIQ-01-K:TC:A1 RS, concerning Thor Air Freight Corp.
(Thor) and 19 U.S.C. 1520(a)(4).
FACTS:
On November 13, 1995, Thor filed an entry concerning ball
bearings which was subject to a deposit of antidumping (AD)
duties with rates varying based on the manufacturer. The Customs
Form 7501, Entry Summary, specified the appropriate AD case
number as A588-201-000 with a deposit rate of 45.83% (i.e., all
other manufacturers rate). Based on this information, AD duties
were deposited at that rate. Regarding this information, Thor
simply claims that "we realized that a clerical error was made on
the antidumping duty". No specifics were given as to how the
claimed error occurred or who was responsible. The invoice
indicates that the bearings were manufactured by NTN which is
subject to the rate of 13.9% under case number A588-201-009.
Since the entry has not been liquidated because the AD case is
pending, Thor requested a refund of the overpayment in AD duties
prior to liquidation pursuant to 19 U.S.C. 1520(a)(4).
-2-
ISSUE:
Whether a portion of the subject antidumping duties may be
refunded prior to liquidation pursuant to 19 U.S.C. 1520(a)(4).
LAW AND ANALYSIS:
19 U.S.C. 1520(a)(4) states that the Secretary of the
Treasury is authorized to refund duties or other receipts prior
to the liquidation of an entry or reconciliation, whenever it is
ascertained that excess duties, fees, charges, or exactions have
been deposited or paid by reason of clerical error. 19 CFR
173.4a provides that pursuant to section 520(a)(4), Tariff Act of
1930, as amended (19 U.S.C. 1520(a)(4)), the district director
may prior to liquidation of an entry, take appropriate action to
correct a clerical error that resulted in the deposit or payment
of excess duties, fees, charges, or exactions.
In HQ 225466 (July 5, 1995), Customs addressed the issue of
whether Customs possessed the authority under section 1520(a)(4)
to refund AD duties prior to liquidation. In that ruling, the
Department of Commerce (DOC) published initial AD duty deposit
margins and the protestant deposited duties based on these
margins. The DOC subsequently revised these margins due to
certain ministerial or clerical errors committed in the
calculation of the initial AD margins. Prior to liquidation, the
protestant sought a refund pursuant to section 1520(a)(4) for the
difference between the initial deposit margins and the revised
margins. This office stated that on entries involving AD duties,
the Secretary of the Treasury has limited authority. We further
stated that under 19 U.S.C. 1677(1), the Secretary of Commerce is
responsible for the administration of the AD laws. We concluded
that under those laws, the Secretary of Commerce alone was
authorized to establish procedures to correct clerical or
ministerial errors under the AD laws. We also concluded that
under the authority given to the Secretary of Commerce over
administration of the AD laws, it would be inappropriate to
interpret 19 U.S.C. 1520(a)(4) in a manner to expand on any
corrective action taken by the DOC without specific instructions
from that Department.
Your internal advice request, however, is factually
distinguishable from HQ 225466. This request simply involves a
claimed clerical error in the deposit of AD duties by Thor. As
unlike the case in HQ 225466, no clerical error was committed
which involved the authority of the DOC to set dumping margins.
A refund in this instance would simply fall within the authority
of Customs to correctly collect the amount of cash deposit equal
to the estimated weighted-average margin as instructed by the DOC
under such regulations as 19 CFR 353.15(a)(3)(ii),
353.20(a)(3)(ii), and 353.21(b). Therefore, the subject AD duty
deposit may be refunded if deposited due to a clerical error
pursuant to section 1520(a)(4).
In the subject case, the claimed correct AD duty deposit was
13.9% based on the invoice. However, the actual amount of AD
duty deposited was 45.83% based on the claimed use of an
incorrect case number. This type of error does not involve the
authority of the DOC to set
-3-
dumping margins. The subject claimed error simply falls within
the authority of Customs to
correctly collect the amount of cash deposit as instructed by the
DOC. Consequently, the subject AD duty deposit may be refunded
to reflect the claimed correct amount if it was in fact deposited
due to a clerical error.
In HQ 224652 (August 5, 1993), Customs addressed the issue
of the refund of duties prior to liquidation due to a clerical
error. In that case, we stated that:
A "clerical error" has been stated by the Courts to be "a
mistake made by a clerk or other subordinate, upon whom
devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention." See P.P.G.
Industries, Inc., v. United States, 7 CIT 118, 124 (1984)., and
cases cited therein. In addition, T.D. 54848 provides, "clerical
error occurs when a person intends to do one thing but does
something else . . . It includes mistakes in arithmetic and
the failure to associate all the papers in a record under consideration." In Ruth F. Sturm's Customs Law & Administration
(3rd ed.), it is stated that "[c]lerical error has been found
where mistakes were made in copying or typing figures or
where figures have been transposed", and a number of Customs
Court decisions are cited for this proposition (section 9.4,
at pp. 5 and 6).
In Example 2 of HQ 224652, an incorrect country of origin (i.e.,
Singapore) was used by the freight forwarder when the correct
country of origin (i.e., Indonesia) was available on the bill of
lading. We concluded that this type of error was not a clerical
error correctable pursuant to section 1520(a)(4) because the
freight forwarder did not intend to write down Indonesia and
instead write down Singapore. Rather, we concluded that the
freight forwarder incorrectly used the documentation presented to
ascertain the country of origin and that this type of error would
appear to be a type of inadvertence due to inattention or
carelessness which should be addressed under 19 U.S.C.
1520(c)(1).
In the subject entry, Thor simply claims that "we realized
that a clerical error was made on the antidumping duty". No
specifics were given as to how the claimed error occurred or who
was responsible. The individual who prepared the CF 7501 in
issue has not been identified nor has that individual explained
the factual circumstances that resulted in the error. This is
not a situation in which the nature of the error is manifest from
the record such as the case in which an error in mathematics in
carrying out an extension would be. Based on the definition of
clerical error in HQ 224652, Thor has not submitted sufficient
information in order for a clerical error determination to be
made. This office is unable to determine if Thor intended to
deposit AD duties under case number A588-201-009 instead of under
case number A588-201-000 or if Thor simply incorrectly used the
invoice to ascertain the correct case number and deposit amount.
Accordingly, Thor's claim for a refund prior to liquidation
pursuant to 19 U.S.C. 1520(a)(4) should be denied based on
insufficient evidence.
-4-
HOLDING:
Insufficient evidence was submitted to determine if the
subject entry involves a clerical error entitled to a refund of
excess duties prior to liquidation pursuant to 19 U.S.C.
1520(a)(4).
This decision should be mailed by your office to the
internal advice requestor no later than 60 days from the date of
this letter. On that date 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