LIQ-9-01-RR:CR:DR 227309 SAJ
Port Director of Customs
6 World Trade Center
ATTN: Residual Liquidation and Protest Branch
New York, NY 10048-0945
RE: AFR Protest No. 1001-95-110326; Clerical Error, Mistake of Fact or other Inadvertence; 19 U.S.C. 1514; 19 U.S.C.
1520(c)(1); No Evidence; Occidental Oil & Gas Co., v. United
States
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have examined the arguments and our
decision follows.
FACTS:
The subject protest involves the importation of three
shipments of ladies' wearing apparel (merchandise) by Contrepoint
Industries Inc. (protestant). The merchandise was made in Hong
Kong by Tradeflow Ltd. (manufacturer), and sold and exported by
Medan Company Ltd., Hong Kong (seller). The protestant hired
Apparel Buying Services Ltd., Hong Kong as their commissioned
buying agent (buying agent).
According to the documents in the file, the following three
shipments of the merchandise were entered: entry numbers 469-xxxx135-2 (135-2) dated February 12, 1993; 469-xxxx738-1 (738-1)
dated August 18, 1993; and 469-xxxx392-6 (392-6) dated October
12, 1993.
Entry number 135-2 was entered on the basis of the seller's
invoice prices for the merchandise. On March 8, 1993, the
protestant received a Notice of Action (Customs Form (CF) 29)
from Customs proposing to advance the dutiable value of the
merchandise on the basis that the "[q]uota charges paid to the
seller are dutiable." The protestant claimed that the
merchandise was not subject to duty and requested additional time
to provide information in a letter dated March 26, 1993 to
substantiate that the quota charges were paid separately by the
protestant to a third-party quota broker and not to the seller.
On May 7, 1993, Customs issued a Request for Information (CF
28) requesting detailed information concerning the transaction,
including quota transfer documents, and proof of separate payment
for quota by the protestant to the quota holder. The protestant,
in a letter dated June 24, 1993, explained that because the
manufacturer did not have the quota necessary to export the
shipment, the protestant arranged with Simway Textiles Ltd., Hong
Kong (quota broker), a third party broker, to secure quota. The
quota broker then sold the quota to the protestant, while the
seller arranged for its transfer to the manufacturer on the
protestant's behalf. The protestant also stated that no quota
charges were paid to the manufacturer, but rather was obligated
to pay the quota broker and that, upon such payment, would supply
proof thereof to Customs. The protestant provided copies to
Customs of the quota transfer documents, whereby quota was
transferred to the manufacturer by other quota holders.
The protestant stated to Customs, in a letter dated July 29,
1993, that the quota charges were not paid to the manufacturer or
to the seller. The protestant supplied proof of payment for the
merchandise through the protestant's buying agent. The
protestant also showed that charges for quota paid on the
protestant's behalf and for the buying agent's 7.5% commission
were separate from the payment for the merchandise.
Customs issued a second Request for Information (CF 28) on
August 13, 1993, asking for additional information and
documentation. Customs requested a copy of the buying agency
agreement, proof of the agent's payment to the seller, and proof
of the payment for quota by the agent or the seller. Customs
also requested clarification of the identity of the seller. The
protestant responded by letter dated October 18, 1993,
transmitting a copy of the buying agreement and confirming that
Medan Company Ltd. was the seller of the goods. The protestant
also claimed that both the seller and the agent were reluctant to
comply with the protestant's request for payment documents on the
basis that those documents were proprietary.
The protestant claims that copies of the official receipts
issued by the quota broker for payment of the quota charges and
copies of the payment advice issued by the bank and credit note
receipt issued by the seller for payment to the seller for the
merchandise, were not received until entry number 135-2 had been
liquidated.
Entry number 738-1 was not the subject of any Request of
Information (CF 28), but the entered value was advanced and
increased duties were assessed upon liquidation due to the
absence of the payment documents requested by Customs from the
protestant. The protestant claims that the same reasons given
for entry number 135-2 apply to entry number 738-1.
Entry number 392-6 was the subject of a value advance upon
liquidation to add the quota and buying agency commission
charges. A Notice of Action (CF 29) was issued by Customs with
respect to this entry, proposing the same action as set forth in
the Notice of Action (CF 29) for entry number 135-2. The
protestant claims that despite efforts made, the documentation
needed to substantiate the non-dutiable status of the buying
agent's commission and the quota charges could not be obtained
prior to liquidation or within 90 days thereafter.
Notices of Action (CF 29) were issued on CF 29 with respect
to two of the entries proposing to advance the dutiable value of
the merchandise on the basis that certain quota charges were
dutiable.
According to the protestant, documentation establishing that
the quota charges were not paid to the seller of the merchandise
but to a third party could not be obtained until after all three
of the subject entries were liquidated. Entry number 135-2 was
liquidated February 25, 1994, entry number 738-1 was liquidated
December 10, 1993, and entry number 392-6 was liquidated March
18, 1994. The protestant did not protest the liquidation of the
subject entries within 90 days as required under 19 U.S.C. 1514.
The file contains the following documentation (stated in the
order the documents appear in the file):
Letter dated March 26, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint referring to the Notice of Action (CF 29)
for entry number 135-2 stating that protestant is "in the
process of procuring the necessary information ... [which
will be submitted] within the next 10 days";
Letter dated June 24, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint referring to the Request for Information
(CF 28) on entry number 135-2 and forwarding some of the
requested documentation;
Import and Export Ordinance No. 03109;
Import and Export Ordinance No. 02932;
Import and Export Ordinance No. 02933;
Import and Export Ordinance No. 03386;
Import and Export Ordinance No. 02802;
Letter dated July 29, 1993 to Customs JFK from Mr. Neil Lee
of Contrepoint referring to entry number 135-2 forwarding
proof of payment and copies of invoices from the buying
agent;
Letter dated July 22, 1993 to the protestant from Rena C.
Forte of the Bank of Boston Connecticut regarding a wire
transfer for invoice numbers 9301, 9302, and 9303;
Invoices (number 9301, 9302, 9303 and 9304) from the buying agent dated January 26, 1993;
Letter dated October 18, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint regarding entry number 135-2, submitting
the Agency Agreement , copy of payment to the seller, and
quota statements from the quota broker;
Four quota statements from the quota broker containing different amounts, dated April 14, 1993;
Agency Agreement between the protestant the buying agent dated September 25, 1992;
Receipt No. 92/100497/, 92/1003, and 92/1002 from the quota broker dated May 1, 1993;
Invoice No. MD-0004 from the seller dated January 22, 1993;
Credit Note from the seller dated January 1, 1993;
Payment Advice from Standard Chartered Bank dated February
11, 1993 reference no. 315150261748-A;
Invoice No. MED0024-F, MED0025-F, MED0026-F, MED0027-F, MED0028-F; MED0029-F; MED0030-F, and MED0031-F from the
seller dated August 12, 1993;
Invoice No. 9358, 9359, 9360, 9361, 9362, 9363, 9364, and
9365 from the buying agent dated August 20, 1993;
Import and Export Ordinance No. 28288, 27850, 29194, and 29398;
Check from the Banque Nationale de Paris dated August 14, 1993 in the amount of HK$177,610;
Deposit Slip from Standard Chartered Bank dated October 11, 1993 for the seller's account;
Check from Fashion Mark Manufacturing Ltd. to the quota broker (illegible amount and illegible date - September
1993);
Invoice No. 9373 from the buying agent dated October 10, 1993;
Invoice No. MED0040-F from the seller dated October 5, 1993;
Letter dated August 17, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint stating that the quota broker arranged
for the transfer of quota to the manufacturer, the
protestant purchased the quota from the quota broker, and
the payment for quota charges to the quota broker would be
made by the protestant;
Packing List from the seller for Invoice No. MED-0031-F, dated August 11, 1993;
Multiple Country Declaration sheet dated August 11, 1993 for
and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0031-F;
Audit No. 1922231 dated August 3, 1993 containing
declarations;
Import and Export Ordinance No. 29398;
Packing List from the seller for Invoice No. MED-0029-F, dated November 8, 1993;
Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped
under Invoice No. MED-0029-F;
Packing List from the seller for Invoice No. MED-0030-F, dated November 8, 1993;
Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped
under Invoice No. MED-0030-F;
Audit No. 1922232 dated August 10, 1993 containing
declarations;
Import and Export Ordinance No. 29194;
Packing List from the seller for Invoice No. MED-0028-F, dated August 11, 1993;
Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped
under Invoice No. MED-0028-F;
Audit No. 1922234 dated August 10, 1993 containing
declarations;
Import and Export Ordinance No. 27850;
Packing List from the seller for Invoice No. MED-0026-F, dated November 8, 1993;
Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped
under Invoice No. MED-0026-F;
Packing List from the seller for Invoice No. MED-0027-F, dated August 11, 1993;
Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped
under Invoice No. MED-0027-F;
Audit No. 1922230 dated August 10, 1993 containing
declarations;
Import and Export Ordinance No. 28288;
Packing List from the seller for Invoice No. MED-0024-F, dated November 8, 1993;
Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped
under Invoice No. MED-0024-F;
Packing List from the seller for Invoice No. MED-0025-F, dated November 8, 1993;
Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;
Quota statement dated August 10, 1993 for goods shipped
under Invoice No. MED-0025-F; and
Audit No. 1922229 dated August 10, 1993 containing
declarations.
The protestant states that efforts to secure the additional
documentation requested by Customs continued. However, there is
no documentation in the file such as faxes or letters that
substantiate this assertion.
Customs made a legal determination with the documents
submitted and concluded that both the agent's commission and the
quota charges were subject to duty. The additional duties were
assessed at the time of liquidation and were ultimately paid by
the protestant. The protestant did not protest the liquidation
of the subject entries within the statutory time frame (within 90
days of the liquidation of the subject entries) set forth under
19 U.S.C. 1514.
After the expiration of the 90-day protest period, the
protestant supplied copies of quota statements from the quota
broker, confirming the quota amounts. The protestant supplied
Customs with a bank deposit slip evidencing payment to the
seller, the canceled bank check evidencing payment of quota
charges to the quota broker. The protestant also supplied
Customs with copies of the seller's invoices, the buying agent's
invoices, quota transfer documents, and a canceled check in
payment of the merchandise to the seller by the protestant
through the buying agent. The protestant claims that despite
efforts made, the documentation needed to substantiate the non-dutiable status of the buying agent's commission and the quota
charges could not be obtained prior to liquidation or within 90
days thereafter.
The documentation in the file reflects that petition number
1001-94-201781 was filed with Customs on December 9, 1994 for the
reliquidation of the three subject entries under 19 U.S.C.
1520(c)(1). Customs denied the petition for reliquidation on
September 8, 1995.
The protestant timely filed protest number 1001-95-110326,
with application for further review of the denial of the
1520(c)(1) claim, on December 7, 1995. The protestant claimed
that further review under 19 C.F.R. 174.24(b) is warranted since
it involves questions of fact or law which have not been ruled on
by Customs or the courts. The protest was denied on July 19,
1996 on the grounds that "the legal determination which
substantiates the assessment of dates for quota charges, is not
within the purview of Section 1520(c)(1)."
On September 17, 1996, the protestant timely filed a request
to set aside the denial of further review of protest number 1001-95-110326 under 19 U.S.C. 1515(c). In Headquarters ruling (HQ)
227249, it was concluded that the application for further review
should have been granted pursuant to the authority of 19 C.F.R.
174.24(b), which voided the denial of further review by the Port
Director.
The protestant's counsel submitted an affidavit dated
November 7, 1997 on behalf of Mr. Neil Lee, the operations
manager of Contrepoint Industries, Inc. On page 2 of the
affidavit, Mr. Lee states that his efforts to obtain the
requested documentation by Customs consisted of "initiating
telephone communications with personnel of Contrepoint's buying
agent, ABS ... until he received the requested payment
documentation." In the affidavit, Mr. Lee also states that any
correspondence between ABS and Contrepoint, with respect to
efforts to obtain the requested documentation, "was discarded in
the ordinary course of business by Contrepoint and is no longer
available."
Insofar as the liquidation of the subject entries, Mr. Lee,
in his affidavit, states that "[o]n the basis of ... reasonable,
but mistaken belief that the liquidation of Entry number ...
[entry number 135-2], was withheld, he did not file a protest on
this or the other entries involved .. [entry numbers 738-1 and
392-6], and continued his efforts to obtain the documents
requested by [Customs]. Mr. Lee also states that "[h]e was
unaware that any of the entries in question were liquidated until
more than ninety days after the liquidation of [entry number 392-6].
The mistake of fact alleged by the protestant in this case
is that there were continued efforts to obtain the documents
requested by Customs, and that the protestant believed it had
been given that opportunity by Customs, whereby Customs would
withhold the liquidation of the subject entries.
We now review the claims presented in petition number 1001-94-201781, which were filed with Customs on December 9, 1994 for
the reliquidation of the three subject entries under 19 U.S.C.
1520(c)(1). The protestant cites to Customs Service Decision
(C.S.D.) 80-250 where Customs held that a failure to act may be
correctable under 19 U.S.C. 1520(c)(1) when it is coupled with
another significant factor, such as a misunderstanding of the
facts, or the inability of the protestant to obtain proper
documentation to establish a claim.
ISSUE:
Whether relief may be granted under 19 U.S.C. 1520(c)(1).
LAW & 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, and that the
denial of a request for reliquidation under section 1520(c)(1) is
a protestable decision under 19 U.S.C. 1514(a)(7).
Under 19 U.S.C. 1520(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 and adverse to the protestant, when certain conditions are
met. Section 1520(c)(1) has frequently been interpreted by the
Courts.
It has been stated that "[a] clerical error is a mistake
made by a clerk or other subordinate, upon whom devolves no duty
to exercise judgment, in writing or copying the figures or in
exercising his intention". See PPG Industries, Inc. v. United
States, 7 CIT 118, 124 (1984), and cases cited therein.
The Courts have also stated that: "[M]istakes of fact occur
in instances where either (1) the facts exist, but are unknown,
or (2) the facts do not exist as they are believed to [and]
[m]istakes of law, on the other hand, occur where the facts are
known, but their legal consequences are not known or a believed
to be different than they really are." Executone Information
Systems v. United States, 96 F. 3d 1383, 1386 (Fed. Cir. 1996)
(emphasis in original), citing Hambro Automotive Corporation v.
United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850
(1979); see also, Degussa Canada Ltd. v. United States, 87 F. 3d
1301 (Fed. Cir. 1996).
Finally, inadvertence has been defined as "an oversight or
involuntary accident, or the result of inattention or
carelessness, and even as a type of mistake." Aviall of Texas,
Inc. v. United States, 70 F. 3d 1248, 1250 (Fed. Cir. 1995),
citing Hambro, supra).
The conditions required to be met under 19 U.S.C. 1520(c)(1)
are that 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. The relief provided for in section 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).
Executone Information Systems v. United States, Appeal
No.95-1527 (Decided September 24, 1996), Customs Bulletin and
Decisions, Vol. 31, No. 44, October 29, 1997, is on point. In
Executone, Customs issued Notices of Action indicating that
because no documentation had been furnished with the entry to
support duty-free entry under the CBI, Customs liquidated the
entries in question with additional duties. Although the
claimant had requested its broker to submit Form A to Customs
several times, the broker had failed to do so. A protest had not
been filed within 90 days after notice of liquidation as required
by 19 U.S.C. 1514. Thereafter, Form A was submitted to Customs
with a request to reliquidate the entries under 19 U.S.C.
1520(c)(1). Customs denied the protest because "[n]o supporting
documentation other than Form A [was] submitted." Executone p.
19. The Court in Executone articulated that "while the proper
documentation need not have existed at the time of entry, the
importer must prove ... that the proper documentation did or
would have existed at the time of entry and would have been
filed, but for some mistake of fact or inadvertence at the time
of entry." The Court further reasoned that "Executone, by
repeating its request [of the missing documentation], obviously
knew that the forms had not yet been filed, yet failed to act."
Executone p. 26.
At the time of liquidation of the subject entries, Customs
had outstanding requests for documentation to substantiate that
payment of the entered invoice amounts, excluding commissions,
were made to the seller of the merchandise and that payments for
quota were made to a party other than the foreign seller of the
merchandise. Customs did not have the pertinent documentation to
substantiate the payment of the invoiced and entered amounts to
the foreign seller, the payment of the quota charges to a party
other than the seller. Customs therefore value advanced the
subject entries and increased the duties. The subject entries
were not protested within 90 days as prescribed under 19 U.S.C.
1514.
The protestant contends that the inability to obtain the
additional documentation requested by Customs was not due to
negligent inaction, but rather due to a clerical error, mistake
of fact, or other inadvertence correctable under 19 U.S.C.
1520(c)(1). Specifically, the protestant claims that value
advance and increased duties for the subject entries was the
"Customs' mistaken belief as to the true facts." See Brief dated
December 8, 1994, p.5.
The protestant cites C.S.D. 80-250, which states that
failure to act may be correctable under 19 U.S.C. 1520(c)(1) when
it is coupled with another significant factor, such as a
misunderstanding of the facts, or the inability of the protestant
to obtain proper documentation to establish a claim.
The protestant distinguishes its circumstances from those
present in C.S.D. 80-250. In C.S.D. 80-250, it was held that
"[t]he failure of the importer to respond to Customs' requests
for additional information to aid Customs in determining the
value of the merchandise amounted to negligent inaction on the
part of the importer, and therefore, did not involve clerical
error, mistake of fact, or inadvertence within the meaning of
section 520(c)(1)." In C.S.D. 80-250, the importer failed, after
being requested by Customs, to furnish additional information to
help in determining the value of the merchandise. Protestant
argues that the case at hand factually differs from the case in
C.S.D. 80-250 because the importer in C.S.D. 80-250 had access to
the information requested by Customs.
The importer, in C.S.D. 80-250, contended that the mistake
of fact was that his employee filed two notices from Customs,
instead of responding to such notices. Customs found that the
only significant factor present in the matter was the failure to
perform a required act. In C.S.D. 80-250, the importer's failure
to respond to the two notices which amounted to negligent
inaction on the part of the importer and therefore did not
involve a clerical error, mistake of fact, or inadvertence within
the meaning of section 520(c)(1).
The protestant maintains that in the case at hand, the
"inability...to obtain the proper documentation was the sole
reason for [the protestant's] "failure to act."" See Brief dated
December 8, 1994, p.5. The protestant maintains that the mistake
of fact was protestant's failure to timely submit the requested
documents to Customs. The protestant claims that the subject
entries should have been reliquidated because the protestant,
"despite its best efforts, was unable initially to obtain the
additional documentation requested by Customs until well after
liquidation of the entries." See Brief dated December 8, 1994
p.4.
As in C.S.D. 80-250, Customs takes the position that there
is failure on the part of protestant to perform a required act.
Customs must liquidate an entry on the basis of the best
information available. Where there is doubt regarding the
appraisement of the merchandise as in the present case, Customs
has an obligation to protect the revenue and must liquidate the
entry at the higher value. See HQ 221680. It is fundamental
that in order to qualify for relief under 19 U.S.C. 1520(c)(1),
it must be established that there was an error or mistake which
establishes that the entry and liquidation were incorrect. In
this case, there is no mistake of fact present. Customs simply
liquidated the subject entries with the information and
documentation presented by the protestant.
The protestant emphasizes the fact that in C.S.D. 80-250 the
importer's failure to perform a required act constituted
negligent inaction. In the case at hand, the protestant argues
that it did not fail to respond to Customs initial and
supplementary requests. The protestant further contends that the
protestant "persisted in its attempts to obtain the additional
documentary evidence requested by Customs." See Brief dated
December 8, 1994, p. 5. It is also claimed by the protestant
that "through no fault of [their own] and solely because of the
understandable reluctance of the foreign companies to provide
internal documentation, the filing of the documents requested by
Customs was delayed." Id.
However, no evidence to substantiate the claim that the
protestant made efforts to obtain the necessary documentation but
failed through no fault of their own is provided. Statements of
counsel are not evidence. Bar Bea Truck Leasing Co., Inc. v.
United States, 5 CIT 124, 126 (1983). Therefore, no evidence of
the alleged mistake of fact, such as correspondence corroborating
the claim made, is provided.
The protestant's counsel submitted an affidavit dated
November 7, 1997 on behalf of Mr. Neil Lee, the operations
manager of Contrepoint Industries, Inc. On page 2 of the
affidavit, Mr. Lee states that his efforts to obtain the
requested documentation by Customs consisted of "initiating
telephone communications with personnel of Contrepoint's buying
agent, ABS ... until he received the requested payment
documentation." In the affidavit, Mr. Lee also states that any
correspondence between ABS and Contrepoint, with respect to
efforts to obtain the requested documentation, "was discarded in
the ordinary course of business by Contrepoint and is no longer
available."
Insofar as the liquidation of the subject entries, Mr. Lee,
in his affidavit, states that "[o]n the basis of ... reasonable,
but mistaken belief that the liquidation of Entry number ...
[entry number 135-2], was withheld, he did not file a protest on
this or the other entries involved .. [entry numbers 738-1 and
392-6], and continued his efforts to obtain the documents
requested by [Customs]. Mr. Lee also states in his affidavit
that "[h]e was unaware that any of the entries in question were
liquidated until more than ninety days after the liquidation of
[entry number 392-6]. Customs position is that the notice of
liquidation was posted and no extension was requested by the
protestant.
Courts have allowed affidavits to establish evidence in some
instances. The Court in Andy Mohan, Inc. v. United States, 74
Cust. Ct. 105, C.D. 4593, 396 F. Supp. 1280 (1975), aff'd 63 CCPA
104, C.A.D. 1173, 537, F.2d 516 (1976), noted that affidavits
provided as evidence are only "... entitled to little weight,
being incomplete and based on unproduced records, and having been
executed years after the transaction to which they attest."
Mohan 63 CCPA at 107. In the case at hand, the affidavit is
"based on unproduced records." The affiant, Mr. Lee, does not
provide evidence of continued efforts to obtain the requested
documentation by Customs.
The affidavit was also "executed years after the transaction
to which it attests." In this case, almost four years after
entry number 135-2 was liquidated. See, United States v. Baar &
Beards, Inc., 46 CCPA 92, C.A.D. 705 (1959) (holding that an
affidavit more than two years after the event to which it
related, not supported by any records, is insufficient to support
the basis for the claim at issue).
Occidental Oil & Gas Co., v. United States, 13 CIT 224
(1989) is also on point. In that case, Customs determined that
"the failure to file required documents whose absence had been
repeatedly called to [the importer's] attention constitute[d]
negligent inaction, not correctable under [19 U.S.C.
1520(c)(1)]." Id. at 245. The importer in Occidental Oil
submitted affidavits in support of its position alleging that it
"promptly took appropriate steps" to obtain the outstanding
documentation. Id. at 246. However, as in this case, the
importer presented no evidence of the attempt to obtain the
requested documentation.
In Occidental Oil the importer also relied on C.S.D. 80-250.
Customs maintained that the importer's "request for reliquidation
asserts an error of law, rather than a mistake of fact or
inadvertence, since it claims that the merchandise was impromptly
classified." Id. at 247. An error of law must be protested
within 90 days of the liquidation. In Occidental Oil, as well as
the instant case, no evidence was presented to substantiate that
the protestant importer made an earnest attempt to obtain the
necessary documentation in a timely manner. Therefore, the delay
by the protestant "cannot be described as a mere "inadvertence"."
Id. at 248. Similarly, "regardless of whether [the protestant]
was guilty of negligent inaction, it has not shown an error that
is remediable under 19 U.S.C. 1520(c)(1)." Id.
Even if we were to conclude that the entry and liquidation
were incorrect in this case, the protestant must also establish
that the alleged error was due to clerical error, mistake of
fact, or other inadvertence, not amounting to an error in the
construction of a law, adverse to the importer and manifest from
the record or established by documentary evidence. In this case,
the protestant claims that the alleged error was due to Customs
liquidation of the subject entries despite the absence of certain
factual evidence. However, as in Occidental Oil, Customs
decision to liquidate the subject entries was a legal
determination using the documentation before the appropriate
Customs officer.
Under 19 U.S.C. 1520(c)(1), the clerical error, mistake of
fact, or other inadvertence not amounting to an error in the
construction of the law must be "manifest from the record or
established by documentary evidence." The alleged error in this
case is not manifest from the record. See ITT Corp. v. United
States, 812 F. Supp. 213 (CIT 1993), reversed, 24 F. 3d 1384,
1387 (Fed. Cir. 1994)(stating that "... manifest from the record
[means] apparent to Customs from a facial examination of the
entry and the entry papers alone, and thus requir[ing] no further
substantiation.") In ITT, the Court also stated that "[m]istakes
of fact that are not manifest from [the] record ... must be
established by documentary evidence." Id. In the instant case
there is no such documentary evidence.
Section 1520(c)(1), allows for the reliquidation of an entry
to correct a clerical error, mistake of fact, or other
inadvertence not amounting to an error in the construction of the
law. Since this provision mandates that the claimed inadvertence
be manifest from the record, or established by documentary
evidence, we now focus on the question of whether a mistake of
fact occurred based on the evidence in the record. Errors
"manifest from the record" are those brought to the attention of
an appropriate Customs officer within one year from the date of
liquidation, and are apparent to Customs from a facial
examination of the entry and entry papers alone. "Documentary
evidence" is all other evidence supporting the claimed
inadvertence.
The Court in PPG Industries, Inc. v. United States, 4 CIT
143 at 147-48 (1982), quoting, in part from the lower court in
Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31,
C.D. 4761, 458 F. Supp. 1220 (1978) stated that the "burden and
the duty is on the plaintiff to inform the appropriate Customs
official of the alleged mistake of fact with sufficient
particularity to allow remedial action." See also United States
v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949) (holding that
"[d]etermination of issues in customs litigation may not be based
on supposition.") The alleged inadvertence must be described in
detail to prove that factual error rather than legal error
resulted. An error correctable under section 1520(c)(1),
therefore, must be established by evidence, and cannot be
inferred by the circumstances.
It is well settled that the only notice of liquidation that
is statutorily mandated is a bulletin notice. See, Goldhofer
Fahrzeugwerk GmbH & Co. v. United States, 13 CIT 54, 706 F. Supp.
892 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989); Tropicana
Products, Inc. v. United States, 13 CIT 390, 395, 713 F. Supp 415
(1989). The Court of International Trade has held that the
importer has the burden to check for posted notices of
liquidation and to protest in a timely manner. See, Juice Farms,
Inc. v. United States, 18 CIT 1037, 1040 (1994)(stating that
although Customs erroneously liquidated entries, protestant had
no relief to protest after the running of the 90 day period after
the posting of the bulletin notices of liquidation); Penrod
Drilling Co. v. United States, 13 CIT 1005, 1009, 727 F. Supp.
1463 (1989), reh'g denied, 14 CIT 281, 740 F. Supp. 858 (1990),
aff'd. 925 F.2d 406 (Fed. Cir. 1991).
In the instant case, the protestant's failure to check for
the posted notices of liquidation caused the failure to file a
protest of the liquidation. The protestant has presented no
evidence on why the posted notices of liquidation were not
checked.
HOLDING:
Relief may not be granted under 19 U.S.C. 1520(c)(1) for the
reasons given in the LAW AND ANALYSIS portion of this ruling.
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, with
the Customs Form 19, 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,
John Durant, Director,
Commercial Rulings Division