• HQ 227364
• Jan 11, 1999

• Type : Liquidation/Drawback • HTSUS :
•  Related:   025280; 224417; 221080; 221887   

LIQ-9-01/DRA-2-02-RR:CR:DR 227364 SAJ

Port Director
U.S. Customs Service
ATTN: Mr. Jayson P. Ahern
P.O. Box 025280
Miami, FL 33102-5280

RE: Application for Further Review of Protest No. 5201-96-100640; Request for Reliquidation; Proper Protest under 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1); 19 U.S.C. 1313; Drawback; Mistake of Fact; Correctable Error Must be Manifest from the Record or Established by Documentary Evidence; Defective Certificates of Delivery

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:

The protestant filed a manufacturing drawback claim on March 14, 1994, asserting that while it was not the importer of the designated duty-paid merchandise, it received that merchandise from various importers, who issued certificates of delivery to the protestant. The claim, on Customs Form (CF) 331, was signed by the protestant on March 3, 1994.

Section IV of CF 331, which requires the description and identification of the imported duty-paid merchandise which is to be designated as the basis for drawback, refers to Attachment 2. The copy of attachment 2 in the file lists four import entries: 113 -xxxx771-5 (three line items), 032-xxxx142-0(two line items), 113-xxxx728-0(nine line items), and 113-xxxx744-7(five line items).

Block 28 of the CF 331 states that 80,299 gallons of 65 degree brix orange juice concentrate was the merchandise that was actually used to produce the export articles. The export articles are described in block 29 of the form as 572, 934 pounds solid of frozen orange juice concentrate. Block 30 of the CF 331 states that the export articles were produced from January, 1993 to May, 1993. Attachment 2 to the CF 331 shows that three shipments from import entry 113-xxxx771-5 were received on November 19 and 20, 1992 and used during the period from the dates of receipt until January 19, 1993. That attachment shows that the merchandise covered by the other three import entries that were designated were received and used as follows:

Received Used 032-xxxx142-0 November 18, 1992 November 18, 1992 - January 17, 1993 113-xxxx728-0 January 8 - 18, 1993 January 8, 1993 - March 19, 1993 113-xxxx744-7 January 18, 1993 January 18, 1993 - March 19, 1993

In addition, Attachment 2 lists the receipt number of each shipment.

On March 21, 1994, Customs notified the protestant by letter that the dates of delivery shown on several of the actual certificates of delivery differed from the dates of receipt listed on Attachment 2. That letter also informed the protestant that there were no certificates of delivery for two of the shipments listed on Attachment 2. The letter provided the protestant with an opportunity to amend the drawback claim.

The broker communicated with Mr. Freeman, President of Citram, with regards to the certificates of delivery that were requested by Customs. Customs communicated in writing with Mr. Freeman after he made an allegation of having sent the amended certificates of delivery to Customs. Customs had no record of the alleged submission by Mr. Freeman.

On July 15, 1994, Customs notified, by letter, the protestant’s agent, Louis Dreyfus Corp., of the discrepancies between the dates of receipt and use shown on the certificates and the dates listed in Attachment 2. The letter listed 11 import entries which involved this discrepancy. However, only two of those 11 import entries (113-xxxx728-0 and 113-xxxx744-7) appear to be involved with the drawback claim covered by this protest. The file contains correspondence from the protestant’s customhouse broker to Louis Dreyfus Corp. which contains copies of apparent amended certificates of delivery that appear to have been signed by the customhouse broker for the protestant. These copies are unsigned by the seller, who would have been the person who would have been responsible for issuing the certificate. Also, the copies cover six of the nine shipments from import entry 113-xxxx728-0 and three of the five shipments from import entry 113-xxxx744-7. The date signed by the customhouse broker is unclear since these appear to be duplicate copies. There is a typed date on June 16, 1994 and a handwritten notation of November 9, 1994. Associated with these copies is a Federal Express shipping label which is dated November 10, 1994 and a letter from the customhouse broker of the same date which states that Customs cannot find the package originally sent.

The Customs letter of July 15, 1994 listed six shipments, identified by shipment quantity, from import entry 113-xxxx728-0 and three shipments, identified by shipment quantity, from import entry 113-xxxx744-7 which involved the date discrepancies. The earlier letter of March 21, 1994 does not identify the shipments which involved the discrepancies. The copy of the March 21, 1994 Customs letter contains a handwritten notation, apparently initialed by the Customs drawback liquidator on July 11, 1995, stating “[N]o response from Sun Pure. Citram never provided correct C/D’s. Exported 2-93 - 5 -93. Over 3 years.”

The protestant alleges that Customs agreed to withhold liquidation of a number of claims including the subject drawback claim, pending receipt of this information. However, there is no documentation in the file substantiating this agreement. The protestant also alleges that the certificates of delivery were sent to Customs after receiving the July 15, 1994 letter. On January 20, 1995 and February 21, 1995, Customs sent letters to the president of Citram (Mr. Freeman) and the protestant's broker advising that Customs did not have a record of having received such documentation. On February 21, 1995, Customs once again requested valid certificates of delivery for all transfers.

The discrepancies in dates appear as follows for import entry 113-xxxx028-0: The amounts designated for each of the nine shipments are 115,335 liters per shipment on Attachment 2, apparently in single strength liters, based on a comparison with Attachment 1 to the drawback claim. Only the front of the certificate of delivery on the shipment designating 230,904 single strength liters is in the file so that the date shown in block 66 of the certificate is not available. However, there is an annotated copy of Attachment 2 which lists the apparent discrepancies. With respect to the nine shipments designated from import entry 113-xxxx728-0, the annotations show the date discrepancies as follows:

February 2, 1993 vice January 8, 1993 January 29, 1993 vice January 13, 1993 February 11, 1993 vice January 15, 1993 Certificate of delivery missing from claim Certificate of delivery missing from claim March 17, 1993 vice January 15, 1993 February 24, 1993 vice January 15, 1993 March 4, 1993 vice January 15, 1993 March 4, 1993 vice January 18, 1993

With respect to the five shipments designated from import entry 113-xxxx744-7 the annotation show the date discrepancies as follows:

March 17, 1993 vice January 18, 1993 March 25, 1993 vice January 18, 1993 March 25, 1993 vice January 18, 1993 April 2, 1993 vice January 18, 1993 April 2, 1993 vice January 18, 1993

The copy of the certificate of delivery designating 228,917 single strength liters from import entry 113-xxxx228-0 also is the front page so that block 66 is not shown. The copy of the certificate of delivery designating 115,717 single strength liters from import entry 113-xxxx228-0 is complete and shows a February 11, 1993 delivery date in blocks 63 and 66. The copy of the certificate of delivery designating 115,661 single strength liters from import entry 113-xxxx228-0 is complete and shows a March 17, 1993 delivery date in blocks 63 and 66. The copy of the certificate of delivery designating 231,322 single strength liters from import entry 113-xxxx228-0 is complete and lists a delivery date of March 4, 1993 in blocks 63 and 66. The copy of a second certificate of delivery designating 115,717 single strength liters from import entry 113-xxxx-228-0 is complete and lists a delivery date of February 24, 1993.

There are three complete copies of certificates of delivery involving import entry 113-xxxx744-7 which list the following dates in blocks 63 and 66:

March 17, 1993 (116,193 single strength liters); March 25, 1993 (230,503 single strength liters); and April 2, 1993 (923,720 single strength liters).

The file also contains amended certificates of delivery. The amended certificate corresponding to the designation of 230,904 single strength liters from import entry 113-xxxx728-0 asserting delivery dates from January 1 - 17, 1993 is signed by Citram’s President on March 21, 1996.

The amended certificate corresponding to the designation of 228,917 single strength liters asserting delivery dates from January 1 - 17, 1993 is signed March 2, 1996. The amended certificates covering the remainder of the disputed designations of single strength liters of 115,717, 115,661, 115,717, and 231,322 are also signed March 21, 1996. Similarly, the amended certificates covering the disputed designations from import entry 113-xxxx744-7 were signed March 21, 1993.

The requested documentation was not received from either the protestant or the importer. The protested drawback claim was liquidated July 28, 1995 without any allowance of drawback. The protestant did not protest this liquidation under 19 U.S.C. 1514.

Protestant forwarded documentation to Customs on August 9, 14, and 25, 1995. There is a notation in the August 25, 1995 letter that the broker met with the president of Citram to reconcile the importer's records with the protestant's records.

In a letter dated October 20, 1995, the protestant's broker requested Customs to forward a letter dated October 20, 1995 to protestant regarding the importer's certificates of delivery. The letter requested that the protestant supply new certificates of delivery which contain the proper dates for receipt and usage and proof that the president of Citram is allowed to sign documents on behalf of Citram.

There is a letter dated January 30, 1996 in the file to Mr. Tim Hammond, the account analyst for SunPure, from Customs Miami. The January 30, 1996 letter notifies Mr. Hammond that "action has been taken regarding the processing of the pending drawback claims", and that "[n]o further action can be taken ... until the necessary information is received."

Customs Miami also sent another letter dated January 30, 1996 to Ms. Susan Collins, Comptroller of SunPure, Ltd. This letter advices that Citram's amended certificates of delivery received by Customs Miami are "not sufficient to accurately demonstrate the needed information found on the Certificates of Delivery." Moreover, Customs Miami in that letter also requested that all the certificates of delivery be redone and "indicate the proper dates for receipt, usage and adequate signatures along with all other necessary data." Customs Miami also requested the "legal documentation of the sale of [Citram] as well as verification that Mr. Freeman has the ability to execute documents on behalf of Citram." In a letter dated March 25, 1996, the protestant enclosed the amended certificates of delivery which were signed on March 21, 1996. Also enclosed was a Secretary's Certificate for Citram certifying that Mr. Freeman "continues to hold of office of President of Citram." The Secretary's Certificate was signed on March 20, 1996.

The protestant claims that the entry at issue was inadvertently liquidated with another drawback claim (claim number AA-0121101-1, which is not at issue). The protestant also argues that the only change ever made to the subject drawback claim was to voluntarily change the receipt date on certain third party importer deliveries, which did not impact the claim. The protestant cites to Headquarters ruling (HQ) 224417 and HQ 221080.

The protestant requested by letter dated May 10, 1996 that the drawback claim be reliquidated with drawback allowed pursuant to 19 U.S.C. 1520(c)(1) alleging the liquidation was erroneous due a mistake of fact. The mistake of fact asserted was the discrepancy between the dates of delivery shown on the certificates of delivery and those shown on Attachment 2 to the drawback claim. The request for reliquidation was denied by letter dated June 28, 1996. This protest against that denial was filed August 13, 1996.

ISSUE:

Whether the denial of the request for reliquidation under 19 U.S.C. 1520(c)(1) was proper?

LAW AND ANALYSIS:

A protest against a denial of a request to reliquidate an entry under 19 U.S.C. 1520(c)(1) is a matter covered by 19 U.S.C. 1514(a)(7). Under 19 U.S.C. 1514(c)(3)(B), such a protest must be filed within 90 days after the date of the decision disputed. In this case, the filing of the protest on August 13, 1996 against the refusal to reliquidate of June 27, 1996 would be timely.

The key issue is whether 19 U.S.C. 1520(c)(1) covers this situation. We find that it does not for the following reasons:

19 U.S.C. 1520(c)(1) is an exception to the finality of section 1514. Under section 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. The error must be adverse to the importer and manifest from the record or established by documentary evidence and brought to the attention of Customs within one year after the date of liquidation. The relief provided for under 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) on 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, 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)).

Entries are correctable under 19 U.S.C. 1520(c)(1) which provides:

(c) Reliquidation of entry or reconciliation

Notwithstanding a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry or reconciliation to correct- (1) a clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in electronic transmission, 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 any entry, liquidation, or other customs transaction, when the error, mistake or inadvertence is brought to the attention of the Customs Service within one year after the date of liquidation or exaction...

(Emphasis added.) The regulation implementing section 1520(c)(1) mirrors the statutory language. See 19 C.F.R. 173.4(b)(1985).

It is clear that the error must have been brought to the attention of the Customs Service within one year after the date of liquidation. In the case at hand, liquidation occurred on July 28, 1995. The protestant’s request of May 10, 1996, was filed May 13, 1996 and would be timely. However, 19 U.S.C. 1520(c)(1) is not intended to be an alternative for importers who fail to file timely protests. As stated by the Court of International Trade in PPG Industries, Inc. v. United States, 7 CIT 118, 124 (1984), the following three conditions must be satisfied under 19 U.S.C. 1520(c)(1): 1) a mistake of fact must exist; 2) the mistake of fact must be manifest from the record or established by documentary evidence; and 3) the mistake of fact must be brought to the attention of the Customs Service within the time requirements of the statute.

The statute requires that the error which is the subject of the complaint be adverse to the importer. The import entries and the certificates of delivery show that Citram, Inc. and Norcam Juice Products, and not the protestant, Sun Pure, Inc., were the only importers involved. There is no evidence showing that the liquidation, even if it was in error, was adverse to either Citram, Inc. or Norcam Juice Products.

In some cases, the drawback claimant is not the importer of any merchandise, but is only the exporter of the merchandise, or the manufacturer or producer of the exported merchandise. In those situations, the drawback claimant does not meet the requirement of section 1520(c)(1), since the denial of drawback is not “adverse to the importer.” In this case, the drawback claimant is not the importer of the merchandise, and therefore does not meet the requirement under 1520(c)(1).

Finally, the protestant has failed to establish any clerical error, mistake of fact, or other inadvertence caused the failure to complete a claim within the statutory time limit. As stated above, a mistake of fact must be manifest from the record or established by documentary evidence. The CIT has ruled that mere assertion by a complainant without supporting evidence will not be regarded as sufficient to overturn a Customs official's decision. Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983). 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 "with sufficient particularity to allow remedial action." A mistake of fact must be manifest from the record or established by documentary evidence. See, id., ("Mistakes of fact that are not manifest from [the] record ... must be established by documentary evidence"). See also, Taban Co. v. United States, 960 F. Supp. 326 (CIT 1997) (reprinted in Customs Bulletin, March 19, 1997, p. 43), and Zaki Corp. v. United States, 960 F. Supp. 350 (CIT 1997) (reprinted in Customs Bulletin, April 2, 1997, p. 84).

Clearly, in this case, there is no mistake of fact manifest from the record. Although the protestant has submitted the necessary documents, the protestant has failed to explain why the documents were not submitted in a timely manner, or prior to the expiration of the 3 year period. The merchandise at issue was exported from March 8, 1993 through May 24, 1993, and the protestant submitted to Customs the documentation necessary to complete the drawback claim on March 25, 1996.

The protestant contends that the liquidation of the subject merchandise with a disallowance for drawback was a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law. This theory is sustainable only if it can be established that a request to withhold liquidations was made at Customs Miami and some error or mistake occurred to prevent the withholding. In protestant's attachment for its protest filed in CF 19, the protestant admits that it "has no document of agreement withholding liquidation and can only present circumstantial evidence." See CF 19 (August 13, 1996) p. 4.

The protestant relies on a letter dated October 20, 1995, which is after the liquidation of the merchandise, and a fax dated December 13, 1995 where the protestant requested Customs to withhold liquidation of the subject merchandise. There is no evidence to show that Customs Miami acted on the letter one way or another (i.e., denying or approving the request). Thus, despite the protestant's assertions, there is no evidence on this record that Customs Miami received a request to withhold liquidations in any form. Customs Miami confirmed that there is "no written evidence that Customs agreed to withhold liquidation pending [the protestant's] response." See Attachment: Reason for Denial of Protest 520196100640.

Another authority cited by the protestant is HQ 221080, which held that the documentation showed that correctable error was present. In HQ 221080, the documentation clearly indicated that there was an erroneous omission, and but for that omission, the entry in question would have received the proper treatment. It was emphasized in HQ 221080 that "without this ample evidence, we could not conclude that correctable error occurred." Thus analysis of documentation is crucial in determining whether correctable error exists. Moreover, the intent of the person committing the error is considered the essential factor in determining whether a correctable clerical error or inadvertence occurred. Charles Neidert v. United States, 30 Cust. Ct. 189, C.D. 1568 (1953).

We recognize that, in some circumstances, a failure by Customs to withhold liquidations can be a correctable error under the statute. See Esso Standard Oil Co. v. United States, 30 Cust. Ct. 111, C.D. 1506 (1953) (holding that where the record clearly demonstrates a failure by a Customs official to follow Customs instruction to withhold liquidation, correctable error exists under the statute). We emphasize that in Esso Standard Oil Co.,an intent by Customs to withhold liquidations and a failure to do so is clearly evident. In the instant case, however, there is no evidence of an intent by Customs to withhold liquidations.

It is clear that the statute requires identification and establishment of a particular mistake, error, or inadvertence. In the absence of sufficient evidence identifying and establishing the mistake, error, or inadvertence that occurred, reliquidation cannot be authorized on the basis of continued liquidations after a withholding request. We submit that before reliquidation can be authorized, a mistake or error must be identified in the instant case. Such mistake or error cannot be found unless it first is established that the request for withholding liquidation was made by the protestant and received by Customs Miami. The record fails to establish the foregoing.

In Customs Service Decision (C.S.D.) 79-386, we decided that a failure to withhold liquidations was an inadvertence correctable under 19 U.S.C. 1520(c)(1). 13 Cust. Bull. 1581 (1979). Two points must be made about this case. First, the facts of the instant case are distinguishable from the facts considered in C.S.D. 79-386. In C.S.D. 79-386, there was an agreement between the importer and Customs that, pending resolution of the value problem, the importer would increase the transaction value of the entries by 25%. This establishes that the two parties were engaged in arms length dealings with one another. Moreover, Customs intended to withhold liquidations. Given this intention, inadvertence or mistake is the reason for failure to withhold liquidation.

On the facts of the instant case, it is evident that the protestant and Customs Miami did not communicate effectively. Unlike C.S.D. 79-386, not only was there a communication problem involved in the instant case, but there is no indication on the record that Customs Miami intended but failed to withhold liquidations due to a mistake or inadvertence. Consequently, while there was a basis for ruling in favor of the importer in C.S.D. 79-386, that basis is lacking on the facts of the case at hand.

The second point to be made about C.S.D. 79-386 pertains to its broad statement that a disagreement between an importer and Customs as to the existence of an agreement to withhold liquidations is, without more, a mistake of fact. As a general proposition, this statement is incorrect and the C.S.D. was clarified in Headquarters ruling (HQ) 221887, dated October 8, 1991, which was also cited by the protestant. In HQ 221887 it was stated that

[w]here a mistake of fact is evident from the facts, and it produces a failure to withhold liquidations, one will be recognized; however, the mere fact of a disagreement between Customs and an importer as to whether or not a request to withhold liquidations had been made is not conclusively indicative, by itself, of a mistake of fact. In determining whether or not there has been a mistake of fact, or some other correctable error, we are limited by the facts of the case.

In the instant case, the evidence is insufficient to establish that Customs Miami was aware of a request to withhold liquidation. Evidence demonstrating direct and persistent communication with Customs Miami during the relevant period is lacking. Evidence establishing that the protestant and Customs Miami discussed the withholding of liquidation is lacking. In C.S.D. 79-386 it was evident from the record that Customs and the broker agreed that some confusion existed regarding a request to withhold liquidations. On the facts here, Customs Miami makes no such concessions. Since there is no evidence to the contrary, Customs Miami was unaware of a request to withhold liquidations, its liquidation of entries was proper and the bulletin of notices of liquidation, absent protests, were final and conclusive.

The statute also requires that the error not amount to an error in the construction of a law. Errors in legal interpretation can be challenged only by a timely protest under 19 U.S.C. 1514. Correctable errors under section 1520(c)(1) are defined in T.D. 54848. See 94 Treas. Dec. 244 (1959). A mistake of fact occurs when a person believes the facts to be other than what they really are and takes action based on that erroneous belief. The reason for the belief may be that a fact really exists but is unknown to the person, or he may believe that something is a fact when in reality it is not. Clerical errors occur when a person intends to do one thing but instead does something else, including mistakes in arithmetic and the failure to associate all the papers in a record under consideration. Inadvertence connotes inattention, oversight, negligence, or lack of care. These errors are not necessarily mutually exclusive. However, errors in the construction of a law are not correctable under this section. “Those occur where the facts are known, but their legal consequences are not known or believed to be different than they really are.” Executone Information Systems v. United States, 96 F.3d 1383, 1386 (Fed. Cir. 1996), 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). 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). Customs has held that the submission of incorrect or incomplete documentation and failure to submit, or late submission, of “correct” documentation are not correctable errors under 19 U.S.C. 1520(c)(1).

In this case, the Customs drawback officer identified the discrepancy by letter dated March 21, 1994. The available evidence shows that there was a discrepancy between the dates. If the later dates shown on the certificates of delivery were the correct dates, receipt of the imported merchandise after the date of the manufacture of the exported articles would not meet the terms of the relevant drawback law, 19 U.S.C. 1313(b) which, in pertinent part, provides:

If imported duty-paid merchandise and any other merchandise (whether imported or domestic) of the same kind and quality are used in the manufacture or production of articles within a period not to exceed three years from the receipt of such imported merchandise by the manufacturer or producer of such articles, there shall be allowed...”

The words “within a period not to exceed three years from the receipt of such imported merchandise by the manufacturer or producer of such articles...” show that if the exported articles were produced before the manufacturer or producer received the designated imported merchandise there could be no compliance with the statute. The Customs Service, by that same letter, notified the protestant that two certificates of delivery were missing. The failure to include those certificates of delivery would be contrary to 19 C.F.R. 191.65(a)(1993 ed.). The same requirement is now set forth in 19 C.F.R. 191.10(c), as amended by T.D. 98-16.

By the letter of July 15, 1995, Customs informed the protestant that the discrepancy between the dates was not satisfactorily explained. By the letter of August 9, 1995, from Citram’s President, Customs was informed that the discrepancy was caused by Citram using its invoice date rather than the delivery date. Moreover, it is clear that additional submissions raised discrepancies in the amounts designated. The nine shipments designated from import entry 113-xxxx728-0 compared with the corresponding amounts shown on the certificates of delivery are as follows: Drawback Entry Certificate of Delivery Citram letter of August 9, 1995 AA6-xxxx103-8 Received with a Claim Attached Schedule Dated Attachment 2 July 26, 1995 Rpt. No. Amount designated Rpt. No. Amt. 1533 115,335 N/A 230,904 1533 115,452 1540 115,335 N/A 228,917 1540 115,452 1545 115,335 N/A 115,717 1545 114,459 1546 115,335 Reported Missing 1546 114,458 1549 115,335 Reported Missing 1549 115,661 1550 115,335 N/A 115,661 1550 115,661 1551 115,335 N/A 115,717 1551 115,717 1552 115,335 N/A 231,322 1552 115,661 1553 115,335 N/A N/A 1553 115,661

The Attachment to Citram letter of August 9, 1995 shows that the amounts on the certificates received with the claim were calculated as follows:

230,904 = 115,452 (1533) + 115,452 (1540) 228,917 = 114,459 (1545) + 114,458 (1546) 231,322 = 115,661 (1552) + 115,661 (1553)

Assuming that the calculations are correct, it is obvious that the amount of 228,917 said to be receipts 1545 and 1546 is less than the corresponding amount of 230,670 (115,335 + 115,335) which was designated from those shipments on the claim. While the amounts as calculated from the attachment to the Citram letter of August 9, 1995 exceed the corresponding calculations asserted on Attachment 2 to the claim, they do not match them.

The certificates, which are signed by the customhouse broker with the typed date of June 16, 1994 and the handwritten date of November 9, 1994, do not meet the requirements of former section 191.65(a), Customs Regulations (1995 ed.) or current section 191.10, Customs Regulations. The documents fail to bear the signature of the importer who delivered the goods. The letter of the customhouse broker to Louis Dreyfus shows that in November, 1994, those parties were aware that Customs lacked those documents. There is no evidence to show that they were ever filed with Customs. The handwritten notification on the Customs letter of March 21, 1994 indicates that the responsible Customs officer was still waiting to receive certificates that would demonstrate the manufacturer’s compliance with 19 U.S.C. 1313(b).

The fact of the discrepancies and the legal reason underlying the discrepancies was brought to the attention of the protestant by Customs. The evidence indicates that the Customs officer was aware of the lack of certificates which could show compliance with the manufacturing drawback law when the entry was liquidated. Since even the certificates of August 9, 1995 and March 21, 1996 are not without discrepancies, the liquidation was not in error due to the filing of correct certificates. It is not clear that correct certificates exist even now, at least from the evidence in the file.

The evidence indicates that Customs officers in liquidating the claim followed the guidelines provided by 19 C.F.R. 191.7(d)(1995 ed.) which requires Customs to determine the amount of drawback due on the basis of the complete claim before them. The claim in question has discrepancies which were brought to the attention of the claimant and there is no evidence to show that those discrepancies were corrected to the satisfaction of the Customs officer involved. If a mistake was made by Customs it would appear to have been a legal error rather than one of fact. In the instant case, the protestant failed to show that its error fits within one of the statutory categories as a “clerical error,” as a “mistake of fact,” or as some “other inadvertence.”

The protestant claims it should be permitted to amend and perfect its claim by filing corrected Certificated of Delivery. See p. 3 of CF 19 (August 13, 1996). The protestant cites to HQ 224417 (February 16, 1995), which allowed the importer to verify its claims by filing properly endorsed certificates of waiver. However, the case for reliquidation under 19 U.S.C. 1520(c)(1) has not been made. Entries at Miami were liquidated and bulletin notices were properly posted. The protest procedure under 19 U.S.C. 1514 provides the statutory remedy to correct erroneous liquidations is correctable error under 19 U.S.C. 1520(c)(1). The protestant has not established, on the record of this case, that such an error occurred. On this record, the protest must be denied. As stated in the FACTS portion of this ruling, the record reflects a dispute on the dates. The protestant should have protested before the finality of the Customs liquidation occurred. Moreover, Customs made a legal determination, not a factual one.

In the instant case, the drawback claimant is not the importer of the merchandise and therefore does not meet the requirement of section 1520(c)(1). The statute requires that the error which is the subject of the complaint be adverse to the importer. The import entries and the certificates of delivery show that Citram, Inc. and Norcam Juice Products, and not the protestant, Sun Pure, Inc., were the only importers involved. There is no evidence showing that the liquidation, even if it was in error, was adverse to either Citram, Inc. or Norcam Juice Products.

Reliquidation under 19 U.S.C. 1520(c)(1), to correct clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, may be made only when such clerical error, mistake of fact, or inadvertence is manifest from the record or established by documentary evidence. The burden of establishing correctable error is on the petitioner. When the alleged correctable error is a failure by Customs to withhold liquidation, the petitioner, in demonstrating that a correctable error occurred, must at least demonstrate that a request to withhold had been made and was received by an appropriate Customs officer. Where Customs refutes that a request was received, and the record lacks sufficient evidence to establish otherwise, the protest must be denied. Therefore, the denial of the petition under 19 U.S.C. 1520(c)(1) was proper.

HOLDING:

The protest should be DENIED for the reasons set forth in the LAW AND ANALYSIS portion of this ruling. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Director,
Commercial Rulings Division