LIQ-9-01-RR:IT:EC 227495 PH
Port Director of Customs
Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, New York 10048-0945
RE: Protest No. 1001-96-105846; Protest No. 1001-96-200143;
Clerical Error, Mistake of Fact, or other Inadvertence;
Samples; 9811.00.60, HTSUS; 19 U.S.C. 1514; 19 U.S.C.
1520(c)(1)
Dear Sir or Madam:
The above-referenced protest was forwarded to this office for
further review. We have considered the evidence provided and the
arguments made by the protestant, as well as Customs records
relating to this matter. Our decision follows.
The samples enclosed with the protest are returned as you
requested.
FACTS:
According to the file and Customs records, on May 30, 1995, the
protestant entered the merchandise under consideration.
According to the entry summary for the merchandise, the
merchandise consisted of women's footwear, with a total entered
value of $7,000 and a total entered duty of $756.13. The
invoices for the merchandise bear the notation:
HTSUS 9811.00.60. Footwear is marked samples not for
resale' on sole on insole of shoe. Samples of no commercial
value. Value for Customs purposes only.
Five sample shoes are provided. In the case of four of the
samples, the marking "SAMPLES NOT FOR RESALE" is on the outside
of the sole of the shoe in letters more than 1/8 inch high,
located at the widest point of the soles (approximately below
where the ball of the foot would be). In the case of two of
these shoes, the marking is partially defaced (i.e., the words
"not for" are scratched over, leaving the words "samples" and
"resale" unscratched. In the case of two of these shoes, the
marking is a gold color against an off-white, or cream, sole. In
the case of the other two of these shoes, the marking is off-white against a dark brown sole. In the case of the fifth
sample, the marking is on the inside of the shoe (or sock
lining), in the front half of the shoe with the marking being in
a gold color against an off-white, or cream, color.
The entry was liquidated as entered on September 15, 1995. By
letter of January 17, 1996 (received by Customs January 24,
1996), a Customs broker, stating it represented the protestant,
"protest[ed] the liquidation of the [entry under consideration]
as a clerical error under sec[.] 520.c.1 as our entry clerk
clearly made a mistake of fact". The broker went on to state:
This shipment was processed as a duty paid entry when in
fact all the merchandise was clearly marked "Samples not for
resale" as is indicated on all the invoice[s] in the entry
package.
By letter of July 1, 1996, Customs denied the request in the
January 17, 1996, letter on the following basis:
Please be advised, both the samples and U.S. Customs
original decision were reviewed [and] determined that
Customs original decision was found to be correct.
On January 31, 1996, the protestant filed the protest under
consideration. The stated basis for the protest was:
The [a]bove decision [July 1, 1996, letter from Customs
denying the request for reliquidation under 19 U.S.C.
1520(c)(1)] is inconsistent with Ruling No. 556529, which
allowed the marking of "Sample not for Resale" on the shoe."
Further review was requested, citing ruling 556529, and granted.
ISSUE:
May relief be granted under 19 U.S.C. 1520(c)(1) in this protest?
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, and that the
denial of a request for reliquidation under section 1520(c)(1) is
a protestable decision under section 1514 (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 importer, 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 judgement, 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). It has
been 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 are 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)).
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 the 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 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) (cited by the protestant, see above), and
Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F.
Supp. 623 (1986)).
Basically, the protestant in this case claims that the entries
should have been reliquidated because the "entry clerk" of the
broker of the protestant "clearly made a mistake of fact", in
that "... all the merchandise was clearly marked Samples not for
resale' as is indicated on all the invoice[s] in the entry
package." No evidence of the alleged mistake of fact is
provided.
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 (i.e., in this case, it must be established that the
entry and liquidation were incorrect).
The ruling cited by the protestant (HQ 556529) holds that "[t]he
marking of non-quota footwear imported for sample use by means of
a label reading Sample Not For Resale' permanently attached to
the sock lining in a readily visible place may qualify for free
entry under subheading 9811.00.60, HTSUS [and] where the sock
lining will not be visible, the stamping of the sample legend
onto the outer sole with indelible ink would suffice to qualify
the shoes for duty-free entry under this subheading, provided the
ink cannot be removed without disfiguring the sole." In the LAW
AND ANALYSIS of the ruling it is stated that "[t]his [i.e., the
above-quoted holding] assumes that the ink cannot be removed
without disfiguring the soles, and that the legend is stamped on
the sole in close proximity to the heel so that the ink will not
wear off." See also, rulings HQ 555552, HQ 557825, and HQ
560231. In ruling HQ 557825, we held:
The footwear imported for sample use which has the marking
"Sample Not For Resale" embossed on the sole of the shoe in
a readily visible place may qualify for free entry into the
U.S. under subheading 9811.00.60, HTSUS, provided that the
legend cannot be removed without disfiguring the soles of
the shoe and the legend is stamped on the sole in close
proximity to the heel so that the ink will not likely wear
off.
In the case of the samples provided in this case, four of the
five samples have the marking not in close proximity to the heel,
but right below the ball of the foot where "... the ink will ...
likely wear off" (quoted from above, with emphasis added), and in
two of those samples, the defacement of the marking indicates how
readily the marking may wear off. In the case of three of the
samples, the color of the marking is not clearly contrasting
(gold on off-white or cream) (note that ruling HQ 556529 refers
to a marking in "indelible dark ink" and ruling HQ 557825 refers
to "a visible legend ... in a contrasting color". In the case of
the sample in which the marking is not on the sole but on the
inside of the shoe (or sock lining), although the shoe is open on
part of the sides, the marking is on the front part of the shoe,
partially below the closed toe-portion and may not be "readily
visible" (see ruling HQ 555552) or "conspicuous" (see ruling HQ
557825). We note, in this regard, that, for the reasons given
above, the Customs field office advised that the protest should
be denied on the merits (see ruling HQ 555552, which contains the
proviso that the appropriate Customs officer "[must be] satisfied
that such treatment [marking] renders the shoes unsuitable for
use for any purpose other than soliciting orders for foreign
merchandise").
Even if we were to assume 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 a mistake of
fact, (i.e., "... where either (1) the facts exist, but are
unknown, or (2) the facts do not exist as they are believed to
..." (Executone, supra); see also, ITT Corp. v. United States,
812 F. Supp. 213 (CIT 1993), reversed, 24 F. 3rd 1384 (Fed. Cir.
1994) ("... the document preparer simply understood the nature of
the merchandise to be other than what it was [and] [t]hus, a
mistake of fact occurred" (812 F. Supp. at 216); although the
Court of Appeals reversed, it stated about the CIT finding of a
mistake of fact: "[the finding] is amply supported by the record
and not clearly erroneous" (24 F. 3d at 1388))).
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 a 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, 24 F. 3d at 1387,
"... 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
stated that "[m]istakes of fact that are not manifest from [the]
record ... must be established by documentary evidence" (id.).
In this case there is no such documentary evidence and there is
no explanation (other than the statement that "our entry clerk
clearly made a mistake of fact") as to how or why the alleged
error occurred. However, there is documentary evidence that the
importer and broker knew, or should have known the nature of the
merchandise under consideration (i.e., each of the invoices for
the merchandise includes a statement that the footwear consists
of "samples of no commercial value" and is marked "Samples Not
For Resale" and each invoice bears the classification notation
"HTSUS 9811.00.60"). In such a case, the Court of International
Trade has held that relief under 19 U.S.C. 1520(c)(1) is not
available (see B.S. Livingston & Co. v. United States, 13 CIT 889
(1989)). In the Livingston case, the Court stated:
In this case, plaintiff has not claimed, and, indeed, cannot
state that it was unaware or mistaken as to any facts
pertaining to the merchandise [because the merchandise was
correctly described in the invoice and the asserted
classification was provided in the invoice]. Hence, in this
action plaintiff can only state that it "carelessly placed
the incorrect tariff classification on the entry documents.
...
Upon the record before the court, it is the determination of
the court that plaintiff has not stated a claim upon which
relief may be granted pursuant to section 1520(c)(1). [13
CIT at 894]
Further, if the protestant intended to allege that the allegedly
incorrect entry and liquidation was due to a clerical error, we
note that the Courts have held that the essence of clerical error
is the intent of the person preparing the document in which the
error was allegedly made and where there is no evidence from that
person as to his or her intent, the evidence is insufficient to
sustain a claim of clerical error (see, e.g., Pacific Trading Co.
v. United States, 20 Cust. Ct. 170, C.D. 1103 (1948); Francisco
Castelazo v. United States, 24 Cust. Ct. 294, C.D. 1250 (1950);
see also PPG Industries, Inc. v. United States, 7 CIT 118
(1984)).
Accordingly, we have no choice but to DENY the protest under
consideration.
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,
Director, International
Trade Compliance Division