LIQ-9-01-RR:CR:DR 227782 IOR
Port Director
U.S. Customs Service
1624 East 7th Avenue, Ste. 101
Tampa, FL 33605-3706
Attn: Chief, Trade Compliance
RE: Protest and Application for Further Review No. 1801-97-100054; clerical error, mistake of fact or other
inadvertence; 19 U.S.C. 1520(c)(1); 19 U.S.C. 1514;
sufficiency of evidence
Dear Sir:
The above-referenced protest was forwarded to this office for
further review. Our review follows a July 1, 1998 request for
supporting documentation which, according to the protest would be
forthcoming, to which no response was received. We have
considered the evidence provided, the arguments made by the
protestant, and Customs records.
FACTS:
The subject protest covers 12 entries which were made from July
8, 1994 through December 15, 1994. According to the
representative entry summary, CF 7501, the merchandise was
entered as "RUB, TIRES, NEW, AUTO: RADIALS" under subheading
4011.10.0010/4%, Harmonized Tariff Schedule of the United States
(HTSUS). The entries were liquidated on dates ranging from
November 14, 1994 through March 31, 1995. By letter dated August
4, 1995, protestant's broker requested reliquidation under 19
U.S.C. 1520(c)(1) for the subject 12 entries (it is unclear
whether all 12 entries were clearly identified in the petition
for reliquidation, however customs records do reflect that
petitions for reliquidation under 19 U.S.C. 1520(c)(1) were
filed for all 12 entries on September 1, 1995). The reasons
given for the request are as follows:
1) The broker made a clerical error in entering the
shipment in ABI. The broker left out the "A" and duty
was assessed in error against a GSP eligible product.
These goods were manufactured in Argentina, a GSP
eligible country receiving duty free status.
....Please find attached backup documentation to
support this request.
....Due to clerical error the mistake was not
discovered until an auditor discovered the mistake.
The file does not contain any documentation that appears to have
been submitted with the letter of August 4, 1995. By letter
dated December 18, 1996, the protestant's broker requested
refunds of the duty paid, per the instructions given in the GSP
Renewal Act of 1996, and also made reference to the 520(c)
reliquidation request. By letter dated January 6, 1997, Customs
denied the request for reliquidation under 19 U.S.C. 1520(c)(1),
on the grounds that no documentary evidence exists to support the
claim for such refunds. Customs further denied the refund
requested under the GSP Renewal Act of 1996 as not applicable to
the subject entries, and stated that a refund request under the
Uruguay Rounds Agreement Act which retroactively reinstated GSP
after the September 30, 1994 expiration, was untimely.
The instant protest was filed on April 4, 1997, and protests the
denial of reliquidation of the 12 entries under 19 U.S.C.
1520(c)(1). The grounds stated for the protest are as follows:
...we submit that the failure to enter the subject
merchandise, tires from Argentina, was due to simple
inadvertence and not the result of an error in the
construction of law. We are gathering information that
will prove that [the broker] knew of the
legal/statutory ramifications of entering tires from a
GSP beneficiary country. We will also show that the
importer imports approximately 90% of its tires from
Brazil, a non-beneficiary country for that merchandise.
This fact led to the ministerial mistake by a
relatively new entry clerk that the subject shipments
were not eligible for GSP treatment not by a mistake in
construing the law and its consequences, but through
inattention and the expectation that the subject goods
were not eligible for duty free treatment.
This mistake carried over to the period when GSP
eligibility lapsed. Because this same entry clerk did
not expect the importations of tires for [protestant]
to be from a GSP eligible country, (s)he did not use
the Special Program Indicator "A" on the A.B.I. filed
entries.
The protestant requests that action on the protest be withheld
pending submission of documentation supporting the asserted
facts. Despite requests, no subsequent submission of documents
occurred. The documents submitted with the protest consist of
the Entry Summary, Entry/Immediate Delivery, invoice for the
merchandise from Argentina, a packing list for the merchandise,
and a document providing shipment information from the shipper.
ISSUE:
May relief be granted under 19 U.S.C. 1520(c)(1) in this
protest?
LAW AND ANALYSIS:
Initially we note that this protest was timely filed pursuant to
19 U.S.C. 1514(c)(3). The date of decision to deny
reliquidation under 19 U.S.C. 1520(c)(1), was January 6, 1997,
and the protest was filed on April 4, 1997. For purposes of this
decision we also find that a petition for reliquidation was
timely filed for all 12 entries. In addition, the refusal to
reliquidate an entry under 19 U.S.C. 1520(c)(1) is a protestable
matter pursuant to 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), 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
a relatively new entry clerk was led to make the ministerial
mistake that the subject merchandise was not eligible for GSP
treatment due to the fact that 90% of protestant's merchandise
comes from a non-GSP-beneficiary country. As a result, the
merchandise was classified without the "A" prefix. The
protestant claims that the alleged error was due to a mistake of
fact, inadvertence, or clerical error. In this case, the alleged
mistake is not manifest from the record. There is no documentary
evidence on the claimed clerical error, mistake of fact, or other
inadvertence other than the statements by the protestant's
representative in the request for reliquidation and the protest.
This lack of evidence was brought to protestant's attention by
the port in Customs denial of the petition for reliquidation, and
by this office, and the protestant has been provided the
opportunity to substantiate its claim.
In this case, the only explanation given as to how or why the
alleged error occurred, is that the clerk was "relatively new"
and that 90% of the protestant's imports come from non-beneficiary countries. There is documentary evidence in the file
that the entry documents were clear that the merchandise was
imported from Argentina, at the time of entry, and prior to the
expiration of the liquidation/protest period.
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, 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, supra. In the instant case, there is
no affidavit from the clerk as to the facts of the claimed
clerical error, mistake of fact, or other inadvertence (for an
example of the use of such evidence, see C.S.D. 89-87).
Protestant asserts that the error was not the result of an error
in the construction of law. However, we cannot simply accept
such assertions without any corroboration (see Bar Bea Truck
Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983), with
regard to the sufficiency as evidence of counsel's unsupported
assertions).
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 decision.
The protest is denied.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division