HQ 0082496 - Application for Further Review of Protest No. 3901-6-001263, dated October 27, 1986, filed by Schenkers International Forwarders, Inc. (Schenkers) on behalf of Deli Design and Development Co., challenging your refusal to reliquidate entry No. 85-781560-0 under 19 U.S.C. 1520(c)(1). This entry, dated August 12, 1985, was liquidated on October 11, 1985. - United States International Trade Commision Rulings

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HQ 082496

March 15, 1989

CLA-2 CO:R:C:G 082496 LS

CATEGORY: CLASSIFICATION

TARIFF NO.: TSUS 647.0315

District Director of Customs
610 S. Canal Street
Chicago, Illinois 60607

RE: Application for Further Review of Protest No. 3901-6-001263, dated October 27, 1986, filed by Schenkers International Forwarders, Inc. (Schenkers) on behalf of Deli Design and Development Co., challenging your refusal to reliquidate entry No. 85-781560-0 under 19 U.S.C. 1520(c)(1). This entry, dated August 12, 1985, was liquidated on October 11, 1985.

Dear Sir:

This is our decision on the above-referenced Application for Further Review of Protest which was forwarded to our office by your memorandum dated March 16, 1987.

FACTS:

The merchandise in question consists of several display cases for food products, and parts thereof, used in retail stores. Among the items are: external refrigerated bakery cases, non-refrigerated bakery cases, refrigerated deli cases, humid warm cases with heat lamps and cutting board, steam distribution equipment, humidification device, heated knife holder, and stainless steel work boards. The importer, Deli Design and Development Co., entered all the merchandise under item 647.0315, Tariff Schedules of the United States Annotated (TSUSA), which provides for hinges, fittings and mountings not specially provided for, suitable for use with furniture and cabinets, dutiable at the rate of 6.7 percent ad valorem. The entry was liquidated as entered on October 11, 1985. Customs Form 7501 shows that the entered value of the merchandise is $136,339.

On July 21, 1986, Schenkers, on behalf of Deli Design and Development Co., filed a petition requesting reliquidation of the entry under 19 U.S.C. 1520(c)(1), which would result in a refund of $6,719.21. Schenkers alleged that, due to "a clerical error mistake of fact," the entered value and classification on Customs Form 7501 were incorrect. It argued that the entered value should have been $71,044, rather than $136,338.85, and that the classification provision for the deli cases should have been item 661.3560, rather than item 647.03, TSUSA. Item 661.3560 provides for "refrigerators and refrigerating equipment, whether or not electric, and parts thereof: Other, except parts," dutiable at the rate of 3.4 percent ad valorem. The petition filed under 19 U.S.C. 1520(c)(1) was denied on the basis that the request to reclassify the merchandise under item 661.3560 was a matter involving a construction of law. The denial stated that the humid warm cases and steam distribution equipment were not classifiable in item 661.35, TSUSA. The denial also stated that the invoices reflect that the correct total value is $137,324 or $162,324, rather than $71,044 as claimed.

A protest was filed on October 27, 1986, pursuant to 19 U.S.C. 1514(a)(7), against the refusal to reliquidate the entry under 19 U.S.C. 1520(c)(1). In the protest Schenkers argued that the humid warm cases and non-refrigerated bakery cases should be classified in item 684.4850, TSUSA, which provides for "electro- thermic kitchen and household appliances: Other: Other appliances and apparatus: Other," dutiable at the rate of 4.3 percent ad valorem," and that the remaining merchandise should be classified in item 661.3560, TSUSA. Schenkers also argued that the dutiable value of the merchandise is $108,639. Based upon the claimed changes in classification and value, Schenkers asserted that the refund should be $5,214.18.

ISSUE:

Did the alleged misclassification of the subject merchandise constitute an error correctable under 19 U.S.C.

LAW AND ANALYSIS:

19 U.S.C. 1520(c)(1) provides:

(c) Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct--

(1) a 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 any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction;

A mistake of fact has been defined as "a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist." C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, C.D. 4327 (1972), aff'd, 61 CCPA 90, C.A.D. 1129 (1974). Although Schenkers uses the language "clerical error mistake of fact," it does not present an argument that a fact existed which was unknown to it or that it believed that something was a fact when in reality the fact did not exist. No such mistake of fact is manifest in the record or established by documentary evidence, as required by 19 U.S.C. 1520(c)(1).

Instead, Schenkers' argument is directed at the alleged incorrect classification and subsequent liquidation of the entry. It has been clearly established that a determination by a customs officer as to the classification of merchandise is in the nature of a conclusion of law. Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262, C.D. 4547 (1974); Fibrous Glass Products, Inc. v. United States, 63 Cust. Ct. 62, 65, C.D. 3874 (1969); United States v. Imperial Wall Paper Co., 14 Ct. Cust. Appls. 280, 282, T.D. 41886 (1926).

19 U.S.C. 1520(c)(1) itself provides that an error which occurs in the construction of a law is not subject to correction under that statute. In both Fibrous Glass Products and United China & Glass Co. v. United States, 66 Cust. Ct. 207, C.D. 4191 (1971), the Customs Court found that the protestants' requests for reliquidation under 19 U.S.C. 1520(c)(1) to correct a clerical error or mistake of fact were actually attempts to correct alleged errors of judgment by the customs collectors in classifying the subject merchandise under the wrong provisions of the Tariff Act of 1930. Those errors of judgment were found to be mistakes in the applicable law. The court held in both cases that the appropriate remedy was to file a protest under 19 U.S.C. 1514 within 60 days after liquidation. Since the protests were not filed within the statutory limit, they were dismissed for lack of jurisdiction.

Further, the court noted in C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 21, C.D. 4327 (1972) that 19 U.S.C. 1520(c)(1) is "not an alternative to the normal liquidation protest method of obtaining review," but that it offers "limited relief" in those situations specifically defined therein. See also Computime, Inc. v. United States, 9 CIT 553, 556 (1985).

19 U.S.C. 1514(a) provides that the decisions of customs officers which deal with the legality of orders and findings as to classification and liquidation are final and conclusive unless a protest challenging such decisions is filed within 90 days after the date of the notice of liquidation.

Thus, the appropriate remedy in the instant case was to file a protest challenging the classification and liquidation within 90 days after the date of the notice of liquidation. Since a protest was not filed within the period prescribed by 19 U.S.C. 1514, Schenkers cannot now raise the issue of improper classification by means of a protest against the denial of its 19 U.S.C. 1520(c)(1) claim. Schenkers can only raise the issue of whether the alleged misclassification was an error correctable under 19 U.S.C. 1520(c)(1). Schenkers has not raised that procedural issue. Nevertheless, we find that the 1520(c)(1) claim was correctly denied because, for the reasons discussed above, the alleged misclassification was not an error correctable under 19 U.S.C. 1520(c)(1).

As to the protestant's claim regarding the appraised value, we are unable to establish legally why any adjustment is in order.

HOLDING:

Accordingly, the protest should be denied. A copy of this decision should be sent to the protestant along with the Form 19 Notice of Action.
Sincerely,

John Durant, Director

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