HQ 0084837 - Decision on Application for Further Review of Protest No. 1401-4-000201. - United States International Trade Commision Rulings

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HQ 084837

November 28, 1990

CLA-2:CO:R:C:G 084837 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 700.45

District Director of Customs
101 East Main Street
Norfolk, Virginia 23510

RE: Decision on Application for Further Review of Protest No. 1401-4-000201.

Dear Sir:

This protest was filed against your decision in the liquidation on June 14, 1983, of entry number 83-128072-7, dated May 19, 1983, covering a shipment of shoes manufactured in Korea.

FACTS:

The merchandise at issue is footwear. The footwear was entered by the protestant's customhouse broker under item 700.80, TSUS, which provides for footwear with uppers of fibers, with soles of materials other than leather, other. The entry documents included a commercial invoice that described the shoes as containing more than 51 percent leather.

That description was repeated on the Special Customs Invoice (CF 5515). The description on the Invoice Details for Footwear (CF 5523) repeated the statement that "the leather part is more than 51 percent." It was also stated on this form that the material in chief value of the upper is leather; and the material in chief value of the entire shoe is leather. It is listed that leather comprises 20 percent by weight of the entire shoe and that leather comprises 60 percent of the material of the exterior
surface of the upper. The detailed component value breakdown also lists the total material costs as $.82 per pair for leather, $.36 per pair for rubber and plastics, and $.48 per pair for textiles.

On October 1, 1984, a protest was filed claiming that a clerical error was made and clearly item 700.80, TSUS, is the incorrect tariff provision. The protestant states that because the shoe is in chief value of leather it should be classified under item 700.45, TSUS, as footwear of leather.

ISSUE:

ISSUE 1

Whether the entry should be reliquidated under Section

Whether the footwear is in chief value of leather.

LAW AND ANALYSIS:

ISSUE 1

The statute 19 USC 1520(c)(1), 19 CFR 173.4, provides as follows:

(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.

In 94 Treas. Dec. 244, 245-6, T.D. 54848 (1959), Customs issued a statement containing the following guidelines:

Clerical error occurs when a person intends to do one thing but does something else, e.g., he meant to write "par. 231" but wrote "par 131." It includes mistakes in arithmetic and the failure to associate all the papers in a record under consideration.

Mistake of fact occurs when a person believes the facts to be other than they really are and takes some action based on that erroneous belief. The reason for the belief may be that a fact exists but in unknown to the person or he may be convinced that something is a fact when in reality it is not. . . .

Inadvertence connotes inattention, oversight, negligence, or lack of care. For example, an article might be classified properly under a paragraph providing for it by name but through oversight is given a rate different from any rate provided under that paragraph.

It should be noted that "clerical error, mistake of fact, or other inadvertence" are not necessarily mutually exclusive terms. In other words some "mistakes of facts" also might be clerical errors or other inadvertence; or some "clerical errors" also might be mistakes of fact or other inadvertence, and so on.

In this case it is clear that a clerical or other inadvertence did occur. Therefore, under 520(c)(1), reliquidation should be allowed.

ISSUE 2

The component cost breakdown that was submitted at the time of entry indicates that the shoes at issue are in chief value of leather. We have no reason to believe that the information submitted is incorrect. Therefore, Customs must presume that the shoes are in chief value of leather.

HOLDING:

The footwear at issue should be reclassified under item 700.45, TSUS, as footwear in chief value of leather.

The protest is allowed. A copy of this decision should be attached to the Form 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John Durant, Director

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