HQ 0221020 - Application for Further Review of Protest No. 3901-7- 000804; Timeliness of Protest; Sufficiency of Evidence; 19 U.S.C. 1520(c)(1) and 1514 - United States International Trade Commision Rulings

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HQ 221020

November 16, 1990

LIQ-9-01-CO:R:C:E 221020 PH

CATEGORY: LIQUIDATION

Regional Commissioner of Customs
North Central Region
55 East Monroe Street, Suite 1501
Chicago, Illinois 60603-5790

RE: Application for Further Review of Protest No. 3901-7- 000804; Timeliness of Protest; Sufficiency of Evidence; 19 U.S.C. 1520(c)(1) and 1514

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the points raised by your office and the protestant. Our decision follows.

FACTS:

According to the file, on September 1, 1986, the protestant imported a quantity of cotton handbags. The entered value of the handbags was $17,068. and they were entered under item 706.41.06, Tariff Schedules of the United States (TSUS), at 20 percent ad valorem, with duty of $3,413.60 which was paid. The entry date for this importation was September 4, 1986, and the entry summary date was September 9, 1986. The entry was liquidated on October 10, 1986.

On October 13, 1986, the broker for the protestant filed a petition that the entry be reliquidated under 19 U.S.C. 1520(c)(1) because "[t]he entry writer inadvertently classified the handbags as TSUS 706.4106. The cotton H/L handbags with cotton P/L lining are more specifically provided for under TSUS 706.3640." The request was granted and the entry was reliquidated on November 28, 1986, with duty of $1,399.58. The difference between the duty as originally liquidated and that as reliquidated was refunded.

On April 15, 1987, the broker for the protestant filed a petition that the reliquidated entry be again reliquidated under 19 U.S.C. 1520(c)(1) because "[i]n our original petition we inadvertently forgot to deduct the C&F charges from the invoice total. We are now requesting the C&F charges of $5508.90 be deducted from the invoice total and that duty be re-calculated, resulting in a refund of $451.74." On May 5, 1987, this second petition was denied on the basis that "[n]o evidence [was] presented to substantiate [the] amount for deduction of freight." The broker was advised of its right to protest this denial of its petition under 19 U.S.C. 1514.

On July 10, 1987, the broker did protest the denial of its April 15, 1987, petition. The basis for this protest is stated to be "copies of commercial invoice clearly stating terms of sale as C & F; copy of airway bill indicating prepaid airfreight; and copy of petition as originally presented." In the course of review, questions were raised about the timeliness of the protest. Further review was approved on October 5, 1987.

ISSUES:

(1) Is a protest timely filed when it is filed within 90 days of the denial of a petition filed under 19 U.S.C. 1520(c)(1) to reliquidate an entry, even though the protest is not filed within 90 days of the original liquidation of the entry or the reliquidation (pursuant to an earlier timely petition filed under 19 U.S.C. 1520(c)(1)) of the entry?

(2) If the protest under consideration is timely filed, was there sufficient evidence to grant the petition filed under 19 U.S.C. 1520(c)(1), the denial of which is the subject of this protest?

LAW AND ANALYSIS:

Under section 514(a), Tariff Act of 1930, as amended (19 U.S.C. 1514(a)), a protest may be filed against, among other things, "the refusal to reliquidate an entry under section 1520(c) of [title 19]." Under paragraph (c)(2) of section 514, a protest of a decision, order, or finding described in paragraph (a) of section 514 must be filed within 90 days after the notice of liquidation or reliquidation or the date of the decision as to which the protest is made.

Under section 520(c)(1), Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1):

Notwithstanding a valid protest was not filed, [Customs] 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 to [Customs] within one year after the date of liquidation or exaction ....

In this case each of the petitions under 19 U.S.C. 1520(c)(1) were timely filed (i.e., within one year from the date of liquidation or exaction). The protest filed under 19 U.S.C. 1514 was filed within 90 days after the date of the decision as to which the protest was made (i.e., the protest (filed on July 10, 1987) of the April 15, 1987, petition under 19 U.S.C. 1520(c)(1) was filed within 90 days of the denial of that petition on May 5, 1987). Therefore, the protest was timely filed.

In the evidence submitted by the protestant, there is no evidence, other than the protestant's statement in its second petition and in the protest that the freight charge was $5,508.94, of how much the freight charge was. To qualify for reliquidation of an entry under 19 U.S.C. 1520(c)(1), the denial of which the protestant is protesting, three conditions must be satisfied. These conditions are:

(1) a clerical error, mistake of fact, or other inadvertence exists;

(2) the clerical error, mistake of fact, or other inadvertence is manifest from the record or established by documentary evidence; and

(3) the clerical error, mistake of fact, or other inadvertence is brought to the attention of Customs within the time requirements of the statute.

(See PPG Industries, Inc. v. United States, 4 CIT 143, 146 (1982).) Even if the alleged failure to deduct "C&F" charges from the invoice total in this case qualifies as a clerical error, mistake of fact, or other inadvertence (which we doubt, see PPG Industries, id., 4 CIT at 147, and Hambro Automotive Corp. v. United States, 66 CCPA 113, 118, 603 F. 2d 850 (1979)), it is not "manifest from the record or established by documentary evidence." According to the Court in PPG Industries, id., quoting in part from the lower court in Hambro, id, (Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220, C.D. 4761 (1978)):

... it is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact. The burden and duty is upon the plaintiff to inform the appropriate Customs official of the alleged mistake with "sufficient particularity to allow remedial action." [4 CIT at 147-148, emphasis added; see also, United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), in which the Court stated "[d]etermination of issues in customs litigation may not be based on supposition."]

In the absence of sufficient evidence establishing the amount of the freight charge, the protest must be DENIED.

HOLDINGS:

(1) A protest is timely filed when it is filed within 90 days of the denial of a petition filed under 19 U.S.C. 1520(c)(1) to reliquidate an entry, even though the protest is not filed within 90 days of the original liquidation of the entry or the reliquidation (pursuant to an earlier timely petition filed under 19 U.S.C. 1520(c)(1)) of the entry.

(2) The evidence submitted in this case was insufficient to grant the petition filed under 19 U.S.C. 1520(c)(1), the denial of which is the subject of this protest. The protest is DENIED.

Sincerely,

John Durant, Director

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