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HQ 222746


November 7, 1990

LIQ-9-01-CO:R:C:E 222746 CB

CATEGORY: LIQUIDATION PROTEST

Regional Commissioner
U.S. Customs Service
Northeast Region
Suite 801
10 Causeway Street
Boston, Massachusetts 02222-1056

RE: Application for further review of Protest No. 0901-90- 750080 under 19 U.S.C. 1520(c)(1)

Dear Sir:

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

FACTS:

Protestant is seeking reliquidation of the subject entries, pursuant to 19 U.S.C. 1520(c)(1), on the grounds that it erroneously paid duties with respect to certain merchandise eligible for preferential duty treatment under the United States- Canada Free Trade Agreement ("FTA").

Protestant alleges that the entries subject to this protest cover merchandise for which no duty preference was claimed at the time of entry because it was not known that the articles were of Canadian origin. According to the information provided, the entries were made and liquidated between January 30, 1989, and October 24, 1989. Protestant claimed and the merchandise was liquidated under subheading 3208.20.0000, HTSUSA, at an ad valorem rate of 3.6 percent. Two blanket Exporters Certificate of Origin (ECO) were submitted by protestant together with its 1520(c)(1) protest. One ECO has a range of effective dates from January 1, 1989, to June 30, 1989. The other blanket ECO has a range of effective dates from July 1, 1989, to December 31, 1989. The signature date for both certificates is June 9, 1989.

The district office has denied the protest on the ground that the claim involves a question of law. The district's position is that, on three of the four entries, protestant should have sought reliquidation based on 19 U.S.C. 1514. Moreover, that FTA treatment should have been claimed on two of the entries because they were made subsequent to the signature date on the ECO.

ISSUE:

Whether a mistake of fact correctable under 19 U.S.C. 1520 (c)(1) occurred when the importer failed to assert FTA eligibility?

LAW AND ANALYSIS:

Section 514 of the Tariff Act of 1930, as amended (19 U.S. C. 1514 (1982 & Supp. 1985)), sets forth the proper procedure for an importer to protest the classification and appraised value of its merchandise when it believes Customs has misinterpreted the applicable law and incorrectly classified the imported merchandise. Section 514 makes the tariff treatment of goods final and conclusive, unless the classification is protested within ninety days of liquidation.

Section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)), provides that Customs may correct certain errors, if adverse to the importer, within one year from the date of liquidation. An entry may be reliquidated in order to correct a clerical error, mistake of fact, or inadvertence not amounting to an error in the construction of a law. See 19 U.S.C. 1520 (c)(1); 19 CFR 173.4. Section 520(c) is not an alternative to the normal liquidation-protest method of obtaining review, but rather affords limited relief where an unnoticed or unintentional error has been committed. See Computime, Inc. v. United States, 9 Ct. Int'l Trade 553, 554, 622 F. Supp. 1083, 1085 (1985); see also Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec. No. 29, p. 38, Slip Op. No. 89-89 (CIT June 27, 1989).

In the instant case, the protestant alleges that it was unaware that the merchandise may have been entitled to preferential duty treatment under the FTA until after liquidation. The record indicates otherwise. Two certificates of origin were issued by the exporter. Both were signed on June 9, 1989. Three of the subject entries were liquidated subsequent to the issuance of the certificates. Protestant was well able to file a 1514 protest and present the certificates at such time. Protestant has failed to satisfactorily provide evidence indicating why it was unable to file such a timely protest, within the reliquidation period, with regard to the three entries liquidated between September 1, 1989, and October 24, 1989. Therefore, relief cannot be granted under 1520(c)(1).

Regarding the entry liquidated on February 17, 1989, the Canadian exporter completed and signed the ECO on June 9, 1989, more than 90 days after liquidation. Therefore, the protestant
did not have the option of filing a 1514 protest. The record indicates that a certificate was not timely prepared. Consequently, the one entry liquidated on February 17, 1989, does fall within the scope of 1520(c)(1).

HOLDING:

Protestant has failed to substantiate its claim with respect to the entries liquidated between September 1, 1989, and October 24, 1989. Therefore, this protest should be denied with respect to those entries. This claim should be approved with respect to the entry liquidated on February 17, 1989.

This protest should be Denied in part and Approved in part.

Sincerely,

John Durant, Director

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