HQ 0221352 - Further review of Protest No. 3801-7-002269 - United States International Trade Commision Rulings

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HQ 221352

May 14, 1990

LIQ-9-01-CO:R:C:E 221352 GG

CATEGORY: LIQUIDATION

District Director
U.S. Customs Service
477 Michigan Avenue
Detroit, Michigan 48226

RE: Further review of Protest No. 3801-7-002269

Dear Sir:

This is in response to the protest referenced above.

FACTS:

The protestant, C.J. Tower & Sons of Buffalo, Inc. ("C.J. Tower"), filed 2 entries on May 29, 1986, and June 2, 1986, on behalf of its client, Trenton Textile Mills, covering imported "Blair" and "Lucy" fabric. The fabric was classified under item 336.64 of the Tariff Schedules of the United States (TSUS), as woven fabrics, of wool, dutiable at 6 cents per lb. plus 33.8% ad valorem. The shipper, Import Customs Services, invoiced both kinds of fabric as 100% wool, even though the Lucy fabric was really a 50% wool/50% acrylic blend.

These entries were liquidated "no change" on June 20, 1986, and July 18, 1986. On October 20, 1986, Customs received a letter from C.J. Tower, which stated that the original classification was erroneous and that the 2 entries should be reliquidated under item 357.15, TSUS. This particular tariff provision covers woven tapestry fabrics and woven upholstery fabrics, of wool, dutiable at 6 cents per lb. plus 7% ad valorem. A reliquidation under this item number would result a in a $5840.76 refund of duties paid. The October 20, 1986, letter, which came to Customs' attention more than 90 days after the date of both liquidations, was treated as a request for reliquidation under section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)). However, because no clerical error, mistake of fact or inadvertence not amounting to an error in the construction of a law was brought to Customs' attention, the request was denied.

Customs afforded C.J. Tower the opportunity to resubmit the 19 U.S.C. 1520(c)(1) request with additional information, and the company subsequently sent in several letters and samples, whose purpose was to convince Customs that the fabric should have been classified as upholstery fabric, which, as stated earlier, is subject to a substantially lower rate of duty. Again, Customs denied relief, and on August 31, 1987, informed C.J. Tower that it should have protested the classification issue under the protest procedures outlined in section 514 of the Tariff Act of 1930, as amended (19 U.S.C. 1514).

C.J. Tower filed the protest at issue on November 30, 1987, against Customs' refusal to reliquidate under 19 U.S.C.

ISSUE:

Whether relief may be granted under 19 U.S.C. 1520(c)(1) to correct an alleged error in the classification of merchandise?

LAW AND ANALYSIS:

The explanation given by the protestant in support of the current protest is that Customs erred in refusing to reliquidate under 19 U.S.C. 1520(c)(1), because there had been a mistake of fact, inadvertence, or clerical error when C.J. Tower originally classified the merchandise under item 336.64, TSUS. C.J. Tower implies that there was a "factual mistake" or "error" because the fabric involved was made specifically for use as upholstery fabric, but was classified under a non-upholstery item number.

The courts have consistently taken the position that an erroneous classification of merchandise is not a clerical error, mistake of fact, or other inadvertence within the meaning of 19 U.S.C. 1520(c)(1), but is an error in the construction of a law. See, Mattel Inc. v. United States, 377 F.Supp. 955, 72 Cust.Ct. 257, C.D. 4547 (1974); and C.J. Tower & Sons of Buffalo, Inc. v. United States, 336 F.Supp. 1395, 68 Cust. Ct. 17, C.D. 4327, affd. 499 F.2d 1277, 61 CCPA 90 (1972). Here, the only error alleged by C.J. Tower is one involving the classification of fabric, which could only have been corrected by the filing of a 19 U.S.C 1514 protest within 90 days of the original liquidation. In this regard, it is interesting to note that it appears that C.J. Tower may have attempted to seek relief by filing a timely 19 U.S.C. 1514 protest; its original request for relief was dated several days before the 90-day period had expired, however was not filed with Customs until after the expiration of that period. This at least suggests that the importer was cognizant of the proper avenue of recourse. It is questionable, however, whether duties would have been refunded even had the October 20, 1986, letter been received in time for consideration as a 19 U.S.C. 1514 protest, because the district maintains that the fabric was classified accurately when originally entered.

An examination of the documentation submitted with the protest reveals a possible mistake of fact, but one which should not be construed as warranting reliquidation under 19 U.S.C. 1520(c)(1). This involves the shipper's erroneous statement that both fabrics consisted of 100% wool. A mistake of fact exists where a person understands the facts to be other than they are. C.J. Tower, 68 Cust. Ct. at 22. Under this definition, Customs Import Services might have made a factual mistake when it invoiced all the fabric as 100% wool, when in fact the Lucy fabric was a 50% acrylic/50% wool blend. However, this particular mistake was immaterial because there is no indication that the fiber content was a factor that prompted the importer to classify the fabric under item 336.64, TSUS, as opposed to under item 357.15, TSUS. Both a 100% wool fabric and a 50% wool/50% acrylic blend fabric could have been correctly classified under either of these two TSUS item numbers. By way of explanation, the common descriptive term, "of wool" appears in item 336.64, TSUS, as well as in item 357.15, TSUS; "of wool" under the TSUS means that the article is wholly or in chief value of the named material. Wool is more valuable than acrylic therefore a 50% wool/50% acrylic blend fabric would be considered to be "of wool"; similarly, a fabric consisting totally of wool would also fall under this term. Thus, the Lucy fabric would probably have been classified the same way had it been known that it was a wool/acrylic blend, instead of 100% wool as listed on the invoice. A 19 U.S.C. 1520(c)(1) reliquidation is not justified on account of this factual mistake because the mistake was not a factor in deciding to classify, or liquidate, the fabric under item 336.64, TSUS.

In summary, the protestant has failed to demonstrate that there was a clerical error, mistake of fact, or inadvertence in the entry or liquidation of this merchandise which would warrant reliquidation under 19 U.S.C. 1520(c)(1). The error, if any, was an error in the construction of a law which could only have been remedied by the filing of a 19 U.S.C. 1514 protest within 90 days of liquidation. You are directed to deny the protest in full.

HOLDING:

An error in the classification of merchandise is correctable by the filing of a 19 U.S.C 1514 protest within 90 days of liquidation; relief is not available under 19 U.S.C 1520(c)(1).

Sincerely,

Jerry Laderberg
Acting Director

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