HQ 0222595 - Application for further review of Protest No. 2304-6- 000159 under 19 U.S.C. 1520(c)(1) - United States International Trade Commision Rulings

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HQ 222595

February 1, 1991

LIQ-9-01-CO:R:C:E 222595 CB

CATEGORY: PROTEST LIQUIDATION

Regional Commissioner
U.S. Customs Service
Suite 500
5850 San Felipe Street
Houston, TX 77057-3012

RE: Application for further review of Protest No. 2304-6- 000159 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 alleges a mistake of fact with respect to the classification of the subject entries and seeks relief under 19 U.S.C. 1520(c)(1). According to protestant, the subject merchandise was erroneously entered by the customhouse broker, and later liquidated, as ordinary glass.

The merchandise at issue is colored sheet glass imported from Mexico. At the time of entry classification under TSUS item 542.31 or 542.37 was asserted by importer's broker. Protestant claims that the broker's mistake resulted in a mistake of fact on the part of the Commodity Specialist when classifying the merchandise. Protestant claims the mistake in classification was brought to the attention of the Customs Service by way of a letter dated May 28, 1985. The letter pointed out the error in the entry and liquidation of thirty-seven (37) entries. Fourteen (14) of the entries were re-liquidated. The remaining twenty- three (23) entries are the subject of this protest.

ISSUE:

Whether the subject entries qualify for reliquidation under 19 U.S.C. 1520(c)?

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 of 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).

Section T.D. 54848 describes and distinguishes correctable errors under 1520(c)(1). Mistake of fact occurs when a person believes the facts to be other than what they really are and takes action based on that erroneous belief. The reason for the belief may be that a fact exists but is unknown to the person or he may believe that something is a fact when in reality it is not. Inadvertence connotes inattention, oversight, negligence, or lack of care while clerical error occurs when a person intends to do one thing but does something else, including mistakes in arithmetic and the failure to associate all the papers in a record under consideration. These errors are not necessarily mutually exclusive. However, errors in the construction of a law are not correctable under 1520(c). Those occur when a person knows the true facts of a case but has a mistaken belief of the legal consequences of those facts and acts on that mistaken belief. 94 Treas. Dec. 244, 245-246 (1959).

The protestant's claim for relief under 19 U.S.C. 1520 (c)(1) is that both the Customshouse broker and Import Specialist were unaware of the actual nature of the glass covered by these entries. The merchandise is described, in both the commercial invoice and consumption entry, as grey sheet glass. The record -3-
indicates that the merchandise was liquidated as entered without an examination. The record also indicates that there was no disagreement, between the importer and the Customs Service, as to the issue of whether the merchandise was polished glass. The dispute was only as to the inferior heading within item 542, TSUS, although that item provides for glass not polished.

As stated by the Court of International Trade in PPG Industries, Inc. v. United States, 7 Ct. Int'l Trade 118, 124 (1984), three conditions must be satisfied before an entry can be reliquidated to correct a mistake of fact:

(1) a mistake of fact must exist;
(2) the mistake must be manifest from the record or established by documentary evidence; and
(3) the mistake of fact must be brought to the attention of the Customs Service within the time requirements of the statute.

In the instant case, protestant has satisfied all three requirements. A mistake of fact has occurred. There is evidence of the mistake, e.g. the fact that the District approved another 520(c) claim made by the same customs broker on behalf of the same importer with respect to the same type of glass. The fact that the District approved a similar claim is not determinative; however, it does support protestant's claim. And, there is documentary evidence of protestant's attempt to bring the mistake to the attention of the Customs Service within the statutory time limitation. Therefore, the record sufficiently establishes a clerical error, mistake of fact or inadvertence on the part of the broker and Import Specialist.

HOLDING:

Based on the information provided and the record, protestant has met the requirements of a 1520(c) request for reliquidation. Therefore, protest should be approved in full.

Sincerely,

John Durant, Director

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