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HQ 222895


March 12, 1992

LIQ-9-01-CO:R:C:E 222895 TLS

CATEGORY: ENTRY RELIQUIDATION

Regional Commissioner
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center Rm. 762
New York, New York 10048-0945

RE: Further review of protest #1001-0-003421; claim for reliquidation under 19 U.S.C. 1520(c)(1); misclassification of merchandise on entry documents by broker.

Dear Sir:

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

FACTS:

The protestant entered merchandise through three separate entries on February 10 through 13, 1989. These entries were liquidated on March 17, 1989. The goods were classified on the entry documents under subheading 4202.32.20 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) as other containers with an outer surface of plastic sheeting. Under this subheading, the goods carry a 20% duty rate. The importer contends that the correct classification of this merchandise is under 3923.10.00 of HTSUSA as cases of plastic and similar articles. Under such classification, the merchandise is dutiable at a 3% rate.

The importer initiated a claim on one of the entries under 19 U.S.C. 1520(c)(1) to correct what it saw as a misclassification of the merchandise. In particular, the protestant claimed that the broker and Customs officials were not aware of all of the facts necessary to make a proper determination on the classification of the goods. The claim was dated December 20, 1989, which is within one year of the entry date, but more than 90 days after the liquidation date. The claim was denied on February 2, 1990 because Customs saw the error as a mistake in the application of the law, not a mistake correctable under section 520(c)(1). Customs officials maintained that there existed no basis for requesting the lower rate of duty because Customs had not ruled on the proper legal classification until after these goods had been liquidated.

ISSUE:

Whether the broker's lack of knowledge of all the pertinent facts is sufficient to support a claim of mistake of fact under 19 U.S.C. 1520(c)(1) even though the importer of record was apparently aware of the necessary facts.

LAW AND ANALYSIS:

Under section 520(c)(1) of the Tariff Act of 1930, the following is provided for:

(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 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;... (emphasis added.)

The protestant contends that the broker and Customs officials acted on the erroneous belief that the goods were made of plastic sheeting and did not know they were manufactured by the injection mold method. No evidence has been submitted to support its position, however. The importer cites to T.D. 54848 (1959) to support the proposition that the alleged misclassification is not an error in the construction of law. It maintains that the true facts must be known before such an error occurs. This argument presupposes that the true facts were not known.

With regard to the Customs officials' knowledge, or lack thereof, the Customs Court has ruled on the issue. It has been held that a determination by customs officers as to the classification of merchandise is a conclusion of law, and an erroneous classification of merchandise by the District Director is not a mistake correctable under section 520(c)(1). Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262, 377 F. Supp. 955, C.D. 4547 (1974). The court went on to hold that such errors can only be remedied by filing a protest under 19 U.S.C. 1514 within 60 days after liquidation. Id.; Fibrous Glass Products, Inc. v. United States, 63 Cust. Ct. 62, C.D. 3874 (1969), appeal dismissed, 57 C.C.P.A. 141 (1970); United China & Glass Co. v. United States, 66 Cust. Ct. 207, 211, C.D. 4191 (1971). Thus, even assuming there is a misclassification here on Customs part, it does not constitute a mistake correctable under 520(c)(1).

As noted above, the subject protest was not filed within 90 days after liquidation in this case. Consequently, the importer does not have the option of sustaining a claim under section 514 of the Tariff Act. Of course, the importer has also claimed a mistake was made under 520(c)(1) because the broker was not aware of all the pertinent facts. This claim is based upon the Customs ruling that held plastic compact and lipstick cases made of plastic sheeting (the subject merchandise in this case) to be classifiable under HTSUSA subheading 3923.10.00 as articles for the conveyance or packing of goods, of plastic, boxes, cases, crates and similar articles. Customs ruling HQ 083122 (June 12, 1989). Of significant note is the date of the ruling; it was issued almost three months after the liquidation date of March 17, 1989. Obviously, HQ 083122 was not in effect at the time of liquidation. Therefore, the ruling could not possibly have any bearing on the importer's (or broker's) classification decision in this case. See, e.g., Customs ruling HQ 722299 (June 24, 1983).

Given that there existed no legal classification decision on the subject merchandise at the time of liquidation, it cannot be said that there was a mistake of fact in this case. As noted above, if there is a misclassification here, it was a mistake in the conclusion of law, which not correctable under section 520. Mattel, Inc. v. United States, supra. The protestant has not put forth any evidence of a mistake of fact other than legal counsel's assertion that one was made. It has been documented and noted that the protestant's claims under section 520(c) have generally been approved when submitted to Customs Los Angeles port, as opposed to the claims submitted to Customs New York port, which have generally been denied. We do not find any relevance these data might have with the present case, however. The findings here are based on the facts and evidence presented pertaining to this case, along with the application of the relevant law. The CIT has ruled that mere assertions by a complainant without supporting evidence will not be regarded as sufficient to overturn a Customs official's decision. Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983). Therefore, notwithstanding the broker's alleged lack of knowledge, neither the importer nor the broker made a mistake of fact correctable under 19 U.S.C. 1520(c)(1).

HOLDING:

To the extent that a mistake was made in the classification decision in this case, it is a mistake in the construction of the law and as such is not a mistake of fact correctable under 19 U.S.C. 1520(c)(1). Accordingly, this protest should be denied in full. A Form 19, Notice of Action, should be attached to this ruling to be sent to the protestant.

Sincerely,

John Durant, Director

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