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HQ 223398


December 24, 1991

LIQ-9-01-CO:R:C:E 223398 C

CATEGORY: ENTRY LIQUIDATION

Nicholas R. Devine
Assistant District Director
Office of Commercial Operations
United States Customs Service
Detroit, MI 48266

RE: Protest and application for further review no. 3801-1- 100186; protest of denial of request for reliquidation under 19 U.S.C. 1520(c)(1)

Dear Mr. Devine:

This responds to the referenced protest and application for further review which you submitted by memorandum of July 30, 1991 (PRO-1-CO:CT DA; P1100186/TXTFRISC). The protest objects to your denial of PROTESTANT's petition for reliquidation filed under 19 U.S.C. 1520(c)(1). We have reviewed the record and our decision follows.

FACTS:

The facts, as we understand them, are as follows: PROTESTANT entered merchandise under a tariff provision subject to the Automotive Products Trade Act of 1965 (APTA). Merchandise subject to the APTA is entitled to duty-free entry in accordance with General Note 3(c)(iii) of the Harmonized Tariff Schedule of the United States (HTSUS) (19 U.S.C. 1202). Under section 10.84(a)(1) of the Customs Regulations, duty-free entry under the general note is accomplished by submission of a certificate establishing eligibility for such entry, along with any verifying documentation deemed necessary. (The Customs officer may determine that the certificate is unnecessary.) 19 C.F.R. 10.84(a)(1). The entry was not accompanied by the certificate, nor any documentation indicating that the merchandise was eligible for duty-free entry. The entry was liquidated "no change" at a dutiable rate. More than 90 days after the date of liquidation, but within one year of such date, PROTESTANT submitted a letter informing the district director that "the merchandise should now be reclassified duty free under APTA as the goods are consigned to an original equipment manufacturer." The letter requested that the entry be "liquidated (or reliquidated)" accordingly and that duty be refunded. Customs accepted the letter as a petition for reliquidation under 19 U.S.C. 1520(c)(1) to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law. Since the letter/petition failed to allege facts amounting to correctable error under the statute, you denied the reliquidation request. Within 90 days of your denial, PROTESTANT filed the instant protest and application for further review under 19 U.S.C. 1514(a)(7), asserting that denial of the reliquidation request was improper.

ISSUE:

Was PROTESTANT's request for reliquidation under 19 U.S.C. 1520(c)(1) improperly denied?

LAW AND ANALYSIS:

Under 19 U.S.C. 1520(c)(1), an entry can be reliquidated, notwithstanding that a protest was not timely filed, where a clerical error, mistake of fact, or inadvertence not amounting to an error in the construction of a law occurred and resulted in an erroneous liquidation. This procedure is not a substitute for the protest procedure of 19 U.S.C. 1514, which is available for reliquidation for any valid purpose, including the correction of errors of legal construction. The reliquidation procedure of 19 U.S.C. 1520(c)(1) applies in only limited circumstances: 1) where there has occurred one of the specified correctable errors; 2) the error produces results adverse to the importer; and 3) the alleged error is manifest from the record or established by documentary evidence. 19 U.S.C. 1520(c)(1). The burden is on the party requesting reliquidation to support its petition by bringing to Customs attention, within one year of the date of liquidation, the nature of the error, either as it appears from the record or by submitting documentary evidence.

When a request for reliquidation under 19 U.S.C. 1520(c)(1) is denied, such denial can be protested under 19 U.S.C. 1514(a)(7). Review of a protest so made is limited to consideration of the denial of the reliquidation request; that is, was the denial proper or not? Issues that were not timely raised during the initial protest period - within 90 days of the liquidation - cannot later be raised on a protest of a 1520(c)(1) denial.

The issue under the instant protest is whether or not PROTESTANT's 1520(c)(1) reliquidation request was improperly denied. We believe that the reliquidation request was properly denied for failure on the part of PROTESTANT to allege facts that would indicate that some kind of correctable error occurred causing an erroneous liquidation. PROTESTANT failed to bring to the attention of Customs the nature of the error that allegedly occurred. There was no reference to any information or document already in the record that would establish correctable error; nor was there submission of evidence tending to establish the error. Your denial of PROTESTANT's 1520(c)(1) request was not improper under the statute. Key to this determination is the fact that merchandise that is destined to an original equipment manufacturer (OEM) is not, by that fact alone, automatically or necessarily entitled to duty-free treatment under the HTSUS and regulations. The entitlement is dependent upon establishment of eligibility. An importer cannot simply assert, particularly in the context of a 1520(c)(1) reliquidation request, that merchandise is destined to an OEM and expect that such assertion is sufficient to establish eligibility. More important, such an assertion does not, by itself, establish an error correctable under section 1520(c)(1).

You have asserted that PROTESTANT failed to provide documentation to demonstrate that a correctable error under the statute occurred. You further asserted that if PROTESTANT had submitted such documentation, along with evidence that the merchandise was eligible for duty-free treatment under the APTA, the 1520(c)(1) reliquidation request would have been granted. Contrarily, PROTESTANT asserts that documentation supporting duty-free entry had been submitted with the 1520(c)(1) request.

Upon review of this protest, we are constrained to conclude that there is no evidence, beyond PROTESTANT's bald assertions, to establish that appropriately probative documentation was provided with the 1520(c)(1) request - documentation establishing either that the merchandise was entitled to duty-free treatment or that a correctable error had occurred. One cannot establish entitlement to duty-free treatment under the APTA by simply notifying Customs, after entry, that merchandise has been consigned to an original equipment manufacturer. More importantly, one does not establish, by this notification, that correctable error under section 1520(c)(1) occurred.

We conclude also that the record reviewed for this protest does not contain any documentation that would indicate that an error correctable under the statue occurred or that the merchandise in question is entitled to duty-free treatment under the APTA. Customs, in determining a protest, cannot and will not assume that allegations are facts. In a protest under 19 U.S.C. 1514(a)(7), the burden is on protestant to establish that Customs erred in denying a reliquidation request.

Given the foregoing conclusions, we must deny the protest on the basis that your denial of PROTESTANT's 1520(c)(1) request appears to have been proper under the law and regulations.

HOLDING:

Customs properly denied PROTESTANT's request for reliquidation under 19 U.S.C. 1520(c)(1) on the basis that PROTESTANT failed to allege specific facts demonstrating that an error correctable under the statute occurred. The burden is on the petitioner to establish the error, either as it appears from the record or by submitting documentary evidence.

Based on the foregoing, you are instructed to deny the protest and to inform PROTESTANT of this decision in accordance with 19 CFR 174.30(a). Please provide PROTESTANT with a copy of this denial.

Sincerely,

John Durant, Director

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