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HQ 223528


January 21, 1992

LIQ-9-01-CO:R:C:E 223528 PH

CATEGORY: LIQUIDATION

District Director of Customs
Federal Building, Room 198
N.W. Broadway & Glisan Streets
Portland, Oregon 97209

RE: Application for Further Review of Protest No. 2904-90- 000163; Clerical Error, Alleged Mistake in Transcribing Entry Number on Protest; Manifest from Record; 19 U.S.C.

Dear Sir:

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

FACTS:

According to the file, in 11 entries made in October and November of 1990, the protestant entered certain merchandise, stated to have been originally entered and liquidated as parts of telephonic apparatus, parts of transmission apparatus, or as transmission apparatus. The entries were liquidated on February 8 or 15, 1991. On April 24, 1991, the liquidated classification of printed wiring boards in the entries was protested, based on the approval of another protest.

One of the entries listed in the April 24, 1991, protest did not exist. When it was suggested that the check digit of the entry number was incorrect, that number was changed and a legitimate entry number was found. This second entry number was substituted for the incorrect entry. Subsequently, Customs advised the protestant that the substitute entry did not contain any of the merchandise the classification of which was being protested. By letter of May 2, 1991, the protestant asked that the substitute entry be deleted from the protest. On June 18, 1991, the protest was granted, except for the deleted entry and except for another entry which the protestant stated should not have been protested.

On June 26, 1991, the protestant requested that an entry dated October 15, 1990, and liquidated February 8, 1991, be reliquidated under 19 U.S.C. 1520(c)(1). The protestant referred to the April 24, 1991, protest and stated that the entry for which reliquidation was requested was originally listed in the protest under one entry number, changed to a second entry number with a different check digit, and then deleted when Customs advised that the second entry did not contain any of the merchandise covered by the protest. The protestant stated that, "[i]n reviewing the situation, it is clear that the clerical error was not the check digit, but the last digit of the entry number, so that we should have referenced the above entry, which does contain printed wiring boards." The last digit (not including the check digit) in the entry for which the section 1520(c)(1) request was filed was a 5 and the last digit of the originally protested entry (determined to be non-existent) was a 6; otherwise the numbers were the same.

Reliquidation was requested with classification of the printed wiring boards in the covered entry under subheading 8534.00.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), dutiable at the rate of 5.3%, instead of subheading 8517.90.40, HTSUSA, dutiable at the rate of 8.5%. A refund of $8,880 was requested, based on the difference in the duty rates for the printed wiring boards covered in the entry. Copies of the entry and invoice were included with the request.

On September 12, 1991, the request for reliquidation under 19 U.S.C. 1520(c)(1) was denied on the basis that "showing an erroneous entry number on a protest [was not] a clerical error correctable under [section] 520(c)." On October 15, 1991, the protestant filed the protest under consideration and applied for further review. The basis for the protest was the "[misstatement of] the entry number by one digit" in the protest; as well as the suggestion by Customs that the error in the originally listed entry number was in the check digit. The protest was forwarded for further review on October 22, 1991.

ISSUE:

In this case, as described in the FACTS portion of this ruling, was the alleged mistake in transcribing the entry number in the earlier protest a clerical error, mistake of fact, or other inadvertence for which relief may be granted under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

Initially, we note that both the request for reliquidation under 19 U.S.C. 1520(c)(1) and the protest of the denial of that request, under 19 U.S.C. 1514(a), were timely filed.

To obtain relief in this case, the protestant must establish that its request for reliquidation under 19 U.S.C. 1520(c)(1) should have been granted. Under section 520(c)(1), Customs may reliquidate an entry to correct a clerical error, mistake of fact, or other inadvertence "in any entry, liquidation, or other customs transaction" not amounting to an error in the construction of a law, when certain conditions are met. These conditions are that the clerical error, mistake of fact, or other inadvertence must be adverse to the importer, manifest from the record or established by documentary evidence, and brought to the attention of Customs within one year after the date of liquidation of the entry.

A "clerical error" has been stated by the Courts to be "a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention" (see PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984), and cases cited therein; see also, Treasury Decision (T.D.) 54848, wherein an example of a clerical error is given as: "[a person] meant to write 'par. 231' but wrote 'par. 131'"). In Ruth F. Sturm's Customs Law & Administration (3rd Edition), it is stated that "[c]lerical error has been found where mistakes were made in copying or typing figures or where figures have been transposed", and a number of Customs Court decisions are cited for this proposition (section 9.4, at pages 5 and 6).

Clearly, clerical error is alleged in this case (i.e., the misstatement of the entry number by one digit in the protest. To grant relief in this case, however, the alleged clerical error must be one for which relief may be granted under 19 U.S.C. 1520(c)(1). Under that provision, the clerical error must be in an entry, liquidation or other Customs transaction. A "Customs transaction" is defined in 19 CFR 177.1(d)(3) as "an act or activity to which the Customs and related laws apply." On the basis of this definition, we have ruled that the filing of a protest under 19 U.S.C. 1514 is a Customs transaction for purposes of section 1520(c)(1) (see ruling 726634).

Also, the alleged clerical error must be manifest from the record or established by documentary evidence. In this regard, two of the cases cited in Ruth F. Sturm's Customs Law & Administration (referred to above) are helpful. In Friedlaender Co. v. United States, 59 T.D. 1527, Abstract 14979 (1931), relief from an alleged clerical error in the transposition of values was granted on the basis of "[a] careful examination of the official papers [showing] that through manifest clerical error [invoiced and appraised] values were transposed upon the entry." In S. Jackson & Sons, Inc. v. United States, 40 Cust. Ct. 511, Abstract 61794 (1958), evidence consisting only of the official papers regarding the entry, including a copy of the appraiser's statement of the value of the type of merchandise involved, was stated to make a prima facie case of clerical error under section 1520(c)(1) (although relief was denied on other grounds). In this case the Court stated (40 Cust. Ct. at 512):

The documentary proof establishes that an error was committed .... Official writings are prima facie evidence of the facts stated therein and will control in the absence of evidence to the contrary. The record is devoid of such evidence. Furthermore, we have no doubt that the error was a clerical one. * * * And though no oral testimony was adduced at the hearing to show the intention of the person who made the erroneous entry, and it has been said that the "essence of clerical error is intention" ..., it is our opinion that the very nature of the error, when viewed in the light of the facts and circumstances of this case, shows that this was a mistake of carelessness or inadvertence, and that it was the intention of the person who prepared the worksheet to use [the correct value], and not the intention to enter thereon the incorrect unit value .... Therefore, we can but conclude that the error ... was, in the absence of evidence to the contrary, clerical in nature.

In the case under consideration, documentary establishes that an error was committed (i.e., a non-existent entry was protested). The "very nature of the error, when viewed in the light of the facts and circumstances of the case" (i.e., that an entry covering merchandise like that successfully protested had an entry number with one digit, one number off) "shows that this was a mistake of carelessness or inadvertence [which] we can but conclude ... was, in the absence of evidence to the contrary, clerical in nature." (Quoted material paraphrased from above quotation of the S. Jackson & Sons case.) There is no evidence to the contrary. Therefore, we conclude that the protestant's request for reliquidation under 19 U.S.C. 1520(c)(1) should have been granted and, accordingly, the protest is granted, provided, that the printed wiring boards under consideration are correctly classified under subheading 8534.00.00, HTSUSA.

HOLDING:

The mistake in transcribing the entry number in the earlier protest, as described in the FACTS portion of this ruling, was a clerical error for which relief may be granted under 19 U.S.C. 1520(c)(1), provided, that the proper classification of the printed wiring boards under consideration is under subheading 8534.00.00, HTSUSA.

The protest is GRANTED, subject to the above proviso. A copy of this decision should be attached to the Form 19, Notice of Action, to be sent to the Protestant.

Sincerely,

John Durant, Director

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