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HQ 223993


December 27, 1991

LIQ-9-01-CO:R:C:E 222993 PH

CATEGORY: LIQUIDATION

District Director of Customs
Buffalo, New York 14202

RE: Application for Further Review of Protest No. 0901-90- 750084; Clerical Error, Mistake of Fact, or Other Inadvertence; Construction of Law; 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 by your office and the protestant. Our decision follows.

FACTS:

According to the file, between February 8, 1989, and August 23, 1989, the protestant entered various kinds of merchandise, indicated to be automotive goods, under subheadings 8483.90.80, 3926.90.9050, 8708.99.5090, 4016.99.50, 8708.99.50, and 7007.11.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Twelve (12) such entries are involved in this protest. The entries were liquidated between February 23, 1989, and November 24, 1989.

On February 15, 1990, the broker of the protestant filed a request that the entries be reliquidated under 19 U.S.C. 1520(c)(1) because the merchandise was eligible for preferential duty treatment under the provisions of the United States-Canada Free-Trade Agreement (FTA). According to the broker, "... no duty preference was claimed at the time of entry because it was not known that the articles were of Canadian origin as defined in ... the FTZ." The broker stated that properly executed Exporter's Certificates of Origin (CF 353's) were enclosed with the 19 U.S.C. 1520(c)(1) request. Citing Customs Telex 00732 (U.S./Canadian Free Trade Agreement - Fact Sheet 7) and C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 336 F. Supp. 1395, C.D. 4237 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974), the broker contended that "failure to claim preferential duty treatment under the FTA at the time of entry was the result of a mistake of fact correctable under 19 U.S.C. 1520(c)(1)."

The protestant's request for reliquidation was denied on April 2, 1990, on the basis that the claim was not correctable under 19 U.S.C. 1520(c)(1) because the error which was claimed to be the basis of the request "... involve[d] the construction of law." On May 11, 1990, the protestant filed the protest under consideration and applied for further review. The basis for the protest was the same as that stated in the initial request for reliquidation under 19 U.S.C. 1520(c)(1), described above. In further support of its protest, the protestant stated that Customs in Detroit approved a request for reliquidation under 19 U.S.C. 1520(c)(1) in identical circumstances. The protestant stated that it was enclosing a copy of Customs approval notice in that case but, according to the Customs Protest and Summons Information Report (CF 6445A), no such notice was received by Customs, nor is any such document in the file. The protest was forwarded for further review on September 28, 1990.

ISSUE:

In this case, as described in the FACTS portion of this ruling, was the failure of the protestant to claim preferential duty treatment under the FTA 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. In this regard, however, we note that one of the entries protested was liquidated on November 24, 1989. Therefore, the request for reliquidation under 19 U.S.C. 1520(c)(1), received by Customs on February 16, 1989, was filed within the 90 days provided for the filing of a protest under 19 U.S.C. 1514. The Courts have held that a request for reliquidation under 19 U.S.C. 1520(c)(1) is sufficient as a protest under 19 U.S.C. 1514 if it conveys enough information to apprise Customs of the importer's intent and the relief sought and if it is timely (see Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D. 4547, 377 F. Supp. 955 (1974, and Labay International, Inc., v. United States, 83 Cust. Ct. 152, C.D. 4834). Accordingly, with regard to this entry only, if a properly executed certificate of origin has been provided for the merchandise in this entry which clearly identifies the goods for which FTA preference is being sought (see Customs Telex 00732 (U.S./Canadian Free Trade Agreement - Fact Sheet 7)), the request for reliquidation under 19 U.S.C. 1520(c)(1) is treated as a protest under 19 U.S.C. 1514 and is granted. (Although the file contains Certificates of Origin purporting to relate to the entry liquidated on November 24, 1989, the material available to us in the file does not clearly identify the goods for which FTA preference is sought. We understand that your file may contain additional materials which should be reviewed in this regard.) Such relief may not be granted with regard to the other entries included within this protest because the request for reliquidation under 19 U.S.C. 1520(c)(1) was not received within the 90-day protest period as to those entries (see Computime, Inc. v. United States, 9 CIT 553, 556, 622 F. Supp. 1086 (1985)).

Since the request for reliquidation under 19 U.S.C. 1520(c)(1) was not received within the 90-day protest period with regard to the other entries which are covered by this protest, 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 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.

Even if we assume that the merchandise under consideration qualifies for preferential duty treatment under the FTA, the requirements and conditions in 19 U.S.C. 1520(c)(1) must still be met. (In this regard we note that the materials in the file do not appear to clearly demonstrate that all of the merchandise qualifies for such treatment under the FTA; see Telex 00732, cited above, which states that although subsequently filed claims for FTZ treatment may be allowed under 19 U.S.C. 1514 and 1520(c)(1), the certificate of origin for the merchandise "must clearly identify the goods for which FTA preference is being claimed.")

One of the requirements under section 1520(c)(1) is that the clerical error, mistake of fact, or other inadvertence which is the basis for the request for relief may not amount to an error in the construction of law. A mistake of law, for which relief cannot be had under section 1520(c)(1), has been defined to exist "where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts" (Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850 (1979), quoting 58 C.J.S. Mistake, section 832; and C.J. Tower & Sons of Buffalo, Inc. v. United States (cited above)).

In the February 15, 1990, request for relief under 19 U.S.C. 1520(c)(1), the protestant stated that no duty preference was claimed at the time of entry because it was not known that the articles were of Canadian origin as defined in Article 301 of the FTA. In the protest, the protestant stated that relief should have been granted because "the importer of record did not originally know the fact that the merchandise was entitled to preferential duty treatment under the FTA until the necessary research was completed to establish a fact which was originally unknown." (Emphasis in original.) We note that under the definition of a mistake of law, set forth above, the entitlement of merchandise for preferential duty treatment under the FTA would be a legal consequence, and not a fact. (With regard to the case of C. J. Tower & Sons, cited above and by the protestant, see subsequent cases distinguishing that case (i.e., Concentric Pumps, Ltd. v. United States, 10 CIT 505, 643 F. Supp. 623 (1986), and NEC Electronics U.S. A. Inc. v. United States, 13 CIT 214, 709 F. Supp. 1171 (1989).)

Even if the allegation in the request for relief that it was not known that the articles were of Canadian origin is considered to be an allegation of a mistake of fact, the record available to us does not make manifest the clerical error, mistake of fact, or other inadvertence, nor is it established by documentary evidence, as required by 19 U.S.C. 1520(c)(1). According to the Court in PPG Industries, Inc. v. United States, 4 CIT 143 (1982), quoting, in part, from the lower court in Hambro (cited above) (Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F. Supp. 1220 (1978)):

... it is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact. The burden and duty is upon the plaintiff to inform the appropriate Customs official of the alleged mistake with "sufficient particularity to allow remedial action." [4 CIT at 147-148; see also, United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), in which the Court stated "[d]etermination of issues in customs litigation may not be based on supposition."]

In this case there is no evidence on the claimed clerical error, mistake of fact, or other inadvertence other than the statements by the protestant's representative in the request for reliquidation and the protest (described above) (see Bar Bea Truck Leasing Co., Inc., v. United States, 5 CIT 124, 126 (1983), with regard to the sufficiency as evidence of a counsel's unsupported assertions). There is no explanation of what facts would have, if known, resulted in the protestant claiming preferential duty treatment under the FTA, or of when those facts, if any, became known to the protestant (according to the Court in the Concentric Pumps case, ignorance of the existence of a specific item in the Tariff Schedule is not the kind of mistake which may be corrected under 19 U.S.C. 1520(c)(1), nor was that contemplated in the C. J. Tower & Sons case (see 643 F. Supp. at 625); for the significance of when the facts became known to the protestant, see the C. J. Tower & Sons case). There is no affidavit by an appropriate employee of the protestant and/or manufacturer or foreign exporter as to the facts of the claimed clerical error, mistake of fact, or other inadvertence (for an example of the use of such evidence, see C.S.D. 89-87).

As to the allegation by the protestant that Customs in Detroit approved a request for reliquidation under 19 U.S.C. 1520(c)(1) in identical circumstances, we are unable to comment on that allegation without reviewing that case and the materials associated with it (we note that documentation relating to the alleged request for reliquidation is not in the file and that you stated such documentation was not received with the protest). Even if this is true, we do not accept the proposition that a decision by a Customs district director governs all similar requests for reliquidation under 19 U.S.C. 1520(c)(1) or protests. As explained above, we do not believe that there was authority for granting the request for reliquidation in this case (except as to the entry for which the request for reliquidation was received by Customs within the 90-day protest period, see above).

HOLDING:

The failure of the protestant to claim preferential duty treatment under the FTA, as described in the FACTS portion of this ruling, was not a clerical error, mistake of fact, or other inadvertence for which relief may be granted under 19 U.S.C. 1520(c)(1). The Protest/Application for Further Relief is DENIED except with regard to the entry liquidated on November 24, 1989, which is GRANTED as timely filed under 19 U.S.C. 1514, provided that the certificate of origin provided for the merchandise in this entry clearly identifies the goods for which preferential duty treatment under the FTA was sought.

The protest is DENIED, in part, and GRANTED, in part. A copy of this decision should be attached to the Form 19 and provided to the protetant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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