HQ 0223999 - Protest No. 1601-91-200117; Refusal to Refund Voluntary Tenders; Estimated Antidumping and Countervailing Duties; 19 U.S.C. 1514(a)(3); 19 U.S.C. 1514(a)(5); 19 U.S.C. - United States International Trade Commision Rulings

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HQ 223999

February 9, 1993

PRO-2-01-CO:R:C:E 223999 SLR

CATEGORY: ENTRY BONDS

District Director of Customs
200 East Bay St
Charleston, SC 29401-2611

RE: Protest No. 1601-91-200117; Refusal to Refund Voluntary Tenders; Estimated Antidumping and Countervailing Duties; 19 U.S.C. 1514(a)(3); 19 U.S.C. 1514(a)(5); 19 U.S.C.

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have examined its contents and our decision follows.

FACTS:

This protest involves eleven entries made on behalf of the protestant, Thermacote-Welco, between August 1985 and March 1986. The entries were liquidated between October 1985 and March 1988.

Each of the entries in question included low fuming brazing rod (LFB) from New Zealand which was subject variously to suspension of liquidation or outstanding orders in antidumping and countervailing duty cases taken against LFB from New Zealand. However, the entries were processed without a deposit of the antidumping and countervailing duty estimated amounts. Subsequently, Customs, by telephone, requested the voluntary tenders of these deposits. Voluntary tenders were made by the protestant's broker with the understanding that the entries were still open. Most of the entries, however, had already been liquidated.

In a letter dated April 5, 1991, your office informed the protestant that it had no authority to process the eleven entries for a refund of the voluntary tenders. On July 3, 1991, the subject protest was filed against this decision.

Inasmuch as the liquidations occurred a number of years ago, it is your position that neither a protest nor a 520(c) application would be timely. The protestant maintains that the liquidation dates are irrelevant as they not only preceded the deposit dates, but did not include any amount for antidumping or countervailing duties. The protestant argues that even under

520(c), the date from which the right to request the correction of a clerical error runs from the date of exaction. It submits that the date of exaction here is the date upon which it was advised of the port's decision not to refund the monies, i.e., April 5, 1991.

In the alternative, the protestant maintains that the refund of the monies is clearly within the ambit of 520(a)(2) which has no time limits and allows for the refund of fees, charges, or exactions, other than duties and taxes, erroneously or excessively collected.

ISSUE:

Is a refund due the protestant?

LAW AND ANALYSIS:

Our office concurs with your position that no authority exists for the processing of the voluntary tenders for a refund. Consequently, this protest should be denied.

Our records indicate that for one of the eleven entries, the voluntary tender of estimated antidumping and countervailing duties occurred prior to the liquidation of that entry. Under section 514(a)(5) of the Tariff Act of 1930, as amended (19 U.S.C. 1514(a)(5)), an importer may challenge the liquidation of an entry by filing a protest. The protest, however, must be in writing and must be filed within 90 days after the notice of liquidation. Here, no protest was filed within the 90-day protest period. Consequently, with respect to this entry, the instant protest is untimely filed.

Our records further indicate that for at least three of the remaining entries, voluntary tenders occurred after liquidation but within the 90-day protest period; the remainder of the voluntary tenders were made beyond the protest period. Under 19 U.S.C. 1514(a)(3), "all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury" are protestable. The protest, however, must be in writing and must be filed within 90 days from the date of the decision as to which the protest is made.

The request for voluntary tenders in this case did not amount to a "charge or exaction." To constitute an exaction under 1514(a)(3), there would have had to have been some compulsion on the part of Customs requiring the payment of monies. Carlingswitch, Inc. v. United States, 85 Cust Ct. 63, C.D. 4873, 500 F. Supp. 223 (1980), aff'd, 68 CCPA 49, C.A.D. 1264, 651 F.2d 768 (1981). This did not occur here. Customs merely requested voluntary payments. No penalty was asserted against the broker and there was no demand for payments.

Section 520(a)(2) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(a)(2)), provides for the refund of fees, charges, or exactions, other than duties or taxes, excessively collected. As discussed, the voluntary tenders did not amount to exactions. Consequently, there can be no refund under

Section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)), provides that notwithstanding a valid protest not filed, a Customs officer may reliquidate an entry for clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of law, as long as the error is adverse to the importer, manifest from the record, and is brought to the attention of the appropriate Customs officer within one year after the date of the liquidation or exaction. Because there was no exaction, the time to challenge the alleged errors would run from the dates of liquidation. As no mistake of fact or error was brought to the attention of Customs within one year of the liquidations, no relief is in order under 520(c)(1).

HOLDING:

Based on the foregoing, the instant protest is denied in full. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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