HQ 0224078 - Protest and Application for Further Review No. 3801-91- 103151; mistake of fact; 19 U.S.C. 1520(c)(1) - United States International Trade Commision Rulings

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HQ 224078

November 25, 1992

LIQ-9-01-CO:R:C:E 224078 CB

CATEGORY: ENTRY

Assistant District Director
Commercial Operations Division
U.S. Customs Service
477 Michigan Avenue
Detroit, MI 48226-2568

RE: Protest and Application for Further Review No. 3801-91- 103151; mistake of fact; 19 U.S.C. 1520(c)(1)

Dear Sir:

The above-referenced protest and application for further review was forwarded to this office for further review. We have considered the points raised and our decision follows.

FACTS:

The subject merchandise, a blow mold machine and feeder, were entered on August 8, 1990, and August 15, 1990, respectively. The entries were liquidated on November 23, 1990 and November 16, 1990, respectively. The record indicates that on November 22, 1990, by way of a "faxmemo" it was brought to protestant's attention that the subject merchandise was eligible for Canadian Free Trade Agreement (CFTA) duty treatment. The record further indicates in a letter dated January 31, 1991, from protestant to the exporter, that the parties were aware of the lack of the required Certificate of Origin back in August of 1990.

On August 6, 1991, protestant filed a 19 U.S.C. 1520(c) claim which was denied by Customs. The subject protest was subsequently filed.

ISSUE:

Whether liquidation of the subject entry, without the benefit of CFTA treatment, was a mistake of fact remediable under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

Section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)), provides that Customs may correct certain errors, if adverse to the importer, within one year of the date of liquidation. An entry may be reliquidated in order to correct a clerical error, mistake of fact, or inadvertence not amounting to an error in the construction a law. See 19 U.S.C. 1520(c) (1); 19 CFR 173.4. Section 520(c) is not an alternative to the normal liquidation-protest method of obtaining review, but rather affords limited relief where an unnoticed or unintentional error has been committed. See Computime, Inc. v. United States, 9 Ct. Int'l Trade 553, 554, 622 F. Supp. 1083, 1085 (1985); see also Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec. No. 29, p. 38, Slip Op. No. 89-89 (CIT June 27, 1989).

Section T.D. 54848 describes and distinguishes correctable errors under 1520(c)(1). Mistake of fact occurs when a person believes the facts to be other than what they really are and takes action based on that erroneous belief. The reason for the belief may be that a fact exists but is unknown to the person or he may believe that something is a fact when in reality it is not. Inadvertence connotes inattention, oversight, negligence, or lack of care while clerical error occurs when a person intends to do one thing but does something else, including mistakes in arithmetic and the failure to associate all the papers in a record under consideration. These errors are not necessarily mutually exclusive. However, errors in the construction of a law are not correctable under 1520(c). Those occur when a person knows the true facts of a case but has a mistaken belief of the legal consequences of those facts and acts on that mistaken belief. 94 Treas. Dec. 244, 245-246 (1959).

Protestant herein asserts a mistake of fact in its failure to file the Certificate of Origin prior to liquidation. In C. J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, C.D. 4327, 336 F. Supp. 1395 91972), aff'd, sub nom. United States v. C.J. Tower & Sons of Buffalo, Inc., 61 CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974), a mistake of fact was defined by the United States Customs Court as "a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist [see cases cited]. . . . A 'mistake of fact exists where a person understands the facts to be other than they are, whereas a mistake of law exists where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.'" C.J. Tower, 68 Cust. Ct. at 22, 336 F. Supp. at 1399 (quoting 58 C.J.S. Mistake, section 832). Yet, section 1520(c)(1) "is not remedial for every conceivable form of mistake or inadvertence adverse to an importer." Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct. 68, 69, 74, C.D. 4874 (1980). Under the entry processing scheme, it is the protest procedure which provides for redress of errors in the liquidation of entries. Virtually any error in the liquidation can be corrected if brought to Customs attention within 90 days of the date of liquidation. Such redress is not available if the 90-day period has expired. It is not the purpose of the reliquidation provision of 19 U.S.C. 1520(c)(1) to extend the period for filing objections that are properly adressed under the protest procedure.

The regulations clearly set out under what circumstances the late filing of free entry and reduced duty documents will be accepted. 19 CFR 10.112. As stated in Occidental Oil & Gas Co. v. United States, 13 CIT 244 (1989), "[i]n construing section 10.112, the court has accepted documentation establishing U.S. origin after liquidation, only in cases where the liquidation was timely protested." 13 CIT at 249. The subject liquidations were not timely protested. The record indicates that protestant was aware of the absence of the Certificates of Origin as early as August 27, 1990. The entries were not liquidated until November, 1990 and did not become final until 90 days thereafter. Protestant had sufficient time within which to file the required documentation prior to the liquidations becoming final. In Cavazos v. United States, 9 CIT 628 (1985), the court held that since the plaintiff failed to supply the required documentation, "the appropriate customs officer made a legal determination as to the classification of the merchandise on the basis of the facts presented. . . ." 9 CIT at 631. Classification of the subject merchandise is a mistake of law which is not correctable under 19 U.S.C. 1520(c)(1).

HOLDING:

Protestant's failure to file the required certificates prior to the liquidations becoming final is not a mistake of fact correctable under 19 U.S.C. 1520(c)(1). As protestant did not file a protest within 90 days of the date of liquidation, you should deny this protest in full.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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