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HQ 224131


October 30, 1992

LIQ-9-01-CO:R:C:E 224131 CB

CATEGORY: ENTRY

District Director
U.S. Customs Service
Otay Mesa Border Station
2500 Paseo International
San Ysidro, CA 92073

RE: Protest and Application for Further Review No. 2501-92- 100049; 19 U.S.C. 1520(c)(1); HTS 9802.00.80; correction of Cost Submission (CF 247)

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 facts, as can be determined from the file and presented by protestant, are as follows. The Import Specialist requested, from the importer, manufacturer's certificates for items claimed under HTS 9802.00.80. The importer did not have the certificates available and an extension was granted. The entries were ordered to be filed fully dutiable, without the benefit of HTS 9802.00.80, after the importer failed to provide the certificates. The fourteen entries which were the subject of this protest were filed during the period from April 10, 1991 to May 16, 1991. The required certificates were filed during May of 1991, after the subject entries were filed. Upon the filing of the certificates, entries made subsequent to May 19, 1991 were accepted with the claim for treatment under 9802.00.80, HTS. However, the fourteen entries in issue were liquidated dutiable.

The subject entries were liquidated between August 30, 1991 and October 18, 1991. On February 28, 1992, protestant submitted a written request to the District Director for permission to "take into account the amount of duty paid on these components, on our cost submission for the second half of 1991." According to the protest, the importer operates under "computed value" and is required to file a "Cost Submission" (CF 247) every six- months. The CF 247 lists actual material costs and actual production expenses. The correction was intended to rectify the duty paid on the U.S. components denied HTS 9802.00.80 treatment. The written request was submitted to the District Director and was denied on March 23, 1992. The subject protest was filed. It is protestant's contention that it should be allowed to amend its costs submissions. Or, in the alternative, that the subject entries be reliquidated pursuant to 19 U.S.C. 1520(c)(1).

ISSUES:

Whether the district director erred in denying protestant's request to correct the cost submissions?

Whether liquidation of the subject entries was a mistake of fact under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

Initially, we note that protestant's request for reliquidation under 19 U.S.C. 1520(c)(1) and its instant protest filed under 19 U.S.C. 1514(a)(7) was filed timely. Its application for further review of the protest is proper under 19 C.F.R. 174.24.

Issue #1

Section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514 (1982)), sets forth the proper procedure for an importer to protest the classification and appraisal of merchandise when it believes the Customs Service has misinterpreted the applicable law. A protest must be filed within ninety days after notice of liquidation or reliquidation. Under the entry processing scheme, it is the protest procedure that 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.

Section 520, Tariff Act of 1930, as amended (19 U.S.C. 1520 (c)(1)), is an exception to the finality of 1514. An entry may be reliquidated to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law. The sole remedy provided under 19 U.S.C. 1520(c)(1) is reliquidation of an entry. An error, regardless of its nature, is outside the scope of section 1520(c)(1) if the requested remedy is something other than the act of reliquidation of an entry. Here, the protestant is requesting a remedy that Customs does not have the authority to provide under section 520(c)(1), i.e. to allow the importer to file updated cost submissions.

Issue #2

It is well-settled law that the importer of record has the obligation to check the bulletin notice of liquidations posted in the customhouse at the port of entry to determine the date of liquidation and to preserve the right to protest. Tropicana Products, Inc. v. United States, 23 Cust. B. & Dec. No. 24, p. 16, Slip Op. No. 89-64 (Ct. Int'l Trade May 12, 1989). The only statutorily mandated notice of liquidation is the bulletin notice. See 19 C.F.R. 159.9(b), (c); Goldhofer Fahrzeugwerk GmbH & Co.v. United States, 13 Ct. Int'l Trade ___, 706 F. Supp. 892, 895 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989); United States v. Reliable Chemical Co., 605 F.2d 1179, 1183, 66 C.C.P.A. 123, 127, C.A.D.

There is no mistake of fact or clerical error in this case within the meaning of 19 U.S.C. 1520(c)(1). The error in this case was the broker's failure to perform his duty of finding out the correct date and rate of duty at which the entries were liquidated. Such an error does not entitle the importer to equitable relief. See Occidental Oil & Gas Co. v. United States, 13 Ct. Int'l Trade ___, Slip Op. No. 89-40 (March 29, 1989). If the protestant believed that the liquidated classification and appraisement decisions erroneously failed to take into account the correct cost submissions, the only proper course was to protest timely. Under 19 U.S.C. 1504 protestant had ninety days from the date of liquidation within which to protest the liquidation of the entries and to correct the cost submissions affected by these entries.

HOLDING:

The district director's denial of permission to update cost submissions is not subject to review under 19 U.S.C. 1520(c)(1) which only provides one remedy: reliquidation of an entry. Further, the broker's failure to check the bulletin notice of liquidation to determine the date of liquidation for the subject entries is not a mistake of fact, clerical error or other inadvertence correctable under 19 U.S.C. 1520(c)(1). Therefore, this protest should be denied.

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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