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HQ 224725


July 13, 1993

LIQ-9-01-CO:R:C:E 224725 AJS

CATEGORY: LIQUIDATION

Richard R. Rulon, Esq.
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793

RE: Reliquidation; 19 U.S.C. 1520(c)(1); Notice of liquidation; Penrod Drilling Co. v. U.S.; U.S. v. Reliable Chem. Co.; Omni U.S.A., Inc. v. U.S.

Dear Mr. Rulon:

This is in reply to your letter of January 7, 1993, concerning Durabla Canada, Inc., and the reliquidation of certain entries of compressed gasket materials.

FACTS:

On October 22, 1991, Customs issued HQ 089821. This ruling classified one of Durabla's compressed gasket materials (i.e., Durlon) within item 771.43, Tariff Schedules of the United States (TSUS), and dutiable at the rate of 4.2% ad valorem. This ruling was requested by Durabla to resolve a dispute between Customs Ogdensburg District and Durabla.

Based on HQ 089821, Durabla contacted Customs Champlain field office to request a refund of duty which Durabla had paid on certain entries of Durlon made in 1988. On December 4, 1991, Durabla submitted a written request for a refund of these duties. However, Customs had reliquidated these entries at the latest on October 19, 1990, within item 771.41, TSUS, and at the duty rate of 6% ad valorem. Conversations with the Champlain office indicate that these entries where reliquidated based upon HQ 084293 (September 26, 1989), which classified Durlon within item 771.41, TSUS, if not in rolls and item 771.43, TSUS, if in rolls. On June 3, 1992, the Champlain field office responded to Durabla's request of December 4. Customs treated the request as one for reliquidation under 19 U.S.C. 1520(c)(1) and denied the request because it was untimely filed.

Your letter requests, in accordance with 19 CFR 177.11(b)(6), that Customs Champlain field office be directed to apply the holding in HQ 084293 as it relates to item 771.43, TSUS, to reliquidate at the 4.2% rate those Durlon entries that it reliquidated at the 6% rate. In addition, you request that we direct the Champlain field office to issue a refund to Durabla on three additional entries, applying the 4.2% duty rate, since Durabla has never received any refund on those entries.

ISSUE:

Whether the subject entries may be reliquidated pursuant to 19 U.S.C. 1520(c)(1) if the request for reliquidation was not filed within one year after the date of liquidation.

LAW & ANALYSIS:

We initially note that no claim is made that the importer did not receive proper notice of liquidation. Nevertheless, we think it is important to mention that "proper notice of liquidation refers to the bulletin notice of liquidation." See Penrod Drilling Co. v. United States, 13 CIT 1005, 1009, 727 F. Supp. 1463, 1467 (1989), aff'd 925 F. 2d 406 (1991). Furthermore, "the date of liquidation shall be the date the bulletin notice is posted in the customshouse." United States v. Reliable Chem. Co., 605 F.2d 1179, 1183 (1979). It is the importer who "has the burden for examining all notices posted to determine whether its goods have been liquidated, and to protest timely." Penrod Drilling, 13 CIT 1009, 727 F. Supp 1467. Therefore, it is the importers responsibility to remain abreast of any liquidations of their merchandise and to take timely action if appropriate under section 1520(c)(1).

19 U.S.C. 1520(c) provides that the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct-

(1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction (emphasis added).

In this instance, Durabla's request of December 4, 1991, requests reliquidation of certain entries. In a letter of June 3, 1992, the Champlain field office informed Durabla
that reliquidation of these entries was improper because the request was not filed within one year after the date of the original reliquidation. The last date of reliquidation for the various entries was October 19, 1990 (i.e., more than one year before Durabla's request). Consequently, based on the plain meaning of section 1520(c)(1) we cannot direct that office to reliquidate the subject entries because the request was untimely filed.

The Court of Appeals for the Federal Circuit (CAFC) addressed a similar situation concerning section 1520(c)(1) in Omni U.S.A., Inc. v. United States, 6 Fed. Cir. (T) 99 (1988). In that case, Customs improperly liquidated certain entries. However, the importer did not alert Customs to the error it had committed within one year. The CAFC stated that "[t]his court has several times held that statutory pro- cedures for administrative correction of errors . . . are binding on all concerned, including the time limitations within which valid actions may be taken." Omni, p. 101.
The CAFC went on to hold that "[s]ince nobody brought the errors to the attention of the appropriate customs officers within a year of the date of liquidation, authority to correct them lapsed according to the terms of section 1520(c)(1), the refusal by customs to correct them upon untimely notice was correct, and was the only course open to them." Omni, p. 101. We find this decision supportive for determining that we do not possess authority to reliquidate the subject entries in this instance.

HOLDING:

The subject entries cannot be reliquidated pursuant to 19 U.S.C. 1520(c)(1) because the request for reliquidation was not filed within one year after the date of liquidation.

Sincerely,

John Durant, Director
Commercial Rulings Division


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