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HQ 223478


February 21, 1992

LIQ-9-01-CO:R:C:E 223478 CB

CATEGORY: ENTRY

Regional Commissioner
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center
Room 762
New York, NY 10048-0945

RE: Application for further review of Protest No. 1001-0-006332; 19 U.S.C. 1520(c); mistake of fact

Dear Sir:

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

FACTS:

According to the file, entries were filed by protestant on March 14, 1989 and March 15, 1989, covering furniture entered under HTSUS 9401.80.6006 at 4% duty rate. The invoices and packing lists submitted with the entries describe the merchandise as sofas and arm chairs. The bill of lading describes the contents of the shipment as leather furniture. No other description of the merchandise appears in the entry documentation. The entries were liquidated No Change on April 14, 1989 for duty in the amount of $645.96 and $682.00 respectively.

On April 13, 1990, protestant filed on behalf of the importer, two claims requesting reliquidation of the entries pursuant to 19 U.S.C. 1520(c). Protestant alleges that the misclassification of the furniture was due to the fact that the entry clerk did not know that the furniture had wooden frames. Protestant further alleges that on March 14, 1989, prior to the liquidation of the instant entries, New York Customs issued a ruling (NY Ruling 837908) holding the merchandise to be classifiable under HTSUS 9401.61.6000.

The 520(c) claims were denied on May 22, 1990. The subject protest was filed pursuant to 19 U.S.C. 1514(a)(7) against Customs refusal to reliquidate the entries.

ISSUE:

Whether the subject entries can be reliquidated pursuant to 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

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. Otherwise, the tariff treatment of merchandise is final and conclusive.

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 if it does not amount to an error in the construction of law; is adverse to the importer; is manifest from the record or established by documentary evidence. United States Steel Corporation, et al v. United States, et al, 7 Ct. Int'l Trade 118, 124 (1984). However, 1520(c)(1) cannot be used to correct all mistakes, it only offers limited relief in certain situations. See Computime, Inc. v. United States, 9 Ct. Int'l Trade 553, 622 F. Supp. 1083 (1985); Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec. No. 29, p. 38, Slip Op. 89- 89 (CIT June 27, 1989).

Section T.D. 54848 describes and distinguishes correctable errors under 1520(c). Specifically, it states that a 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 it is unknown to the person or he may believe that something is a fact when in reality it is not. A mistake of fact has been defined by the courts as any mistake except a mistake of law. It has consistently been held that an erroneous classification of merchandise is not a clerical error, mistake of fact, or inadvertence, but it is an error in the construction of a law. See Mattel Inc. v. United States, 377 F. Supp. 955, 72 Cust. Ct. 257, C.D. 4547 (1974); and C.J. Tower & Sons of Buffalo, Inc. v. United States, 336 F. Supp. 1395, 68 Cust. Ct. 17, C.D. 4327, aff'd, 499 F.2d 1277, 61 C.C.P.A. 90 (1972). A presumption of correctness exists in favor of Customs classification and the importer has the burden to prove otherwise. PPG Industries, Inc. v. United States, 4 Ct. Int'l Trade 143, 147 (1982).

The Customs Service has previously ruled that certain classification errors may be corrected under 1520(c)(1). HQ Ruling 75-0026, issued January 24, 1975, indicates that reliquidation is proper when a Customs officer is not aware of a classification ruling. However, the instant case is distinguishable from the fact situation set out in HQ Ruling 75- 0026. Unlike HQ Ruling 75-0026, the classification of the subject merchandise does not involve a dispute between competing headings. There is no reason to believe that, had the protestant disclosed the fact that the furniture had a wood frame, Customs would have refused to classify the merchandise in any other heading whether the classification ruling had been issued or not. The only mistake here was the importer's failure to obtain an invoice which properly described the merchandise being entered. Furnishing an incomplete invoice or bill of lading is not mistake of fact or clerical error correctable under 19 U.S.C. 1520(c)(1).

HOLDING:

Classification of the subject merchandise was a mistake of law not 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 CF 19, Notice of Action, and sent to protestant to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John A. Durant, Director

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