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HQ 224210


January 1, 1993

LIQ-4-02-CO:R:C:E 224210 CB

CATEGORY: ENTRY

Assistant District Director
Commercial Operations Division
U.S. Customs Service
477 Michigan Avenue
Detroit, MI 48266

RE: Protest and Application for Further Review No. 3801-92- 100200; 19 U.S.C. 1520(c); 19 U.S.C. 1671f(b)(2); 19 U.S.C. 1671e(a)(3); refund of countervailing duties together with interest; modification of reliquidation

Dear Sir:

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

FACTS:

The subject entries were liquidated during the period between July 24, 1987 and June 2, 1989. The entries were liquidated with a refund of the countervailing duties deposited but without a refund of the interest due. On March 4, 1991, protestant filed a request for the refund of the interest due on the deposited estimated countervailing duties. The request was denied on October 22, 1991, and the subject protest was filed on January 21, 1992.

It is protestant's contention that the one year limitation statutorily provided for under 19 U.S.C. 1520(c) does not apply because it is not requesting a reliquidation of the subject entries. Protestant alleges that it is only requesting a modification of the original liquidation with issuance of refund of interest as required under 19 U.S.C. 1671(b)(2).

ISSUE:

Whether protestant is entitled to the requested relief?

LAW AND ANALYSIS:

The Trade Agreements Act of 1979 provided, through an amendment to the Tariff Act of 1930 by the addition of a new section 707, for the refund of excess estimated countervailing duties, together with interest. This provision is codified as section 671f(b)(2) of the Tariff Act of 1930, as amended (19 U.S.C. 1671f(b)(2)). Any adjustment is to be made at the time of liquidation of the entries.

Liquidation of an entry of merchandise constitutes the final computation by Customs of all duties accruing on that entry. See generally, Ambassador Division of Florsheim Shoes v. United States, 748 F.2d 1562 (Fed. Cir. 1984); Nike, Inc. v. Rubber Manufacturers Association, Inc., 509 F.Supp. 912 (S.D.N.Y. 1981); Scherk Importing Co. v. United States, 17 CCPA 135, T.D. 43470 (1929). There are only three statutory vehicles that can be used by Customs to liquidate or reliquidate an entry. Under section 501 of the Tariff Act of 1930, as amended (19 U.S.C. 1501), any liquidation or reliquidation may be reliquidated in any respect by the appropriate customs officer on his own initiative within ninety days from the date of liquidation.

Section 514 of the Tariff Act of 1930, as amended (19 U.S.C. 1514), is the second vehicle for reliquidation. It sets forth the proper procedure for an importer to protest the appraised value, classification and amount of duties imposed on merchandise when the importer believes Customs has misinterpreted the applicable law. The legal question of whether the liquidation was erroneous does not affect the finality of liquidation. See Gerry Schmitt & Co. v. United States, 71 Cust. Ct. 194, 371 F. Supp. 1079, (1973). After 90 days, the liquidation of the entries becomes final and conclusive unless a timely protest is filed.

The third vehicle for reliquidation is provided for in section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)). Section 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 of 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).

As stated by the Court of International Trade in PPG Industries, Inc. v. United States, 7 Ct. Int'l Trade 118, 124 (1984), three conditions must be satisfied before an entry can be reliquidated to correct a mistake of fact:

(1) a mistake of fact must exist;
(2) the mistake must be manifest from the record or established by documentary evidence; and
(3) the mistake of fact must be brought to the attention of the Customs Service within the time requirements of the statute.

In the instant protest, protestant has not satisfied any of the requirements. There is nothing in the record to indicate that failure to include the interest due is a mistake of fact. There is a legal presumption that all Customs officers are knowledgeable of all pertinent statutes regarding the importation of goods. Protestant has failed to provide any evidence to rebut this presumption. Thus, we have to conclude that when the subject entries were liquidated, the Customs officer was aware of 19 U.S.C. 1671f(b)(2) and determined that said statute did not apply to the subject entries. Additionally, protestant has failed the third condition set forth in PPG Industries, i.e. the alleged mistake of fact must be brought to Customs' attention within the statutory time requirements.

Protestant alleges that it is not seeking a reliquidation but rather, a modification of the original liquidation; thus, the statutory time limits for reliquidation are inapplicable. A liquidation or modification by any other name is still a reliquidation. Reliquidations are statutorily limited to 19 U.S.C. 1501, 1514, 1520 and 1521. Only 1514 or 1520 could apply to the subject protest. Since interest is due incident to liquidation, that liquidation is the event triggering the period for protest. See New Zealand Lamb Co., Inc., v. United States, 27 Cust. Bull. & Dec. 3, 5 Slip Op. No. 92-218 (December 8, 1992). It is true that the subject entries were erroneously liquidated; however, protestant cannot recover because a timely protest was not filed. There is no statutory authority under which to reliquidate the subject entries and 19 U.S.C. 1520(c)(1) does not apply to this protest because, even if it had been a timely protest, the error in this case was in the construction of a law.

HOLDING:

There is no statutory authority for a waiver of the 90-day limit provided for under 19 U.S.C. 1514 for liquidations. Additionally, Customs failure to refund any excess duties deposited together with interest is a mistake of law not correctable under 19 U.S.C. 1520(c). Therefore, this protest should be DISALLOWED.

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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