HQ 0224256 - Application for Further Review of Protest No: 1001-1-108295; Denial of 19 U.S.C. 1520(c)(1) Petition - United States International Trade Commision Rulings

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HQ 224256

April 1, 1993

LIQ-9-01-CO:R:C:E 224256 SLR

CATEGORY: LIQUIDATION

Regional Commissioner of Customs
6 World Trade Center
New York, NY 10048

RE: Application for Further Review of Protest No: 1001-1-108295; Denial of 19 U.S.C. 1520(c)(1) Petition

Dear Sir:

The above-referenced protest was forwarded to our office for further review. We have examined its contents and our decision follows.

FACTS:

On September 21, 1989, certain merchandise was entered duty-free under the Generalized System of Preferences. On April 5, 1990, Customs issued a CF 29 advising the protestant that a rate advance would be assessed unless an original Form A was submitted. On April 11, 1990, the protestant forwarded the original Form A to its broker for submission to Customs. On May 4, 1990, Customs liquidated the subject entry "no change." On July 19, 1990, the entry package arrived at the Regional Residual Liquidation Section. The package contained photo copies of the missing Form A, but no originals. Also included was a note from the import specialist requesting that the entry be reliquidated under 19 U.S.C. 1501. On July 23, 1990, the subject entry was reliquidated at an increased rate, off-line, and bulletin notice was posted accordingly. On August 10, 1990, a bill for increased duties was issued. On that same day, Customs verified the billing for accuracy against the on-line bulletin, red-lined the entry on the on-line bulletin, and made the entry available for review.

On March 7, 1991, the protestant filed a petition for reliquidation of the entry under 19 U.S.C. 1520(c)(1), claiming that the failure to submit the original Form A prior to reliquidation was due to clerical error, mistake of fact, or other inadvertence. A duplicate original Form A was presented to Customs at this time. On August 29, 1991, your office denied the petition. On November 25, 1991, the instant protest and application for further review was filed against your refusal to reliquidate the entry under 19 U.S.C. 1520(c)(1).

The protestant maintains that the failure on the part of its broker to file the original Form A prior to reliquidation constitutes inadvertence correctable under 1520(c)(1). The protestant's broker believes that an original Form A was submitted with the subject entry; however, the protestant admits that there is no documentation evidencing such submission.

The protestant posits that as the subject entry was liquidated "no change," perhaps Customs did receive the original Form A but misplaced it after liquidation. The protestant alleges clerical error or mistake of fact on the part of Customs in misplacing the Form A.

The protestant maintains that other mistakes of fact and inadvertences exist in this case. The protestant claims that the subject entry was not properly reliquidated on July 21, 1990. It maintains that the bulletin notice for the off-line reliquidation was not properly posted in that it was not made accessible to the public. It also maintains that the bulletin notice was deficient in that it did not include the kind of entry and entry date. Finally, since the entry was not made available for review until August 10, 1990, the protestant argues that reliquidation was tolled until that date and consequently was untimely (98 days).

ISSUE:

Whether Customs properly denied 1520(c)(1) relief in this case.

LAW AND ANALYSIS:

Section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514), 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 section 514. 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 the law; is adverse to the importer; and is manifest from the record or established by documentary evidence. Section 520(c)(1) 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. Computime, Inc. v. United States, 9 CIT 554, 556, 622 F. Supp. 1083, 1085 (1985).

Mistakes of fact occur when a person believes the facts to be other than what they really are and takes action based on that erroneous belief. Inadvertence connotes inattention, oversight, negligence, or lack of care. Clerical error occurs when a person intend 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. T.D. 54848. These errors are not mutually exclusive. However, errors in the construction of law are not correctable under 1520(c)(1).

The protestant maintains that the failure on the part of its broker to file the original Form A prior to reliquidation constitutes inadvertence correctable under 1520(c)(1).

The Customs Service has previously addressed the issue of an importer's failure to provide additional information. In C.S.D. 80-250, Customs determined that the failure of the importer to respond to Customs request for additional information amounted to negligent inaction and, therefore, did not fall within the meaning of 1520(c)(1). This conclusion has been upheld by the courts. In Occidental Oil & Gas Co. v. United States, 23 Cust. B. & Dec. No. 17, p. 40, Slip Op. 89-40 (CIT 1989), the court held that an importer's delay in forwarding additional information is not an inadvertence or mistake within the scope of 1520(c)(1). The court found that the record showed that the appropriate documents supporting the claim had not been supplied and, therefore, the Customs officer had made a legal determination as to the classification. We see no reason to reach a different conclusion in the instant case. The protestant was given an opportunity to supply additional information but failed to do so. The protestant had ninety days to protest the reliquidation under 19 U.S.C. 1514.

The protestant posits that as the subject entry was liquidated "no change," perhaps Customs received the original Form A but misplaced it after liquidating the entry. It alleges clerical error or mistake of fact on the part of Customs in misplacing the Form A.

There is absolutely no evidence that the protestant's broker submitted the original Form A. Customs liquidated the subject entry "no change," discovered it did not have an original Form A on file for the entry, and timely reliquidated the entry under 19 U.S.C. 1501. Customs reliquidated the entry based on the best information available to it. Customs did not make a clerical error or mistake of fact within the meaning of 19 U.S.C.

The protestant maintains that Customs committed various mistakes of fact and inadvertences when reliquidating the subject entry. It maintains that the bulletin notice for off-line reliquidation was not properly posted in that it
was not accessible to the public; that the bulletin notice was deficient in that it did not include the kind of entry and entry date; and that since the entry was not made available for review until August 10, 1990, the reliquidation was tolled until that date and consequently was untimely (98 days).

Each of these determinations involved an application of the Customs regulations. Consequently, if any mistake of fact or inadvertence had occurred, it would have amounted to an error in the construction of the law unremediable under 19 U.S.C. 1520(c)(1). The protestant should have raised these objections in a timely filed protest against the reliquidation under 19 U.S.C. 1514.

HOLDING:

Customs properly denied 1520(c)(1) relief in this case as the protestant is unable to substantiate its claim regarding mistake of fact, clerical error, or other inadvertence.

This protest is denied in full. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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