HQ 0224440 - Application for Further Review of Protest 4909-92-100135; GSP Form A; Incomplete Form; Claimed Inadvertence; 19 U.S.C. 1520(c)(1) - United States International Trade Commision Rulings

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HQ 224440

November 17, 1993

LIQ-9-01-CO:R:C:E 224440 SLR

CATEGORY: LIQUIDATION

District Director of Customs
U.S. Customs Service
1 La Puntilla Street
Old San Juan, PR 00901

RE: Application for Further Review of Protest 4909-92-100135; GSP Form A; Incomplete Form; Claimed Inadvertence; 19 U.S.C. 1520(c)(1)

Dear Sir:

This is in response to the above-referenced protest forwarded to this office for further review. We have considered all of the points raised and our decision follows.

FACTS:

On May 8, 1991, the protestant filed a consumption entry made up of two invoices: invoice F-537 covering gas stoves, and invoice 12396 covering cooking appliance parts. Protestant claimed GSP status for all of the merchandise.

On May 22, 1991, Customs issued a CF 29 to the protestant, indicating that evidence was needed in order to support the GSP claim. On June 13, 1991, Form A's were sent to Customs, and on July 5, 1991, the merchandise was liquidated fully dutiable without the benefit of GSP.

On July 29, 1991, protestant protested the liquidation of the entry and resubmitted copies of the earlier Form A's which had been retained in its files. Customs allowed the protest for the merchandise covered in invoice F-537. However, the protest was denied for the merchandise described in invoice 12396 as the Form A for that merchandise was incomplete.

On February 20, 1992, the protestant requested reliquidation of the subject entry under 19 U.S.C. 1520(c)(1), indicating:

The subject protest was denied by Customs for the reason that the Certificate of Origin, Form A, was "Blank" (that is, no "Origin
Criterion" under column 8 was shown) through inadvertence of the seller/manufacturer in

The exporter in Mexico was made aware of the omission error, and has now produced an
"Amended" Certificate of Origin, Form A, for the merchandise in question, with a completed column 8 information. * * *

On April 23, 1992, Customs denied the instant reliquidation petition, indicating that the matter was not considered a clerical error, mistake of fact, or other inadvertence correctable under 19 U.S.C. 1520(c)(1). The file indicates that Customs response was mailed to the wrong address and that protestant did not receive notice of the denial until October 9, 1992.

On November 25, 1992, the subject protest was filed timely against the section 520(c)(1) denial. The protestant maintains that the amended Form A was produced by the seller to complete the column left blank, "through inadvertence", in the certificate dated June 13, 1991 (see reliquidation petition dated February 20, 1992). It further maintains that the "amended" certificate was filed with Customs before liquidation became final (19 CFR 10.112).

ISSUE:

Whether section 520(c)(1) relief is in order in this case.

LAW AND ANALYSIS:

Section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1), provides:

(c) Notwithstanding a valid protest was not filed, 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 the 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; . . . .

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, while clerical error occurs when a
person intends to do one thing but does something else. These errors are not mutually exclusive. However, errors in the construction of the law are not correctable under section 520(c)(1). T.D. 54848 (94 Treas. Dec. 244 (1959).)

Here, the protestant alleges that the Form A was "Blank" due to the inadvertence of the seller/manufacturer in Mexico. An amended Form A was forwarded with the section 520(c)(1) petition.

An inadvertence correctable under the statute must be manifest from the record or established by documentary evidence. According to the court in PPG Industries, Inc. v. United States, 4 CIT 143 (1982) (quoting, in part, from the lower court in Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220, C.D. 4761 (1978)):

[I]t is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact. The burden and duty is upon the plaintiff to inform the appropriate Customs official of the alleged mistake with
"sufficient particularity to allow remedial action."

4 CIT at 147-148; see also United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), in which the court stated "determinations of issues in customs litigation may not be based on supposition."

In the instant case, there is evidence as to the claimed inadvertence on the part of the manufacturer/seller and it is manifest from the record. Seller's invoice for no. 12396, dated April 15, 1991, indicates that the origin of the subject merchandise is Mexico. The Form A for this invoice is dated June 13, 1991, and it is apparent that the manufacturer/seller simply carelessly omitted the column 8 criterion.

HOLDING:

There is evidence to establish inadvertence in this case. Section 520(c)(1) relief is in order, and this protest should be allowed.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office, with the Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of this decision. Sixty days from the date of the decision the Office of

Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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