HQ 0224514 - Protest #3307-93-100009 concerning the refusal to grant relief under 19 U.S.C. 1520(c)(1) on a claim for same condition drawback; 19 U.S.C. 1313(j)(1). - United States International Trade Commision Rulings

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HQ 224514

August 3, 1993

DRA-4 CO:R:C:E 224514 TLS

CATEGORY: ENTRY

District Director
U.S. Customs Service
P.O. Box 789
Great Falls, Montana 59405

RE: Protest #3307-93-100009 concerning the refusal to grant relief under 19 U.S.C. 1520(c)(1) on a claim for same condition drawback; 19 U.S.C. 1313(j)(1).

Dear Sir:

This office has received the above-referenced protest concerning a claim for same condition drawback. We have considered the issues raised and have made the following decision.

FACTS:

The protestant filed a claim for same condition drawback on February 25, 1992 for a consumption entry made on January 9, 1992. The merchandise had been originally imported on December 31, 1991. Customs requested proof of export on March 31, 1992 to verify the claim for drawback. The importer was notified in the request that it had until thirty (30) days after the date of the request to comply and the failure to do so could result in the denial of drawback. The requested documents were not received by May 1, 1992, the thirty day deadline imposted by Customs. Consequently, Customs liquidated the drawback entry on May 22, 1992 without drawback being allowed.

Subsequent to the denial, on November 30, 1992, the protestant filed a claim under 19 U.S.C. 1520(c)(1), contending that the omission of the requisite documents was a correctable error. The requested documents were submitted along with the claim. Customs denied this claim also, on December 14, 1992, stating that "negligent inaction" is not a correctable error under 19 U.S.C. 1520(c)(1). This protest was timely filed on February 11, 1993, on the denial of the November 1992 petition.

ISSUE:

Whether Customs erred in finding the failure to timely file documents required under Customs laws to not be a correctable error under 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

That the documents requested to verify the drawback claim in this case are required under Customs laws is not disputed here. See generally 19 U.S.C. 1313(j); 19 CFR 191.52(c); 19 CFR 191.141. To sustain a claim of correctable error under 520(c)(1), a clerical error, mistake of fact, or other inadvertance not amounting to an error in the construction of a law must exist and be adverse to the importer. This must be brought to the attention of Customs officials within one year of the date of liquidation, as was done here by the importer. This ruling does not address whether 19 U.S.C. 1520(c)(1) applies to drawback claims, however. Such is not at issue in this case and therefore need not be resolved here.

In this case, the section 520(c)(1) claim was filed within one year of the drawback entry liquidation. The question to be resolved is whether the failure to file required documents before a deadline is a correctable error under that statute. It cannot be said that there is a clerical error here because the error here involves the non-filing of documents. Mistake of fact also cannot be claimed here because Customs specifically requested the subject documents. Inadvertance in this case would be the unintentional omission of the documents when filing the claim. The facts here do not support such an argument. The importer simply did not include them with the claim.

A failure to act may be correctable under section 520(c)(1) when coupled with another significant factor, such as the inability of the importer to obtain proper documentation. C.S.D. 80-250 (August 19, 1980). Here, no such claim was made, however. Thus, we are compelled to find that the failure to file the required documents on a timely basis amounted to negligent inaction, which is not correctable under 19 U.S.C. 1520(c)(1). See C.S.D. 80-250. See also Occidental Oil & Gas v. United States, 13 CIT 244 (1989); Godchaux-Henderson Sugar Co. v. United States, 85 Cust. Ct. 68, C.D. 4874 (1980). Simply put, the statute does not apply in this case. Therefore, the protest must be denied.

HOLDING:

The failure to timely file the required documents to verify a drawback claim is by itself not a correctable error under 19 U.S.C. 1520(c)(1). This protest is therefore DENIED. A Form 19, Notice of Action should be attached to this decision.

Sincerely,

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