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HQ 225147




November 28, 1994

LIQ-9-01-CO:R:C:E 225147 AJS

CATEGORY: LIQUIDATION

District Director of Customs
U.S. Customs Service
101 East Main Street
Norfolk, VA 23510

RE: Protest 1401-93-100356; bulletin notice of liquidation; 19 CFR 159.9; Goldhofer Fahrzeugwerk GmbH & Co. v. U.S.; Penrod Drilling Co. v. U.S.; 19 U.S.C. 1520(c)(1).

Dear Sir:

This is our decision in protest 1401-93-100356, dated November 23, 1993, concerning the denial of a request under 19 U.S.C. 1520(c)(1) for reliquidation of an entry.

FACTS:

The subject merchandise was entered on September 9, 1992. A Notice of Action, Customs Form (CF) 29, was issued on March 3, 1993, indicating that the entry at issue was subject to a rate advance and that it was in the liquidation process. A manual bulletin notice of liquidation was posted on April 2, 1993, liquidating the subject entry under subheading 7013.99.50, Harmonized Tariff Schedule of the United States (HTSUS). Subsequently, HQ 953386 (April 22, 1993) was issued classifying the subject merchandise within subheading 7010.90.20, HTSUS. On September 24, 1993, the protestant requested reliquidation of the subject entry under section 1520(c)(1). On October 26, 1993, Customs denied this request stating that the issue could not be addressed under section 1520(c)(1).

An Automated Commercial System (ACS) computer printout was submitted by the protestant. It is titled "Bulletin Notice of Entries Liquidated, Liquidation Date 5/14/93". The printout was annotated to indicate that the subject entry was liquidated on April 2, 1993, and not May 14. The May 14 date was generated by ACS approximately two weeks after the Customs port instructed ACS
to liquidate the entry. No reason was given for Customs delay in instructing ACS to liquidate the subject entry. ACS automatically generates a computerized bulletin notice for posting based on the liquidation date it generates. This is the reason for the existence of the May 14 document.

ISSUE:

Whether denial of the request for reliquidation under 19 U.S.C. 1520(c)(1) was proper.

LAW AND ANALYSIS:

Initially, we note that this protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(B). The date of decision protested was October 26, 1993, and the protest was filed on November 23, 1993. We also note that the refusal to reliquidate an entry under section 1520(c)(1) is a protestable matter pursuant to 19 U.S.C.

19 CFR 159.9(a) provides that notice of liquidation of formal entries shall be made on a bulletin notice of liquidation, CF 4333. The courts have stated that "[n]otice of liquidation is intended to apprise importers of any action which may affect their interests, and to afford them opportunity to secure administrative and judicial review." Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 706 F. Supp. 892, aff'd 885 F.2d 858, reh'g denied, suggestion for reh'g declined, cert. denied 110 S. Ct. 1946 (1989). Part 159.9(b) states that "[t]he bulletin notice of liquidation shall be posted for the information of importers in a conspicuous place in the customhouse at the port of entry . . ." The courts have also stated that "[i]mporters bear the burden of examining all notices posted in customhouse to determine whether its goods have been liquidated, and to protest timely." Penrod Drilling Co. v. United States, 727 F. Supp. 1463, reh'g dismissed, motion to set aside dismissed, 740 F. Supp. 858 (1989). Part 159.9(c) states that the bulletin notice of liquidation shall be dated with the date it is posted or lodged in the customhouse for the information of importers. It further states that this posting or lodging shall be deemed the legal evidence of liquidation. The CF 4333 for the subject entry was dated April 2, 1993. In addition, the submitted ACS document also indicates that the entry was liquidated on April 2. Therefore, the subject entry was liquidated on April 2.

Counsel for the protestant met with officials from this office to discuss the subject protest. In a submission of November 2, 1994, counsel asserts that "[i]t was agreed that . . . it was unclear as to when the amount of duty was calculated and first made known" to the protestant. For the record, this office does not
recall any such agreement with counsel. We do note, however, that it was agreed that counsel would obtain a letter from the National Finance Center stating that May 14 was the liquidation date. No such letter was provided.

Counsel makes several assertions unsupported by legal citation which we will briefly discuss. Counsel asserts that "without the computation of duties there can be no liquidation." No evidence was provided to indicate that the computation of duties was not performed on April 2 (i.e., the date of posting of liquidation) or even earlier. The bulletin notice indicates that the liquidation involves an "increase" of duty. Before Customs could determine that such an increase was due, we assume that Customs also determined the amount of this increase. Therefore, we dispute the claim that the computation of duties did not occur before or at the time of liquidation.

Counsel asserts that "the calculation of duties due must be posted in some way, or a legal liquidation cannot occur." The Customs Court concluded otherwise in Wong Sang Man v. United States, 27 Cust. Ct. 248, C.D. 1379, (1951). That case involved a bulletin notice of liquidation in which the amount of duty owed was not indicated. The court stated that it was necessary for persons interested to check the actual liquidation figures in order to protest the liquidation. Id at 249. The court found this posting procedure acceptable as long as an opportunity has been afforded the proper parties to be appraised of the facts of the liquidation. Id at 250. No evidence was submitted that the protestant attempted or was not afforded an opportunity to be appraised of the facts of the subject liquidation. Therefore, we find this case instructive for rejecting counsel's assertion that the calculation of duties due must be posted.

Counsel notes that the bulletin notice of May 14, 1993, was redlined. Counsel states that "[t]herefore, since the bill generated on May 14, 1993, does not refer to a liquidation of May 14, 1993, and cannot refer to a liquidation of April 2, 1993, because that liquidation never took place, the bill is itself an erroneous request for duties not supported by any liquidation at all." First, the May 14 bill does not refer to any liquidation date and there is no location for this date on the bill. Second, we note that the bulletin notice was redlined to indicate that the subject entry was liquidated by a manual bulletin notice of April 2. Therefore, the bill of May 14 with the subject entry number does in fact refer to a liquidation on April 2, 1993, the date of posting. Consequently, the claim that the bill is an erroneous request for duties not supported by any liquidation is without merit.

Counsel asserts that the protestant is entitled to relief under 19 U.S.C. 1520(a). Counsel specifically claims its client, in paying the bill of May 14, either paid more in duty than required by law or it paid an exaction not authorized by law. We assume that counsel is referring to section 1520(a)(3) which states that the Secretary of the Treasury is authorized to refund duties or other receipts "[w]henever it is determined in the manner required by law that any fees, charges, or exactions, other than duties and taxes, have been erroneously or excessively collected". Inasmuch as this provision specifically excludes duties, counsel's claim regarding the payment of duties may not be addressed under section 1520(a). In addition, Customs has stated that the Customs bill is not an exaction within the meaning of section 1520(a) and that Congress did not intend that ordinary customs duties be considered an exaction. HQ 224385 (May 23, 1993). Thus, counsel's claim comparing the payment of duties in this case to an exaction is without merit.

19 U.S.C. 1520(c)(1) provides that Customs may reliquidate an entry to correct a "clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a 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."

The protestant initially requested reliquidation of the subject entry under section 1520(c)(1). The protestant asserts that because the entry was liquidated on May 14 contrary to the ruling (HQ 953386) issued on April 22, that the subject entry was liquidated due to a mistake of fact. As stated previously, the subject entry was liquidated on April 2 and not May 14. Therefore, the entry was not liquidated contrary to the April 22 ruling because this ruling had not yet been issued. Consequently, a mistake a fact did not occur in the liquidation of the subject entry.

HOLDING:

The protest is denied. A mistake of fact under section 1520(c)(1) did not occur in the liquidation of the subject entry.

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 with the Customs Form 19, by your office 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 mailing of the 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, Freedom of Information Act and other public access channels.

Sincerely

John Durant, Director
Commercial Rulings Division


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