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HQ 955398



October 18, 1994

CLA-2 CO:R:C:M 955398 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8451

District Director
U.S. Customs Service
1 E. Bay Street, Room 104
Savannah, GA 31401

RE: Protest 1703-93-100155; Dry Cleaning and Laundry Machinery; Dryers; Call Off Controls; Extractor Presses; Shuttle Conveyors; 19 U.S.C. 1514(c)(2)(A); 19 U.S.C. 1520 (c)(1); 19 CFR 173.4; PPG Industries, Inc. v. U.S.

Dear District Director:

The following is our decision regarding Protest 1703-93- 100155 concerning your action in classifying and assessing duty on dry cleaning and laundry machinery under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

This protest involves the entry of a washing and drying system, which included 6 system dryers, 2 call off controls, 2 extractor presses and 2 shuttle conveyors; all of which had been shipped aboard the vessel Neptune Jade with Savannah, Georgia, listed as the port of unlading. The entered value of the Savannah entry was $841,236 and included the value of 2 batch washers which together had a value of $309,777. No dispute exists as to the declared value of the washers. The entry documents filed in Savannah listed the 2 batch washers. The protestant claims the same 2 batch washers had been physically entered in Memphis, Tennessee, under a separate entry number. The 2 batch washers entered both in Savannah, Georgia, and Memphis, Tennessee, had been shipped aboard the vessel ATL Conveyer with Memphis designated as the port of unlading. As a result of clerical error, protestant claims duty was paid twice: once in Savannah and once in Memphis on the same 2 batch washers. Accordingly, the protestant requests that Customs reliquidate the Savannah entry based on a correct dutiable value of $531,459, since the same two batch washers valued at $309,777 had been entered with duty paid in Memphis, Tennessee.

The system dryers, call off controls, extractor presses, and shuttle conveyors were entered under subheading 8450.20.00, HTSUS, as household or laundry-type washing machines, including machines which both wash and dry, each of a dry linen capacity exceeding 10 kg. The entry was liquidated on July 30, 1993, under subheading 8451.40.00, HTSUS, as washing machines. The protest was filed on October 29, 1993.

ISSUES:

Whether the protest was timely filed.

Whether the subject entry may be reliquidated to exclude the dutiable value of the batch washers.

LAW AND ANALYSIS:

Section 514(c)(2)(A) of the Tariff Act of 1930, as amended [19 U.S.C. 1514(c)(2)(A)], states that:

[a] protest of a decision, order, or finding described in subsection (a) of this section shall be filed with such customs officer within ninety days after but not before -

(A) notice of liquidation or reliquidation . . .

A review of the file indicates that the entry subject to the protest was liquidated by Customs in Savannah on July 30, 1993, and the protest was filed with Customs as evidenced by the date stamp as being received on October 29, 1993. A total of 91 days had passed between the time of liquidation and the time of the filing of the protest. Therefore, under 19 U.S.C. 1514(c)(2)(A), because the protest was untimely filed, it must be denied.

The protestant also requests reliquidation of the subject entry to exclude the dutiable value of the 2 batch washers. Thus, we are providing guidance to you on this matter. Section 520(c)(1) of the Tariff Act of 1930, as amended [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." The regulations implementing section 1520(c)(1) provide that "[e]ven though a valid protest was not filed, the district director, upon timely application, may correct . . . a clerical error, mistake of fact, or other inadvertence meeting the requirements of paragraph (b) of this section, by reliquidation or other appropriate action." 19 CFR 173.4(a). The clerical error must be manifest from the record or established by documentary evidence. 19 CFR 173.4(b)(3). Such clerical errors must be brought to the attention of the district director at the port of entry. 19 CFR 173.4(c). We note that this request for reliquidation was timely brought to the attention of your office in this protest. The date of liquidation was July 30, 1993, and this request was included in a protest filed on October 29, 1993.

A "clerical error" has been stated by the courts to be "a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention." PPG Industries, Inc. v. United States, 7 CIT 118, 124 (1984). In this case, the entered value in Savannah included the value of 2 batch washers. The protestant asserts that the entry documents erroneously included the 2 batch washers because of a clerical error. However, the protestant did not provide specific information to explain the exact nature of this error. For instance, the protestant should be required to explain in what manner it made an error in writing information on the entry documents. We note that the protestant claims the same 2 batch washers had been physically entered in Memphis, Tennessee, under a separate entry number. The protestant also claims that these washers had been shipped aboard the vessel ATL Conveyer with Memphis designated as the port of unlading. A statement from a Customs official acknowledges that the 2 batch washers in this protest were off-loaded in Memphis under the entry claimed by the protestant and were not off-loaded in Savannah. However, we are not aware of the basis for this acknowledgement. We note that the invoice for the Memphis entry contains serial numbers 60.005 and 60.006 and order number 93- 5418 but no invoice number, while the invoice for the Savannah entry contains no serial numbers but an invoice number and order number 93.5418. Without the serial numbers for both entries, we were unable to determine that the batch washers listed on the Savannah entry documents were the same batch washers listed on the Memphis entry documents. We suggest this missing information be obtained unless your office is satisfied by other evidence that the relevant batch washers are in fact the same merchandise.

HOLDING:

Because the protest was untimely filed, it should be DENIED in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed 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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