HQ 226094 - Protest 2304-94-100307; 19 U.S.C. 1520(c)(1); Persian limes without seeds; Subheading 0805.30.4000, HTSUS; Subheading 0805.90.0010, HTSUS. - United States International Trade Commision Rulings

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HQ 226094

Janury 19, 1996

LIQ-9-01-RR:IT:EC 226094 AJS

CATEGORY: LIQUIDATION

Port Director of Customs
U.S. Customs Service
P.O. Box 3130
Laredo TX 78044-3130

RE: Protest 2304-94-100307; 19 U.S.C. 1520(c)(1); Persian limes without seeds; Subheading 0805.30.4000, HTSUS; Subheading 0805.90.0010, HTSUS.

Dear Madame:

This is our decision in Protest 2304-94-100307, dated December 8, 1994, concerning the reliquidation of various entries under 19 U.S.C. 1520(c)(1).

FACTS:

The subject protest consists of 10 entries of Persian limes which were liquidated between March 11, 1994, and April 29, 1994. The subject limes were classified within subheading 0805.30.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provided for "[c]itrus fruit, fresh or dried: Lemons (Citrus limon, Citrus limonum) and limes (Citrus aurantifolia): Limes,". The Customs Form (CF) 6445 states that this classification was correct given the information available at that time. The commercial invoices and Federal-State Inspection Certificate identified the subject merchandise as Persian limes of the sin semilla (without seeds) variety from Mexico.

On June 30, 1994, Administrative Message 94-0661 was posted to OTO5 Bulletin Board, listing modifications to the 1994 HTSUS-Supplement 2. The message gave notice of statistical breakout changes to subheading 0805.90.00, HTSUS. As a result of this notice, it was determined that the proper classification for Persian limes is subheading 0805.90.0010, HTSUS, which provides for "Citrus fruit, fresh or dried: Other, including kumquats, citrons and bergamots . . . Tahitian limes, Persian limes and other limes of the citrus latifolia variety." The tariff classification is duty free from Mexico. According to the National Import Specialist (NIS),
Persian limes, which are seedless, are of the Citrus latifolia variety and the limes of subheading

0805.30.4000, HTSUS, citrus aurantifolia are seeded limes. According to the port, the subject limes would have been more appropriately classified under subheading 0805.90.00, HTSUS, as "other". The NIS is in agreement with classification under subheading 0805.90.00, HTSUS.

On September 14, 1994, the protestant filed a request under section 1520(c)(1) for reliquidation of the subject entries. On October 19, 1994, the protestant's request was denied because it did not meet the criteria of section 1520(c)(1) as constituting a "clerical error, mistake of fact or inadvertence". The subject protest was filed against this denial on December 8, 1994.

ISSUE:

Whether liquidation of the subject entry was due to a clerical error, mistake of fact or other inadvertence correctable pursuant to 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

Initially, we note that the subject protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(B). The date of decision protested was October 19, 1994, and the protest was filed on December 8, 1994. In addition, the refusal to reliquidate an entry under section 1520(c)(1) is a protestable matter pursuant to 19 U.S.C. 1514(a)(7).

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 90 days after the notice of liquidation or reliquidation. Otherwise, the tariff treatment of merchandise is final and conclusive.

19 U.S.C. 1520(c)(1) is an exception to the finality of 1514. Under 1520(c)(1) 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. The error must be adverse to the importer and manifest from the record or established by documentary evidence and brought to the attention of the Customs Service within one year after the date of liquidation. The relief provided for in 19 U.S.C. 1520(c)(1) is not an alternative to the relief provided for in the form of protests under 19 U.S.C. 1514; section 1520(c)(1) only affords "limited relief in the situations defined therein" (Phillips Petroleum Company v. United States, 54 CCPA 7, 11, C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc., v. United States, 85 Cust. Ct. 68, 69, C.D. 4874, 496 F. Supp. 1326 (1980); see also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), and Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986)).

Essentially the protestant's claim is that out of two competing HTSUS provisions, the subject limes were classified under the wrong provision. The protestant claims that the entries should have been reliquidated because Customs advised ABI Brokers to correct the classification
of Persian limes according to the Administrative Message, "thereby creating a mistake of fact for prior entries." The Administrative Message does not advise brokers to "correct" any classification. The Administrative Message only advises of statistical changes in the HTSUS, providing for a further breakout of subheading 0805.90. Statistical annotations are not included in the legal text of the HTSUS. HTSUS, General Statistical Note 2; Tariff Act of 1930 as amended by section 1204(a) of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107, 1148 (1988). Therefore, the statistical annotations have no legal status. Unlike the legal text of the HTSUS, the statistical annotations are established by the Secretary of the Treasury, the Secretary of Commerce, and the United States International Trade Commission, pursuant to 19 U.S.C. 1484(f). The Administrative Message and statistical annotation have no bearing on the classification of the limes, as they did not change the applicable HTSUS provisions. Therefore, this mistake of fact claim is not supported.

The only other mistake referred to by the protestant is that a "Customs Officer was not aware of any Headquarter's Classification Ruling and continued to accept entries under the former classification," and the protestant cites ORR Ruling 75-0026, dated January 24, 1975. ORR Ruling 75-0026, states that although generally an error in classification is not within the purview of 19 U.S.C. 1520(c)(1), an exception exists and reliquidation might be proper when a Customs officer is not aware of a classification ruling. The protestant has failed to bring to Customs attention any classification ruling of which a Customs officer was unaware that caused the asserted erroneous liquidation under a particular tariff subheading. Therefore, this mistake of fact claim is not supported.

The courts have consistently taken the position that an erroneous classification of merchandise is not a clerical error, mistake of fact, or other inadvertence within the meaning of 19 U.S.C. 1520(c)(1), but is an error in the construction of a law. See, Mattel Inc. v. United States, 377 F. Supp. 955, 72 Cust. Ct. 257, C.D. 4547 (1974); and C.J. Tower & Sons of Buffalo, Inc. v. United States, 366 F. Supp. 1395, 68 Cust. Ct. 17, C.D. 4327, aff'd, 499 F.2d 1277, 61 CCPA 90 (1972). Here, the only error established by the protestant is one involving the classification of the subject limes as limes of the Citrus aurantifolia variety, which could only have been corrected by the filing of a 19 U.S.C. 1514 protest within 90 days of the original liquidation. In support of its protest, the protestant cites to C.J. Tower & Sons of Buffalo, Inc. In Tower, neither the District Director of Customs nor the importer were aware of the nature of the imported merchandise, which would have entitled it to duty free treatment, until after liquidation became final. The court held that such a lack of knowledge did not amount to an error in the construction of the law but came within the statutory language "mistake of fact or other inadvertence." Degussa Canada Ltd. v. United States, No. 95-109, slip op. (Ct. Int'l Trade June 13, 1995) citing C.J. Tower & Sons, 68 Cust. Ct. at 22, 336 F.Supp. at 1399. We find the Tower case inapplicable in this case, because the entry documentation submitted with the protest indicates that the protestant was aware of the specific variety of limes (i.e., Persian limes without seeds) being purchased, and there is no evidence nor argument advanced by the protestant that the nature of the limes was unknown.

Other than an error in the classification of the limes between the two competing HTSUS provisions, the protestant has failed to bring to Customs attention any "mistake of fact, clerical error or other inadvertence" correctable under 19 U.S.C. 1520(c)(1). The CIT has ruled that mere assertions by a complainant without supporting evidence will not be regarded as sufficient to overturn a Customs official's decision. Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983). Further, upon an assertion that merchandise has been wrongly classified due to a mistake of fact, "it is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact." PPG Industries, Inc. v. United States, 4 CIT 143, 147-148 (1982), citing Hambro Automotive Corp. v, United States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220, 1222 (1978), aff'd, 66 CCPA 113, C.A.D. 1231, 603 F.2d 850 (1979). It is insufficient for the protestant to notify Customs that the classification was wrong. This does not identify and explain the correctable error. It fails to demonstrate that the error was other than a mistake in legal conclusion. See Headquarters Ruling HQ 223625, dated May 4, 1992. In this case, the protestant has failed to set forth any correctable error. In addition, no error is manifest from the record inasmuch as the limes were identified as Persian limes without seeds on the submitted invoice. The classification error was an error in the construction of a law (i.e., the subject limes were classified as limes (Citrus aurantifolia)) which could only have been remedied by the filing of a 19 U.S.C. 1514 protest within 90 days of liquidation.

HOLDING:

The protest is denied. Liquidation of the subject entries was not due to a clerical error, mistake of fact or other inadvertence correctable pursuant to 19 U.S.C. 1520(c)(1).

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 Customs 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 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,

Director,

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