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HQ 226151




October 2, 1996

LIQ-9-01-RR:IT:EC 226151 PH

CATEGORY: LIQUIDATION

Port Director of Customs
300 South Ferry Street
Terminal Island, California 90731

RE: Protest No. 2704-95-100869; Clerical Error, Mistake of Fact, or other Inadvertence; 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1)

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided and the arguments made by the protestant, as well as Customs records relating to this matter. Our decision follows.

FACTS:

According to the file and Customs records, on December 4 and 31, 1993, the protestant entered certain merchandise. According to invoices (dated November 18 and December 3, 1993) in the file, the merchandise consisted of "X-Y PLOTTER[s]" (one unit for each entry, with the same model number listed on each invoice). A hand-written notation on each invoice indicates that the tariff classification was under subheading 9017.20.8090, with duty at the rate of 5.8%.

According to the entry summaries for the merchandise, the merchandise was entered as "other drawing, marking-out, other" under subheading 9017.20.8090, HTSUS, with duty at the rate of 5.8%. According to Customs records, the December 4, 1993, entry was liquidated on March 18, 1994, and the December 31, 1993, entry was liquidated on April 15, 1994. The entries were liquidated as entered, with duty of $1,148.57 in each instance.

On November 8, 1994 (according to Customs records), the representative of the importer filed letters dated November 7, 1994, requesting that the entry be reviewed under 19 U.S.C. 1520(c)(1). According to these letters:

The mistake in fact was that duty was paid in based on an incorrect classification due to the specific function of the machinery in question ("MIMAKI" X-Y PLOTTER). This plotter was inadvertently classified as a drawing or marking out plotter under HTS# 9017.20.8090- 5.8%. In fact, based upon illustrated literature provided by the importer of record this x-y plotter is used in the manufacturing of cardboard boxes, classified under HTS# 8441.10.0000 - 2% (NO). Please refer to the attached brochure detailing the function of this machine.

The file includes materials appearing to be copied from the "attached brochure", describing the machine as an "affordable solution for cardboard box manufacturers".

These requests for reliquidation were denied on December 13, 1994 (copies of the letters of denial are included in the file). According to the letters of denial, the reason for denial was: "The issue relates to construction of law rather than clerical error or mistake of fact" and "Other [-] This issue is not correctable at the 520(c) level." The protestant filed the protest now under consideration on March 13, 1995.

Further review was requested and granted. According to the memorandum forwarding the protest/application for further review to this office, your office "concede[s] that the merchandise should have been classified, as claimed, in HTS 8441.10.00, at 2% ad valorem, rather than the entered and liquidated HTS 9017.20.80, at 5.8% ad valorem."

ISSUE:

May relief may be granted under 19 U.S.C. 1520(c)(1) in this protest?

LAW AND ANALYSIS:

Initially, we note that both the request for reliquidation under 19 U.S.C. 1520(c)(1) and the protest of the denial of that request, under 19 U.S.C. 1514(a), were timely filed.

Under 19 U.S.C. 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, when certain conditions are met. Section 1520(c)(1) has frequently been interpreted by the Courts. It has been stated that "[a] clerical error is 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" (see PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984), and cases cited therein). It has been held that a "mistake of fact exists where a person understands the facts to be other than they are, whereas a mistake of law exists where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts" (Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850 (1979), quoted in Concentric Pumps, Ltd., v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986); see also, C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974), and Universal Cooperatives, Inc. v. United States, 13 CIT 516, 518, 715 F. Supp. 1113 (1989)). Inadvertence has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake" (Occidental Oil & Gas Co. v. United States, 13 CIT 244, 246 (1989), quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, supra, 68 Cust. Ct. at 22).

The conditions required to be met under 19 U.S.C. 1520(c)(1) are that the clerical error, mistake of fact, or other inadvertence must be adverse to the importer, manifest from the record or established by documentary evidence, and brought to the attention of Customs within one year after the date of liquidation of the entry. 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, supra).

Basically, the protestant in this case claims that the entries should have been reliquidated because the broker who made the entries "... inadvertently classified [the merchandise] ... as drawing or marking out plotters [under HTS# 9017.20.8090] [when] [i]n fact, these plotters are designed for the use in the manufacturing of cardboard classifiable under HTS# 8441.10.0000 ...." That is, apparently the protestant is claiming that the alleged error was due to a mistake of fact, "where a person understands the facts to be other than they are" (see above, Hambro, and Concentric Pumps, supra; see also, IIT Corp. v. United States, 812 F. Supp. 213 (CIT 1993), reversed, 24 F. 3rd 1384 (Fed. Cir. 1994) ("... the document preparer simply understood the nature of the merchandise to be other than what it was [and] [t]hus, a mistake of fact occurred" (812 F. Supp. at 216); although the Court of Appeals reversed, it stated about the CIT finding of a mistake of fact: "[the finding] is amply supported by the record and not clearly erroneous" (24 F. 3d at 1388)).

Under 19 U.S.C. 1520(c)(1), the clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law must be "manifest from the record or established by documentary evidence." The alleged error in this case is not manifest from the record (see ITT, 24 F. 3d at 1387 "... manifest from the record [means] apparent to Customs from a facial examination of the entry and the entry papers alone, and thus requir[ing] no further substantiation"). In IIT, the Court stated that "[m]istakes of fact that are not manifest from [the] record ... must be established by documentary evidence" (24 F. 3d at 1387).

In this case there is no explanation of how or why the alleged error occurred, nor is there any evidence (e.g., by the person making the allegedly erroneous classification as to what he or she believed the merchandise to be and the basis for that belief) establishing that the alleged error is a mistake of fact and not a mistake of law. The only possible explanation of the error is the reference in the November 7, 1994, letters to "illustrated literature provided by the importer of record [that] this x-y plotter is used in the manufacturing of cardboard boxes", and there is no evidence as to when this literature was provided to the broker (see, in this regard, B.S. Livingston & Co. v. United States, 13 CIT 889 (1989), in which, because the importer's broker had the information necessary to classify the merchandise, relief was limited to a timely protest under 19 U.S.C. 1514 (see ruling HQ 226332, for an example of an application of the B.S. Livingston case)).

This evidence is not sufficient to establish a mistake of fact remediable under 19 U.S.C. 1520(c)(1) (i.e., that the nature of the imported merchandise was other than the preparer of the entry papers understood it to be). For examples of evidence in section 1520(c)(1) requests, see, e.g., HQ ruling 224118, July 26, 1993, note also the description of the evidence required in the CIT IIT decision (812 F. Supp. at 217) and note, in particular, that evidence to "[make] clear to Customs that a mistake of fact, rather than one of law, actually occurred" is necessary (812 F. Supp. at 217). See also, in this regard, Andy Mohan, Inc. v. United States, 74 Cust. Ct. 105, C.D. 4593, 396 F. Supp. 1280 (1975), aff'd 63 CCPA 104, C.A.D. 1173, 537 F. 2d 516 (1976); United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), in which the Court stated "[d]etermination of issues in customs litigation may not be based on supposition"; and Bar Bea Truck Leasing Co., Inc., v. United States, 5 CIT 124, 126 (1983), with regard to the sufficiency of evidence when there is "no affidavit or other evidence in support of [plaintiff's] counsel's bald assertion ...".

In the absence of sufficient evidence to establish a mistake of fact remediable under 19 U.S.C. 1520(c)(1), we are guided by the Court of Appeals IIT decision according to which--

... [A] prudent importer would submit all its supporting documentary evidence along with its timely notice alleging a mistake of fact before Customs consideration in order to facilitate a prompt and favorable decision [and as] [t]he [CIT correctly notes ... a party who waits past the time of filing its ... [section] 1520(c)(1) request to file supporting documentation risks an adverse decision by Customs in the interim'" [24 F. 3d at 1388.]

HOLDING:

The mistake of fact alleged in this case is not manifest from the record or established by documentary evidence, as required by 19 U.S.C. 1520(c)(1). The protest is DENIED.

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,

Acting Director

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