HQ 226598 - Application for further review of Protest No. 3901-95-102022; 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1); mistake of fact; antidumping duties; reliquidation; liquidation contrary to instructions; - United States International Trade Commision Rulings

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HQ 226598

February 24, 1997

LIQ-9-01-RR:IT:EC 226598 SAJ

CATEGORY: LIQUIDATION

Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, IL 60607

RE: Application for further review of Protest No. 3901-95-102022; 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1); mistake of fact; antidumping duties; reliquidation; liquidation contrary to instructions;
Juice Farms, Inc. v. United States; Omni
U.S.A. v. United States

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.

FACTS:

This protest has been filed against your denial of a request for reliquidation of the subject entry pursuant to 19 U.S.C.

This protest concerns an entry filed by Sumitomo Corp. of America (protestant), regarding the liquidation of merchandise consisting of replacement parts for mechanical transfer presses from Japan. Customs Form (CF) 7501 covers the subject entry number K93-00xxx09-5, made on November 9, 1990, and describes the imported merchandise as a "MACH PTS, OTH, MECH TRAN PRESSES."

The merchandise was classified under 8466.94.50408 in the Harmonized Tariff Schedule of the United States, and entered as if subject to antidumping duties. The subject entry was fully paid with antidumping duties on November 27, 1990. Headquarters message No. 1179112, dated June 28, 1991, instructed Customs to "ASSESS ANTIDUMPING DUTIES ON MERCHANDISE ENTERED."

The subject entry was liquidated on November 29, 1991, as entered with no refunds. The subject entry was liquidated at the rate of 14.51% under the case number A-588-810-000.

On January 14, 1992, the subject entry was protested under file number 3901-92-100046, solely on the basis of a mathematical error in the deduction for ocean freight. The entry was reliquidated on December 18, 1992, with a refund of $214.41, reflecting the miscalculation of the ocean freight. The applicability of the antidumping duties or the erroneous rate was not raised at this time.

On March 16, 1992, the Department of Commerce issued a final scope ruling concerning spare and replacement parts for mechanical transfer presses from Japan. The Department of Commerce determined that spare and replacement parts do not fall within the scope of the antidumping duty order on mechanical transfer presses and parts imported from Japan.

The file contains a letter dated July 13, 1992, wherein protestant requests reimbursement of antidumping duties for entry number K93-00xxx69-8. However, the entry at issue (entry number K93-00xxx09-5) is not referenced in the July 13, 1992 letter. In a letter dated January 4, 1995, protestant requested a review of the entry at issue with regard to Customs basis for liquidation. Customs treated protestant's request as a 1520(c)(1) claim under file number 3901-92-200162 and denied protestant's request as untimely on April 7, 1995.

A review of the file also contains a letter dated June 23, 1995 from the protestant, requesting further review of the entry at issue and seeking reliquidation of the entry at issue with refund of antidumping duties plus interest. The June 23, 1995 letter contended that Customs was unaware of the entry liquidation instructions. However, no evidence was presented in support of that contention. On August 25, 1995, protestant filed CF 19 protest, the protest at issue, requesting further review and reliquidation with refund of antidumping duties and interest.

ISSUE:

Whether Customs properly denied the protestant's request to reliquidate the subject entry under 19 U.S.C. 1514 and 19 U.S.C.

LAW AND ANALYSIS:

Initially, we note that the subject protest designated file number 3901-95-102022 was untimely filed pursuant to 19 U.S.C. 1514(c)(3)(B). A protest against the liquidation of an entry under 19 U.S.C. 1514 must be filed within 90 days after the date of liquidation (19 U.S.C. 1514(c)(3)). Otherwise, the tariff treatment of merchandise is final and conclusive. Protestant's request for reliquidation under 19 U.S.C. 1514 was untimely filed, since more than 90 days had elapsed between the date of liquidation and the filing of the protest.

The subject entry (entry number K93-00xxx09-5) was initially liquidated on November 29, 1991. On January 14, 1992, protestant timely protested, in CF 19 under file number 1901-92-100046, a mathematical error that was made with regard to ocean freight charges. Customs reliquidated the entry on December 18, 1992, with a refund of $213.41, reflecting the miscalculation of the ocean freight. It is important to emphasize that this entry was only protested on the basis of the miscalculation of the ocean freight.

Protestant did not raise the applicability of the antidumping duties or the erroneous rate, the issues at hand in the instant protest, until January 4, 1995. See p. 2 of the letter to Mr. Jeremy Baxter from Debra Collins, dated January 4, 1995.
19 U.S.C. 1514(d) provides that a protest of the reliquidation of an entry shall not involve any issues that were not involved in the reliquidation. Thus, for the issue at hand, the protest filed on CF 19 dated August 25, 1995 is untimely pursuant to 19 U.S.C. 1514. The protest was filed against the refusal to reliquidate, which was made on April 7, 1995, in response to protestant's letters dated January 4, 1995. Thus, in order to timely protest against that denial for reliquidation, protestant must have filed no later than 90 days after April 7, 1995, which was July 6, 1995.

Although not submitted on a CF 19, protestant's letter dated June 23, 1995 could have been a timely protest against Customs refusal to reliquidate of April 7, 1995. The June 23, 1995 letter identified the entry at issue (entry number K93-00xxx09-5) and contended that "Customs was unaware of [the] subject entry liquidation instructions." See letter to Mr. Jeremy Baxter from Jack Itoh, dated June 23, 1995. However, no evidence was presented in support of that contention, as discussed below.

As stated above, 19 U.S.C. 1514 sets forth the proper procedure for an importer to protest the classification and appraisal of merchandise when it believes Customs has misinterpreted the applicable law. However, 19 U.S.C. 1520(c)(1) is an exception to the finality of section 1514. Therefore, although the protest under consideration is untimely under 19 U.S.C. 1514, we note that the courts have treated untimely protest under 19 U.S.C. 1514 as seeking relief under 19 U.S.C. 1520(c), if such protest meet the requirements for claims under 19 U.S.C. 1520(c)(1).

The relief provided for in section 1520(c)(1) is not an alternative to the relief provided for in the form of protests under section 1514. Section 1520(c)(1) only affords "limited relief in situations defined therein." Phillips Petroleum Co. v. United States, 55 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).

Under section 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. The error must be adverse to the importer and manifest from the record or established by documentary evidence, and brought to the attention of Customs within one year after the date of liquidation.

The courts have interpreted section 1520(c)(1), defining a "clerical error [as] a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying 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 Corp. v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F.2d 850 (1970), quoted in Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1982); 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.

In Everflora Miami, Inc. v. United States, CIT Slip Op. 95-58, Customs Bulletin and Decisions of April 26, 1995, vol. 29, no. 17, p. 101,104 (Dated April 4, 1995), the Court stated that "[although the plaintiff did not specifically claim that it was seeking relief under [section' 1520(c)(1), in compliance with ITT Corp. v. United States, 24 F.3d 1384 (Fed. Cir. 1994)] the gravamen of plaintiffs claim is spelled out with sufficient particularity in the protests and attached documents to allow remedial action for mistake of fact or other inadvertence under

In the instant case, protestant has attached a letter dated June 23, 1995 to the subject protest submitted on a CF 19 dated August 25, 1995. The June 23, 1995 letter identifies the "error" which protestant believes caused the allegedly erroneous liquidation. In this letter, protestant requests further review and reliquidation with refund of antidumping duties and interest because "Customs was unaware of the subject entry liquidation instructions." See letter to Mr. Jeremy Baxter from Jack Itoh, dated June 23, 1995. As stated earlier, the letter of June 23, 1995 could have been a timely protest against the refusal to reliquidate of April 7, 1995, since it was received by Customs within the 90 day time frame set forth under 19 U.S.C. 1514. However, because no evidence was presented to support protestant's contention of erroneous liquidation, the June 23, 1995 was insufficient to provide protestant with the relief sought. 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. See ITT Corp. v. United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994).

In this case, protestant claims that the entries should have been reliquidated because Customs made an administrative error, in that, through inadvertence or mistake of fact, failed to continue the suspension of liquidation. Protestant also claims that the subject entry was liquidated contrary to instructions issued to the port. See letter to Mr. Jeremy Baxter from Jack Itoh, dated June 23, 1995.

At the time of liquidation (November 29, 1991), Customs was instructed to "ASSESS ANTIDUMPING DUTIES ON MERCHANDISE ENTERED", as per Headquarters message No. 1179112, dated June 28, 1991. Because the commodity team was unaware of the scope of determination which exempted the subject merchandise from the finding of antidumping duties, the subject entry was liquidated at the rate of 14.51% under the case number A-588-810-000.

However, even if Customs failed to continue the suspension of liquidation as protestant contends, the Court of International Trade has held that protestant has the burden to check for posted notices of liquidation and to protest in a timely manner, including instances where the Department of Commerce has ordered suspension of liquidation. See Juice Farms, Inc. v. United States 18 CIT 1037 (1994) (stating that although Customs erroneously liquidated entries, protestant had no relief to protest after the running of 90 day periods after the posting of the bulletin notices of liquidation.) The Court also emphasized that protestant bears "the burden to check for posted notices of liquidation and to protest in a timely manner, even in cases where Commerce has ordered suspension of liquidation." Id. at 1040. See, e.g., Omni U.S.A., Inc. v. United States, 11 CIT 480, 483, 663 F. Supp. 1130, 1133 (1987), aff'd, 6 Fed. Cir. (T) 99, 840 F.2d 912 (1988).

In Omni, the protestant failed to bring the errors to the attention of Customs within a year of the date of liquidation. The Court held that the authority to correct the errors lapsed according to the terms of section 1520(c)(1), and therefore the refusal by Customs to reliquidate the entries was the only course open to them. Id. The Court also emphasizes that the 90 day period in which to protest a liquidation is not tolled when liquidation takes place illegally. See also, United States v. A.N. Deringer, Inc., 66 CCPA 50, 593 F.2d 1015 (1979). Therefore, protestant "cannot treat an illegal liquidation as void; rather, the [protestant] must remain vigilant and protest the legality of such a liquidation within 90 days of notice." Id. It has been established that where the protestant fails to protest in a timely manner, liquidation becomes final.

It is also important to note that the June 23, 1995 letter makes reference to protestant's letter dated July 13, 1992 to Mr. K. Muellner. Even though the July 13, 1992 requests reimbursement of antidumping duties, the issue at hand, it does not reference the entry at issue. The July 13, 1992 letter only references entry number K93-00xxx69-8, which is not the entry at issue in this protest. See Degussa Canada Ltd. v. United States, 889 F. Supp 1543, 1545 (CIT 1995) (stating that to determine sufficiency of a claim, consideration is limited to the facts presented on the face of the complaint and documents appended to or incorporated in the complaint by reference). The evidence presented for the entry at issue shows that the error in the liquidation was not brought to the attention of Customs until January 4, 1995, more than three years after the entry was liquidated. Thus, protestant is outside the one year requirement set forth under 19 U.S.C. 1520(c)(1).

In the case at hand, protestant untimely filed the section 1520(c)(1) claim, since more than one year had elapsed between the date of liquidation and the filing of the subject protest. The subject entry was liquidated on November 29, 1991, and protestant did not raise the section 1520(c)(1) claim until January 4, 1995. Therefore, protestant's assertion that the subject entry was liquidated contrary to instructions issued to the port is inapplicable. Regardless of the fact that the original liquidation was erroneous, the subject protest was untimely filed pursuant to 19 U.S.C. 1514 and 19 U.S.C.

HOLDING:

The subject protest and the issue of the applicability of the antidumping duty under the scope of determination were untimely filed. Protestant's 1514 request was filed more than 90 days after liquidation, and the request for reliquidation for the entry at issue was not filed within one year after the date of liquidation. Protestant's request pursuant to 1514 and 1520(c)(1) was properly denied as untimely.

Consistent with the decision set forth above, you are hereby directed to deny the subject protest. 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 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 the decision. Sixty days from the date of the decision of 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,
International Trade Compliance

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