HQ 227782 - Protest and Application for Further Review No. 1801-97-100054; clerical error, mistake of fact or other inadvertence; 19 U.S.C. ?1520(c)(1); 19 U.S.C. ?1514; sufficiency of evidence - United States International Trade Commision Rulings

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HQ 227782

August 26, 1998

LIQ-9-01-RR:CR:DR 227782 IOR

CATEGORY: ENTRY LIQUIDATION

Port Director
U.S. Customs Service
1624 East 7th Avenue, Ste. 101
Tampa, FL 33605-3706
Attn: Chief, Trade Compliance

RE: Protest and Application for Further Review No. 1801-97-100054; clerical error, mistake of fact or other inadvertence; 19 U.S.C. ?1520(c)(1); 19 U.S.C. ?1514; sufficiency of evidence

Dear Sir:

The above-referenced protest was forwarded to this office for further review. Our review follows a July 1, 1998 request for supporting documentation which, according to the protest would be forthcoming, to which no response was received. We have considered the evidence provided, the arguments made by the protestant, and Customs records.

FACTS:

The subject protest covers 12 entries which were made from July 8, 1994 through December 15, 1994. According to the representative entry summary, CF 7501, the merchandise was entered as "RUB, TIRES, NEW, AUTO: RADIALS" under subheading 4011.10.0010/4%, Harmonized Tariff Schedule of the United States (HTSUS). The entries were liquidated on dates ranging from November 14, 1994 through March 31, 1995. By letter dated August 4, 1995, protestant's broker requested reliquidation under 19 U.S.C. ?1520(c)(1) for the subject 12 entries (it is unclear whether all 12 entries were clearly identified in the petition for reliquidation, however customs records do reflect that petitions for reliquidation under 19 U.S.C. ?1520(c)(1) were filed for all 12 entries on September 1, 1995). The reasons given for the request are as follows:

1) The broker made a clerical error in entering the shipment in ABI. The broker left out the "A" and duty was assessed in error against a GSP eligible product. These goods were manufactured in Argentina, a GSP eligible country receiving duty free status.

....Please find attached backup documentation to support this request.

....Due to clerical error the mistake was not discovered until an auditor discovered the mistake.

The file does not contain any documentation that appears to have been submitted with the letter of August 4, 1995. By letter dated December 18, 1996, the protestant's broker requested refunds of the duty paid, per the instructions given in the GSP Renewal Act of 1996, and also made reference to the 520(c) reliquidation request. By letter dated January 6, 1997, Customs denied the request for reliquidation under 19 U.S.C. ?1520(c)(1), on the grounds that no documentary evidence exists to support the claim for such refunds. Customs further denied the refund requested under the GSP Renewal Act of 1996 as not applicable to the subject entries, and stated that a refund request under the Uruguay Rounds Agreement Act which retroactively reinstated GSP after the September 30, 1994 expiration, was untimely.

The instant protest was filed on April 4, 1997, and protests the denial of reliquidation of the 12 entries under 19 U.S.C.

...we submit that the failure to enter the subject merchandise, tires from Argentina, was due to simple inadvertence and not the result of an error in the construction of law. We are gathering information that will prove that [the broker] knew of the legal/statutory ramifications of entering tires from a GSP beneficiary country. We will also show that the importer imports approximately 90% of its tires from Brazil, a non-beneficiary country for that merchandise. This fact led to the ministerial mistake by a relatively new entry clerk that the subject shipments were not eligible for GSP treatment not by a mistake in construing the law and its consequences, but through inattention and the expectation that the subject goods were not eligible for duty free treatment.

This mistake carried over to the period when GSP eligibility lapsed. Because this same entry clerk did not expect the importations of tires for [protestant] to be from a GSP eligible country, (s)he did not use the Special Program Indicator "A" on the A.B.I. filed entries.

The protestant requests that action on the protest be withheld pending submission of documentation supporting the asserted facts. Despite requests, no subsequent submission of documents occurred. The documents submitted with the protest consist of the Entry Summary, Entry/Immediate Delivery, invoice for the merchandise from Argentina, a packing list for the merchandise, and a document providing shipment information from the shipper.

ISSUE:

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

LAW AND ANALYSIS:

Initially we note that this protest was timely filed pursuant to 19 U.S.C. ?1514(c)(3). The date of decision to deny reliquidation under 19 U.S.C. ?1520(c)(1), was January 6, 1997, and the protest was filed on April 4, 1997. For purposes of this decision we also find that a petition for reliquidation was timely filed for all 12 entries. In addition, the refusal to reliquidate an entry under 19 U.S.C. ?1520(c)(1) is a protestable matter pursuant to 19 U.S.C. ?1514(a)(7).

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 and adverse to the importer, 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 stated that: "[M]istakes of fact occur in instances where either (1) the facts exist, but are unknown, or (2) the facts do not exist as they are believed to [and] [m]istakes of law, on the other hand, occur where the facts are known, but their legal consequences are not known or are believed to be different than they really are" (Executone Information Systems v. United States, 96 F. 3d 1383, 1386 (Fed. Cir. 1996) (emphasis in original), citing Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850 (1979); see also, Degussa Canada Ltd. v. United States, 87 F. 3d 1301 (Fed. Cir. 1996)). Inadvertence has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake" (Aviall of Texas, Inc. v. United States, 70 F. 3d 1248, 1250 (Fed. Cir. 1995), citing Hambro, supra).

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, 10 CIT 505, 508, 643 F. Supp. 623 (1986)).

Basically, the protestant in this case claims that the entries should have been reliquidated because a relatively new entry clerk was led to make the ministerial mistake that the subject merchandise was not eligible for GSP treatment due to the fact that 90% of protestant's merchandise comes from a non-GSP-beneficiary country. As a result, the merchandise was classified without the "A" prefix. The protestant claims that the alleged error was due to a mistake of fact, inadvertence, or clerical error. In this case, the alleged mistake is not manifest from the record. There is no documentary evidence on the claimed clerical error, mistake of fact, or other inadvertence other than the statements by the protestant's representative in the request for reliquidation and the protest. This lack of evidence was brought to protestant's attention by the port in Customs denial of the petition for reliquidation, and by this office, and the protestant has been provided the opportunity to substantiate its claim.

In this case, the only explanation given as to how or why the alleged error occurred, is that the clerk was "relatively new" and that 90% of the protestant's imports come from non-beneficiary countries. There is documentary evidence in the file that the entry documents were clear that the merchandise was imported from Argentina, at the time of entry, and prior to the expiration of the liquidation/protest period.

The Courts have held that the essence of clerical error is the intent of the person preparing the document in which the error was allegedly made and where there is no evidence from that person as to his or her intent, the evidence is insufficient to sustain a claim of clerical error (see, Pacific Trading Co. v. United States, 20 Cust. Ct. 170, C.D. 1103 (1948); Francisco Castelazo v. United States, 24 Cust. Ct. 294, C.D. 1250 (1950); see also, PPG Industries, supra. In the instant case, there is no affidavit from the clerk as to the facts of the claimed clerical error, mistake of fact, or other inadvertence (for an example of the use of such evidence, see C.S.D. 89-87). Protestant asserts that the error was not the result of an error in the construction of law. However, we cannot simply accept such assertions without any corroboration (see Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983), with regard to the sufficiency as evidence of counsel's unsupported assertions).

HOLDING:

Relief may not be granted under 19 U.S.C. ?1520(c)(1) for the reasons given in the LAW AND ANALYSIS portion of this decision. 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 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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