LIQ-10-CO:R:C:E 221591 TG

Regional Commissioner of Customs
North Central Region
55 East Monroe St.
Chicago, Illinois 60603-5790

RE: Application for further review of Protest No. 3901-6-001276.

Dear Sir:

The above-referenced protest was forwarded to our office for further review. We have considered the points raised by your office and the importer. Our decision follows:

FACTS:

The protester, Mitsubishi International, entered 25,600 pounds of isocyanuric acid granular (ICA-G) on September 4, 1986. The entry was liquidated on October 24, 1986. This protest was filed on October 29, 1986, against the liquidation of the above entry and the exaction of antidumping duties at the rate or margin of 10.93%, which margin was determined in the original antidumping duty investigation.

The protester argues that the liquidation of the entry was premature and erroneous since the antidumping statute provides for the liquidation of suspended entries only after an annual review determination by the Department of Commerce of the antidumping margin covered by the time period within which the suspended entries fall.(19 U.S.C. 1673d, 1673e, 1675) Thus, since no final annual review determination of antidumping margin with respect to the time period within which the above entries falls had been made, Customs could not have received advice from Commerce as to the proper margin to be assessed on the above entries. Therefore, the protester argues that the liquidation was premature and in error and should be cancelled pending the final results of an applicable annual review determination. Alternatively, action on this protest should be withheld pending publication of an annual review determination covering the time

period within which the above entries fall so that the entries may be reliquidated and assessed with the proper amount of duty.

It is Customs' position that although the protestant is correct in asserting that his entry was liquidated prematurely, the remedy he seeks (cancellation of the liquidation) is not a viable option under Customs law and regulations.

LAW AND ANALYSIS:

Customs may not unliquidate a premature liquidation. See United States v. UTEX, CAFC Appeal 87-1414, CSD 86-21. If Customs discovers after a liquidation and the expiration of the time for protest that the merchandise should not have been allowed admission into U.S. commerce, the liquidation is still binding. A mistake in the liquidation process can be corrected only by one of the statutory methods set forth in 19 U.S.C. 1514. Consequently, once the protest period expires without a protest being filed, the courts will not consider the legality of the liquidation. In Gallagher and Asher v. U.S., 21 CCPA 313, T.D. 46832 (1933), a notice of appraisement, which was required to be sent to the importer to make the appraisement final, was not sent. The Customs Service liquidated the entry without sending that statutorily required notice. However, the importer failed to protest the liquidation within the protest period. The Government contended that the failure to protest timely even on the liquidation's legality barred further inquiry into that liquidation. The trial and appellate courts agreed with the Government.

In the UTEX case, the Court stated that it did not hold that the liquidation was correct, but absent timely reliquidation or protest it was final as to all aspects of the entry. The importer, the surety, and the government are bound by and have the right to rely on the finality of liquidation.

In Customs Ruling 721792, 722226 JL (August 3, 1983), we held that entries of merchandise which were liquidated in contravention of the suspension orders issued by the Department of Commerce were liquidated as a result of a mistake of fact or inadvertence and may be reliquidated at the lower countervailing duty rates if relief was requested in a timely-filed application pursuant to 19 U.S.C. 1520(c)(1), or a timely-filed protest under 19 U.S.C. 1514.

It is our view that in the current case the protester timely filed a protest under 19 U.S.C. 1514 against the liquidation of the entry and the exaction of antidumping duties. As stated above, the entry was liquidated on October 24, 1986 and a protest was filed by Mitsubishi International on October 29, 1986.

HOLDING:

Accordingly, although Customs may not unliquidate a premature liquidation, it may grant relief under the final anti- dumping duty determination via reliquidation pursuant to 19 U.S.C. 1514. Since a protest was timely-filed under 19 U.S.C. 1514, we advise you to grant the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division