LIQ-9-01-CO:R:C:E 222841 PH

Regional Commissioner of Customs
Pacific Region

RE: Application for Further Review of Protest No. 2704-90- 0017898; Sufficiency of Evidence; 19 U.S.C. 1520(c)(1) Dear Sir:

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

FACTS:

According to the file, on December 12, 1988, the protestant imported a quantity of men's golf jackets, made with 65 percent polyester and 35 percent cotton woven fabric. The jackets were entered under item 381.9530, Tariff Schedules of the United States (TSUS), dutiable at the rate of 27.5 percent ad valorem plus $.14 per pound, with duty in the amount of $36,832.42. The entry date for this importation was December 10, 1988. The entry was liquidated on January 20, 1989.

On January 3, 1990, the representative of the protestant filed a request that the entry be reliquidated under 19 U.S.C. 1520(c)(1) because "[a]lthough entered under item 381.9530, TSUS, these golf jackets are in fact protective apparel for use in inclement weather constructed of fabric which has been treated to be water resistant by being coated or laminated with rubber or plastic and thus entitled to classification under item 376.56, TSUS [dutiable at the rate of 7.6 percent ad valorem]." Accord- ing to this letter, the merchandise was entered under item 381.9530 "purely as a result of [the protestant's] lack of knowledge that the fabric used in the manufacture of the instant style had been coated with a silver colored rubber or plastic and was water resistant." Subsequently, according to the January 2, 1990, letter "it [came] to [the protestant's] attention that the golf jackets ... are in fact constructed of water resistant fabric, which when subjected to the rain test specified in AATCC 35 - 1985 permits less than 1.0 gram of water penetration." The protestant stated that a "representative sample of the style in issue" had been retained at its office and was available for Customs analysis, should Customs require it.

The protestant's request for reliquidation was denied on March 9, 1990, on the basis that the claim was not correctable under 19 U.S.C. 1520(c)(1). On April 30, 1990, the protestant filed the protest under consideration and applied for further review. The basis for the protest was the same as that stated in the initial request for reliquidation under 19 U.S.C. 1520(c)(1), described above. The protest was forwarded for further review on October 3, 1990.

ISSUE:

Was there sufficient evidence in this case to grant the petition filed under 19 U.S.C. 1520(c)(1), the denial of which is the subject of 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 section 520(c)(1), Tariff Act of 1930, as amended (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. These conditions 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 (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)).

It may be that the counsel of the protestant in this case alleges a mistake of fact (i.e., "where a person understands the facts to be other than they are, [as contrasted with] a mistake of law ... 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), quoting 58 C.J.S. Mistake, section 832) or an inadvertence ("an oversight or involuntary accident, or the result of inattention or carelessness, and even ... a type of mistake" (Occidental Oil & Gas Co. v. United States, Vol. 23 Cust. Bull. & Dec. No. 17, April 26, 1989, page 40, 42, CIT Slip Op. 89-40, quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp 1395 (1972)). However, as stated above, in order to qualify for relief under 19 U.S.C. 1520(c)(1), the clerical error, mistake of fact, or other inadvertence must be manifest from the record or established by documentary evidence. According to the Court in PPG Industries, Inc. v. United States, 4 CIT 143 (1982), quoting, in part, from the lower court in Hambro, id, (Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F. Supp. 1220 (1978)):

... it is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact. The burden and duty is upon the plaintiff to inform the appropriate Customs official of the alleged mistake with "sufficient particularity to allow remedial action." [4 CIT at 147-148; see also, 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."]

In this case there is no 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 that the merchandise was entered under the wrong tariff item because the protestant did not know that the fabric used in the manufacture of the merchandise had been coated to be water resistant and the offer to provide what is stated to be a representative sample of the style in issue (see Bar Bea Truck Leasing Co., Inc., v. United States, 5 CIT 124, 126 (1983), with regard to the sufficiency as evidence of a counsel's unsupported assertions). There is no reference to waterproofing or any coating of the merchandise in the entry summary, entry/immediate delivery, bill of lading, factory packing list, Hong Kong Government export license, certificate of Hong Kong origin, declaration of origin, invoice, or any of the other documents submitted with the file. There is no affidavit by an appropriate employee of the protestant and/or manufacturer or foreign exporter as to the facts of the claimed clerical error, mistake of fact, or other inadvertence (see C.J. Tower & Sons of Buffalo, Inc. v. United States, supra (cited by the protestant), and C.S.D. 89-87), nor is there evidence of the protestant's past practice in entering the merchandise under consideration (see ruling 220965 dated November 26, 1990) or any other documentary evidence (see, e.g., Protest Review Decision (P.R.D.) 78-32 and C.S.D. 80-19 (each cited by the protestant)).

In the absence of sufficient evidence establishing that the classification of the merchandise under consideration under item 381.9530, TSUS, was the result of a clerical error, mistake of fact, or other inadvertence correctable under 19 U.S.C. 1520(c)(1), the protest must be DENIED.

HOLDING:

The evidence submitted in this case was insufficient to grant the petition filed under 19 U.S.C. 1520(c)(1), the denial of which is the subject of this protest. The protest is DENIED.

Sincerely,

John Durant, Director