LIQ-9-01-CO:R:C:E 222853 CB
Regional Commissioner
U.S. Customs Service
New York Region
Suite 716
6 World Trade Center
New York, NY 10048-0945
RE: Application for further review of Protest No. 1001-0-
001925 under 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 and our
decision follows.
FACTS:
A request for reliquidation of the subject entry pursuant to
19 U.S.C. 1520(c)(1) was denied and the subject protest was
filed.
According to protestant, the merchandise consists of two
"Rotadisc" driers which were manufactured in Norway. The driers
were classified by the importer's customs broker under the
provision for item 661.68, Tariff Schedules of the United States
(TSUS), dutiable at 4.2% ad valorem. That provision covers
industrial machinery except agricultural implements. Protestant
claims that classification of the merchandise under that
provision was the consequence of a "mistake of fact" on the part
of the broker, who was not aware that the driers were principally
used in agricultural operations.
ISSUE:
Whether the subject entry qualifies for reliquidation under
19 U.S.C. 1520(c)(1)?
LAW AND ANALYSIS:
Section 514 of the Tariff Act of 1930, as amended (19
U.S.C. 1514), sets forth the proper procedure for an importer to
protest the classification and appraised value of its merchandise
when it believes Customs has misinterpreted the applicable law -2-
and incorrectly classified the imported merchandise. Section 514
makes the tariff treatment of goods final and conclusive, unless
the classification is protested within ninety days of
liquidation.
Section 520(c)(1) of the Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1)), provides that Customs may correct certain
errors, if adverse to the importer, within one year of the date
of liquidation. An entry may be reliquidated in order to correct
a clerical error, mistake of fact, or inadvertence not amounting
to an error in the construction of a law. See 19 U.S.C. 1520
(c)(1); 19 CFR 173.4. 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 offers "limited relief in the situation defined
therein" (Phillips Petroleum Company v. United States, 54 CCPA 7,
1, 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 91985), and Concentric Pumps, Ltd. v. United States,
10 CIT 505, 508, 643 F. Supp. 623 (1986)).
Section T.D. 54848 describes and distinguishes correctable
errors under 1520(c)(1). Mistake of fact occurs when a person
believes the facts to be other than what they really are and
takes action based on that erroneous belief. The reason for the
belief may be that a fact exists but is unknown to the person or
he may believe that something is a fact when in reality it is
not. Inadvertence connotes inattention, oversight, negligence,
or lack of care while clerical error occurs when a person intends
to do one thing but does something else, including mistakes in
arithmetic and the failure to associate all the papers in a
record under consideration. Occidental Oil & Gas Co. v. United
States, Vol. 23 Cust. Bull. & Dec. No. 17, April 20, 1989, page
40, 42, CIT Slip Op. 89-40, quoting C.J. Tower & Sons of Buffalo,
Inc. v. United States, supra at 22.
However, errors in the construction of a law are not
correctable under 1520(c). Those occur when a person knows the
true facts of a case but has a mistaken belief of the legal
consequences of those facts and acts on that mistaken belief.
See, 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, supra at 508; see also, C.J. Tower
& Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22,
D.D. 4327, 336 F. Supp. 1395 91972), aff'd, 61 CCPA 90, C.A.D.
1129, 499 F. 2d 1277 (1974), and Universal Cooperatives, Inc. v.
United States, Vol. 23 Cust. Bull. & Dec., No. 29, July 19, 1989,
page 38, 40, CIT Slip Op. 89-89), and 94 Treas. Dec. 244, 245-
246 (1959).
-3-
The failure of the broker to properly determine the
principal use of the merchandise is not a mistake correctable
under 19 U.S.C. 1520(c)(1). The packing list submitted together
with the entry summary clearly states that the merchandise is a
grain drying system. Therefore, the conclusion that must be
reached is that the customs broker made a decision to classify
the merchandise as entered. Even if we were to accept that a
mistake was made, it was decisional in nature. The broker may
have made the wrong choice between the two alternative
classifications. However, as stated by the Court of
International Trade in Universal Cooperatives, Inc. v. United
States, supra at 40, a decisional mistake must be challenged
under 19 U.S.C. 1514.
HOLDING:
Based on the foregoing discussion, this protest should be
denied.
A copy of this decision should be attached to the CF 19
Notice of Action to satisfy the notice requirement of section
174.30(a), Customs Regulations.
Sincerely,
John A. Durant, Director
Commercial Rulings Division