LIQ-9-01-CO:R:C:E 223452 SR
District Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266
RE: Application for Further Review of Protest No. 3801-0-003517;
Protest of 19 U.S.C. 1520(c)(1) denial; Protest of 19 U.S.C. 1514
protest denial
Dear Sir:
The above-referenced protest was forwarded to our office on
Application for Further Review of Protest No. 3801-0-003517,
dated November 20, 1990. We have considered the facts and the
issues raised; our decision follows.
FACTS:
The protestant imported fabric from Germany in 1987. The
merchandise was exported to Canada and then reimported to the
United States in 1989. The protestant claims that prior to
exportation to Canada the fabric was cut from 54 inches in width
to 44 inches in width. The fabric was entered from Canada using
a transaction value agreed to by Customs that was based on the
original importation price of $28.00 per yard. After
reimportation the protestant filed a timely protest under 19
U.S.C. 1514 which stated that the invoice values were false and
requested reappraisement. The protestant claimed that because
the fabric was cut down to 44 percent of the original width it
should be reappraised under a computed value for 44 percent of
the value under which it was entered. Customs requested
documentation, however, none was provided so the protest was
denied on February 7, 1990.
On June 22, 1990, the protestant filed a request for relief
under 19 U.S.C. 1520(c)(1), also requesting a value reduction.
This protest was denied. The current protest requests a review
of this denial under 19 U.S.C. 1520(c)(1). The protestant claims
that the error he made in the entered value is a mistake of fact
and therefore, he should be granted his request for
reliquidation.
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ISSUE:
Whether the protestants mistake in the declaration of value
is a mistake of fact that would be correctable under 19 U.S.C.
1520(c)(1).
LAW AND ANALYSIS:
The denial of the protest under 19 U.S.C. 1514 cannot be
reviewed. According to 19 CFR 174.31, if a protest is denied the
protestant must file a civil action in the United States Court of
International Trade within 180 days. The protestant in this case
did not exercise this right. The Court of International Trade in
San Francisco Newspaper Printing Co. v. United States, 9 CIT 517,
620 F. Supp. 738 (1985), held that Customs does not have the
authority to exercise jurisdiction over a protest after it has
been denied. Once Customs has mailed the denial of a protest the
plaintiff has two courses to pursue: to abandon the protest, or
to bring an action to the Court of International Trade. Id at
519.
Section 520(c)(1) of the Tariff Act of 1930, as amended (19
U.S.C.(c)(1), provides that Customs may correct certain errors,
if adverse to the importer, within one year of the date of
liquidation. Section 520(c)(1) provides as follows:
(c) Notwithstanding a valid protest was not filed, the
appropriate customs officer may, in accordance with
regulations prescribed by the Secretary, reliquidate an
entry to correct-
(1) a clerical error, mistake of fact, or other
inadvertence not amounting to an error in the
construction of law, adverse to the importer and
manifest from the record or established by documentary
evidence, in any entry, liquidation, or other customs
transaction, when the error, mistake, or inadvertence
is brought to the attention of the appropriate customs
officer within one year after the date of liquidation
or exaction; . . .
In order to bring a claim under 19 U.S.C. 1520(c)(1), the
mistake made must be one of fact not a mistake of law. These
terms are defined in C.J. Tower & Sons of Buffalo, Inc. v. United
States, 68 Cust. Ct. 17, C.D. 4327, 336 F. Supp. 1395 (1972),
aff'd 499 F.2d 1277, 61 CCPA 90, C.A.D. 1129 (1974). A mistake
of fact is defined as any mistake except a mistake of law; a
mistake which takes place when some fact which indeed exists is
unknown, or a fact which is thought to exist, which in reality
does not exist. A mistake of law exists where a person knows
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the facts as they really are but has a mistaken belief as to the
legal consequences of those facts.
A mistake of law, on the other hand, 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
Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603
F.2d 850, 854 (1979)(citing 58 C.J.S. Mistake, section 832).
In the case at issue, the protestant knew the value of the
fabric and knew that the fabric had been cut, but is claiming
that the incorrect declaration of value is a mistake of fact.
The court in Universal Cooperatives, Inc., v. United States, 13
C.I.T. 516, 715 F. Supp. 1113 (1989), states that there are
different types of factual mistakes. It is stated in the
decision that there is the decisional mistake in which a party
may make the wrong choice between two known, alternative set of
facts; there is also the ignorant mistake in which a party is
unaware of the existence of the correct alternative set of facts.
The decisional mistake must be remedied under Section 514 (19
U.S.C. 1514). Id. at 518.
It is well established that a mistake made in the
classification of goods, either by the Custom's agent or the
importer, when all the facts are known is not a mistake of fact
under 19 U.S.C. 1520(c)(1). When merchandise is misclassified
despite full knowledge of the facts it is considered to be a
decisional error and is considered a mistake of law. See
Computine, Inc. v. United States, 9 CIT 553 (1985), Mattel, Inc.
v. United States, 72 Cust. Ct. 257(1974), and Headquarters Ruling
Letter (HQ) 222636 dated September 16, 1991. We see the final
result of a claim of a decisional mistake in the declaration of
value under 19 U.S.C. 1520(c)(1) to have the same result as a
claim of a decisional mistake in the misclassification of
merchandise.
In the protest at issue no evidence was provided by the
protestant to show that he was not aware of the fact that the
fabric had been cut to a smaller size. The mistake that was made
was a decisional mistake in declaring the wrong value amount.
This is a mistake of law that is remedied under 19 U.S.C. 1514;
this is not a mistake of fact that is remedied under 19 U.S.C.
1520(c)(1).
HOLDING:
There is no evidence presented by the protestant that would
substantiate a claim for reliquidation under 19 U.S.C.
1520(c)(1). The mistake made in declaring the value on the
original width of the fabric was not a mistake of fact; it was a
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decisional error.
The protest should be denied in full. 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