LIQ-9-01 CO:R:C:E 223524 C
JFK Airport Area
J.F.K. Airport - Bldg. 178
Jamaica, New York 11430
RE: Protest nos. 1001-89-004671 and 1001-90-008261 through 1001-
90-008264; mistake of fact correctable under 19 U.S.C. 1520(c)(1)
where the entry invoice contains a misdescription of the
merchandise; burden of establishing mistake of fact rather than
error of law; correctable error must be manifest from the record
or established by documentary evidence
This responds to an October 15, 1991, memorandum from the
Protest and Control Section, New York, concerning the five
referenced protests (PRO-2-05-O:C:R JAD; Cert. #P727035081). We
have reviewed the record and our decision follows.
The five protests involve 20 entries of merchandise entered
under item 336.64 of the Tariff Schedules of the United States
(TSUS) at a duty rate of 33% ad valorem - Woven fabrics of wool;
Other; Valued over $9 per pound. The entries were liquidated
automatically as entered. After 90 days from the dates of
liquidation, but within one year of such dates, PROTESTANT, the
importer, filed requests for reliquidation under 19 U.S.C.
1520(c)(1), asserting that errors correctable under the statute
had occurred causing misclassifications of the merchandise.
PROTESTANT asserts that some of the merchandise should have been
classified under item 337.50, TSUS, at a duty rate of 8% ad
valorem - Woven fabrics of silk; In chief value, but not wholly,
of silk; Containing over 17 percent of wool by weight; Not
jacquard-figured - and some under item 336.15, TSUS, at a duty
rate of 8 cents per pound plus 12.5% ad valorem - Woven fabrics
of wool; Fabrics hand-woven with a loom width of less than 30
inches; Other. The 1520(c)(1) requests respecting the above
entries were denied on the ground that the misclassifications
were mistakes in the construction of law and, thus, not
correctable under the statute. PROTESTANT filed the instant
protests against these denials under 19 U.S.C. 1514(a)(7).
The protests set forth three scenarios and assert that each
forms the basis for a determination that correctable error
1.) Some merchandise was misclassified by
the broker because the invoices expressly
indicated that the merchandise was in "Chief
Value Wool." In fact, the merchandise is in
chief value silk with more than 17% of wool.
Therefore, instead of item 336.64, TSUS, item
337.50, TSUS, was applicable.
2.) Some merchandise was misclassified by
the broker because he did not know that the
merchandise was in chief value silk. Unlike
(1) above, the invoices did not expressly
indicate that the merchandise was in chief
value wool. The invoices provided composition
breakdowns of wool and silk. Again, item
337.50, TSUS, was the correct tariff item.
3.) Some merchandise was misclassified by
the broker because he did not know that the
merchandise had a loom width of less than 30
inches. There was no document in the entry
package that indicated this characteristic.
Instead of item 336.64, TSUS, item 336.15,
TSUS, was applicable.
PROTESTANT asserted in its requests for reliquidation that
the three situations above amounted to mistakes of fact that are
correctable under 19 U.S.C. 1520(c)(1). PROTESTANT asserts in
these protests that Customs erred in holding that the
misclassifications were mistakes of law and in denying the
reliquidation requests. PROTESTANT files its applications for
further review under 19 C.F.R. 174.24(c).
Do the foregoing allegations, if true, amount to mistakes of
fact correctable under 19 U.S.C. 1520(c)(1)?
LAW AND ANALYSIS:
Initially, we note that PROTESTANT's requests for
reliquidation under 19 U.S.C. 1520(c)(1) and its instant protests
filed under 19 U.S.C. 1514(a)(7) were filed timely. Its
applications for further review of these protests are proper
under 19 C.F.R. 174.24(a) or (c).
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. Certain conditions must be met. These are: 1) the error is
adverse to the importer's interest; 2) the error is manifest from
the record or established by documentary evidence; and 3) the
error is brought to Customs attention within one year of the date
of liquidation. The relief provided for under 19 U.S.C.
1520(c)(1) is not an alternative to the relief provided for under
the protest procedure of 19 U.S.C. 1514. Section 1520(c)(1)
provides only limited relief in the situations described therein.
Phillips Petroleum Company v. United States, 54 CCPA 7, 11,
C.A.D. 893 (1966); Computime, Inc. v. United States, 9 CIT 553,
555, 622 F. Supp. 1083 (1985); Concentric Pumps, Ltd. v. United
States, 10 CIT 505, 508, 643 F. Supp. 623 (1986). Under the
entry processing scheme, it is the protest procedure that
provides for redress of errors in the liquidation of entries.
Virtually any error in the liquidation can be corrected if
brought to Customs attention within 90 days of the date of
liquidation. Such redress is not available if the 90 day period
has expired. It is not the purpose of the reliquidation
provision of 19 U.S.C. 1520(c)(1) to extend the period for filing
objections that are properly redressable under the protest
procedure. As stated, section 1520(c)(1) applies only in limited
PROTESTANT herein asserts a mistake of fact. 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, sub nom. United States v.
C.J. Tower & Sons of Buffalo, Inc., 61 CCPA 90, C.A.D. 1129, 499
F. 2d 1277 (1974), a mistake of fact was defined by the United
States Customs Court as "a mistake which takes place when some
fact which indeed exists is unknown, or a fact which is thought
to exist, in reality does not exist [see cases cited]. . . . A
'mistake of fact exists where a person understands the facts to
be other than they are, whereas a mistake of law exists where a
person knows the facts as they really are but has a mistaken
belief as to the legal consequences of those facts.'" C.J.
Tower, 68 Cust. Ct. at 22, 336 F. Supp. at 1399 (quoting 58
C.J.S. Mistake, section 832). Yet, section 1520(c)(1) "is not
remedial for every conceivable form of mistake or inadvertence
adverse to an importer." Godchaux-Henderson Sugar Co., Inc. v.
United States, 85 Cust. Ct. 68, 69, 74, C.D. 4874 (1980). In
Universal Cooperatives, Inc. v. United States, 13 CIT 516 (1989),
the Court of International Trade described mistakes of fact as
either "decisional mistakes" or "ignorant mistakes." The former
are legal mistakes correctable only under 19 U.S.C. 1514, while
the latter are mistakes correctable under 19 U.S.C. 1520(c)(1):
[T]here are more types of factual mistakes
than are dreamt of in plaintiff's philosophy.
There is the 'decisional' mistake in which a
party may make the wrong choice between two
unknown, 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 challenged under Section 514
[of the Tariff Act of 1930, as amended][19
U.S.C. 1514]. The ignorant mistake must be
remedied under Section 520 [19 U.S.C. 1520]."
Id. at 518.
PROTESTANT asserts that under the first scenario above, a
mistake of fact is evidenced where the broker misclassified
merchandise on the basis that the invoice described the
merchandise to be in "CHIEF VALUE WOOL." It is asserted that
this description led the broker to classify the merchandise as
woven fabric of wool, 336.64, TSUS, rather than as woven fabric
of silk, in chief value but not wholly of silk, 337.50, TSUS.
Under PROTESTANT's second scenario, it is asserted that a mistake
of fact is evidenced where the broker classified merchandise
under the above item for woven fabric of wool because he did not
know that the merchandise was in chief value of silk. In this
instance, the invoice does not state that the merchandise is in
"CHIEF VALUE WOOL." Rather, documents in the entry package set
forth relative percentages of wool and silk, such as "70% wool,
30% silk." (One document submitted with this protest set forth
percentages according to value, such as "57.02% silk, 42.98%
wool." It is not clear whether this document was submitted with
the entry or afterward with the reliquidation request or
protest.) Under PROTESTANT's third scenario, it is asserted that
a mistake of fact is evidenced where the broker was unaware that
the merchandise had a loom width of less than 30 inches. There
was no indication in the documents comprising the entry packages
that the woven fabric of wool had this characteristic.
PROTESTANT asserts that in all of the foregoing scenarios, a
mistake of fact occurred since there was, in each of the three
scenarios, a fact in existence that the broker was unaware of -
to wit, that the merchandise was in chief value of silk, in the
first two scenarios, and the merchandise had a loom width of less
than 30 inches, in the third scenario. Had the broker known
these facts, it is asserted, the misclassifications would not
As above, the mistake of fact, or other error correctable
under the statute, must be manifest from the record or
established by documentary evidence. According to the United
States Court of International Trade in PPG Industries, Inc. v.
United States, 4 CIT 143 (1982), "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.'" Id.
at 147-48 (quoting from the lower court in Hambro Automotive
Corp. v. United States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F.
Supp. 1220 (1978)). The obvious reason for this requirement, or
this burden of proof, is to avoid the situation where a broker or
importer who misclassifies merchandise simply, and expediently,
points to a fact that characterizes the entered merchandise,
claims that fact was unknown at the time of entry, and asserts
mistake of fact to obtain reliquidation. If bald assertions of
this type were enough to gain redress under the statute, any
misclassification could be reliquidated. Moreover, it is not the
purpose of section 1520(c)(1) to provide a safety net for brokers
or importers who occasionally (or more often) perform their
customs business with less than appropriate "due diligence."
The question presented therefore is this: Is the evidence on
the record of these protests sufficient to clearly demonstrate
that a mistake of fact, as opposed to a mistake of law, was
responsible for the erroneous classifications? Ordinarily,
mistakes in classification of merchandise are considered mistakes
in the construction of a law and not correctable under section
1520(c)(1). Mattel, Inc. v. United States, 72 Cust. Ct. 257,
262-63, C.D. 4547 (1974) (and cases cited therein). Only when an
error correctable under 19 U.S.C. 1520(c)(1) is identified as
responsible for the misclassification can there be a
reliquidation of a classification error under section 1520(c)(1)
and only then if it is manifest from the record or established by
With respect to PROTESTANT's first scenario, where the
invoices contained the words "CHIEF VALUE WOOL," we conclude that
sufficient evidence exists to indicate a mistake of fact. This
conclusion is based on our finding that these words reasonably
caused the broker to misunderstand the nature of the entered
merchandise and reasonably and directly led to the classification
of the merchandise under item 336.64, TSUS. The liquidation by
Customs can also be characterized as based on this
misunderstanding, since the invoices with the misleading words
were submitted with the entry package for review. With respect
to PROTESTANT's second scenario, where the invoices did not
contain the words "CHIEF VALUE WOOL," there is not sufficient
evidence to demonstrate that it was a mistake of fact that caused
the misclassification rather than an error of law. With respect
to PROTESTANT's third scenario, where the entry package contained
no indication that the merchandise had a loom width of less than
30 inches, again, there is not sufficient evidence to establish
that it was a mistake of fact that caused the misclassification
rather than an error of law.
In the second scenario, above, it cannot be said that the
words "CHIEF VALUE WOOL" caused the misunderstanding and
consequent misclassifications. Further, there is no way of
knowing that the entered classifications were not the result of a
decisional mistake rather than an ignorant mistake, the former
being correctable only under the protest procedure of 19 U.S.C.
1514 and the latter being correctable under 19 U.S.C. 1520(c)(1).
Universal Cooperatives, Inc. v. United States, 13 CIT 516, 518
(1989). Bald assertion alone is not enough to establish mistake
In the third scenario, above, there is no evidence
establishing that either the importer or broker was unaware of
the true nature of the entered merchandise. Further, there is no
evidence to establish that mistake of fact was responsible for
the misclassification rather than the importer's or broker's
ignorance of the legal significance of loom width in the
classification of woven wool fabric under Subpart C, Part 3,
Schedule 3, TSUS. There is no evidence to establish that this
error was an ignorant mistake and not a decisional mistake.
Again, bald assertion is not enough. Had the invoices indicated
that the loom width was in excess of 30 inches, the case would be
akin to that evidenced in the first scenario. However, that is
not the case here, and in the absence of evidence of this or
another kind to establish a mistake of fact, the claim must fail
for want of evidence.
Based on the foregoing, we conclude that the protests
covering merchandise that was classified under item 336.64, TSUS,
rather than item 337.50, TSUS, for the reason that the invoices
contained the words "CHIEF VALUE WOOL," are approved. Protests
covering merchandise that was classified under item 336.64, TSUS,
rather than item 337.50, TSUS, where the invoices did not contain
the words "CHIEF VALUE WOOL," are denied. Protests covering
merchandise that was classified under item 336.64, TSUS, rather
than item 336.15, TSUS, are denied. In these latter two cases,
the proper remedy was to have filed a protest under 19 U.S.C.
1514. The reliquidation provision of section 1520(c)(1) is not
an alternative available for those who fail to file a timely
In order to obtain reliquidation to correct a mistake of
fact under 19 U.S.C. 1520(c)(1), such mistake must be manifest
from the record or established by documentary evidence. The
burden is on the protesting party to bring such mistake to
Customs attention with sufficient particularity. On the facts
here, where the record shows that the invoice contained an
erroneous description of the merchandise, and where the record
indicates that such misdescription reasonably caused the broker
and Customs to misunderstand the nature of the merchandise, there
is sufficient evidence upon which to base a finding of mistake of
fact. Where the invoice is not materially misleading, and there
is lacking sufficient other evidence to establish that a mistake
of fact - as opposed to an error of law - is responsible for an
erroneous classification, mistake of fact will not be found
because of this failure of evidence.
Based on the foregoing, you are instructed to approve
protest no. 1001-89-004671 and deny protests numbered 1001-90-
008261 through 1001-90-008264. A copy of this decision should be
attached to the Form 19, Notice of Action, to be sent to the
PROTESTANT in accordance with the notice requirement of 19 C.F.R.
John Durant, Director
Commercial Rulings Division