LIQ-9-01-CO:R:C:E 223813 SLR
District Director of Customs
Patrick V. McNamara Building
477 Michigan Ave.
Detroit, MI 48266
RE: Protest No. 3801-1-103103; 19 U.S.C. 1514(a)(7);
19 U.S.C. 1520(c)(1); Mistake of Fact
Dear Sir:
The above-mentioned protest was forwarded to this office for
further review. We have considered all arguments raised and our
decision follows.
FACTS:
This protest is against your decision not to reliquidate
an entry under 19 U.S.C. 1520(c)(1).
On November 9, 1990, the protestant, John V. Carr & Son,
Inc., a customhouse brokerage, entered merchandise invoiced as
"Spares for George Fischer Shot Blast Machine" as parts of other
sprayers in subheading 8424.90.90, Harmonized Tariff Schedule of
the United States Annotated (HTSUSA). On February 8, 1991,
Customs liquidated the entry as entered.
On September 16, 1991, the protestant requested the
reliquidation of the entry under 19 U.S.C. 1520(c)(1) to correct
an alleged mistake of fact. According to the protestant, the
merchandise at issue should have been classified in subheading
8424.90.20, HTSUSA, as parts of sand blasting machines, but
"[t]he entry input filing clerk was ignorant of the fact that
shot blasting machinery parts are equivalent in nature to sand
blasting machinery rather than other sprayer parts. The entry
input clerk's job is ministerial in nature and does not involve
the technical and legal expertise required to make determinations
as to matter of law."
On November 4, 1991, your office denied the petition
for reliquidation indicating that: "Invoice clearly states
"spares for shot blast machine"; therefore, nature of goods was
known. Misclass by clerk is a legal mistake not covered by
Sec. 520(c)."
-2-
On November 15, 1991, the subject protest was filed against
your refusal to reliquidate. The protestant claims that your
office erred in its interpretation of the law governing mistake
of fact. It maintains that through clerical error, the wrong
classification was inadvertently input by the entry processing
clerk. The protestant insists that there is no evidence to
suggest that the error was interpretational or decisional in
nature, that an entry processing clerk's function is ministerial
by definition and in no way involves the requirement of
independent judgements on matters of law. It claims that the
error was made due to carelessness and ignorance which remained
undetected until the file was reviewed by personnel with
technical knowledge of tariff classification.
ISSUE:
Did Customs err in its denial of the 1520(c)(1) request,
such that the subject protest should be approved?
LAW AND ANALYSIS:
Under 19 U.S.C. 1520(c)(1), an entry can be reliquidated to
correct a clerical error, mistake of fact, or other inadvertence
not amounting to an error in the construction of the law.
The error must be manifest from the record or established
by documentary evidence and brought to the attention of the
appropriate Customs officer within one year from the date of
liquidation.
The protestant alleges mistake of fact. A "mistake of fact"
occurs when a person understands the facts to be other than what
they really are and takes some action based on that erroneous
belief. A "mistake of law," on the other hand, occurs when
a person knows the true facts of the case but has a mistaken
belief as to the legal consequences of those facts. (See PPG
Industries, Inc. v. United States, 7 CIT 118, 123 (1984), and
cases cited therein.)
If the merchandise described as "Spares for George Fischer
Shot Blast Machine" on the invoice and "other sprayer parts" on
the entry was actually some other commodity, it could accurately
be stated that a mistake of fact existed as a result of the
misdescription. There was no misdescription here, however.
The shipment contained shot blast machinery parts and the invoice
accurately described the subject merchandise. The only question
was how to classify the merchandise. If an erroneous
classification resulted, it amounted to a mistake of law
unremediable under 19 U.S.C. 1520(c)(1).
-3-
HOLDING:
Customs did not err in its refusal to reliquidate under
19 U.S.C. 1520(c)(1). Consequently, you are instructed to deny
the protest. A copy of this decision should be sent to the
protestant along with the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division