LIQ-9-01 RR:CR:DR
961256 CK
Category: Reliquidation
Port Director of Customs
U.S. Customs Service
797 South Zaragosa Road
El Paso, Texas 79907
RE: Protest and Application for Further Review of no. 2402-97-150002; 19 U.S.C. 1520(c); mistake of fact; Executone Info Systems v. United States; 19 U.S.C. 1520(d); Post-importation NAFTA claim
Dear Sir:
The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.
FACTS:
Thompson Consumer Electronics., Inc. (Protestant) protests the refusal of Customs to reliquidate 2 of its entries under 19 U.S.C. 1520(c). Protestant claims that part number 2G27012-03B, Coty Yoke (Pin), is a NAFTA eligible good and should have been entered duty free.
Entry number Entry date Liquidation date
665-xxxx721-5 09/14/95 12/29/95
665-xxxx680-6 09/15/95 01/05/96
Protestant claims that due to an inadvertent error and mistake of fact, the Coty Yoke Pins were entered dutiable when they were in fact eligible for preferential duty free treatment under NAFTA. This protest appears on a CF 19, dated May 23, 1997, and states that it is reply to Customs denial of their section 1520(c) claim on March 12, 1997.
Attached to the protest is a copy of the original request for refund under 19 U.S.C. 1520(c)(1), dated October 24, 1996. The request was filed on behalf of Protestant by its broker, for entry 665-xxxx680-6, dated September 15, 1995, liquidated on January 5, 1996, by Thompson Consumer Electronics. The letter requests reliquidation due to clerical error, that part number 2G27012-03B was not shown as a NAFTA eligible item, and duty was erroneously paid.
Also attached is the March 12, 1997 letter denying the section 1520(c)(1) claim for entry 665-xxxx680-6, entered September 15, 1997, due to the fact Protestant failed to provide sufficient facts to establish that this misclassification was caused as the result of a clerical error.
The entry summary for entry 665-xxxx680-6 is also attached. The country of origin is listed as Mexico, and the entry and import date as September 15, 1995. There are two lines of merchandise on the CF 7501. The first line lists 1 Inv. CRT PART: DEFLECTION COIL, HTSUS classification is MX8540.91.2000, entered Free, and with a merchandise processing fee of .19%. The second line lists CRT PART: DEFLECTION COIL, HTSUS classification is 8540.91.2000, with a duty rate of 3.0%, and with a merchandise processing fee of .21%.
Also attached is a NAFTA Certificate of Origin for the blanket period of 01/01/95 to 12/31/95. The producer and exporter is listed as Productos Electronicos de la Laguna S.A. de CV, and the importer as Thompson Consumer Electronics, Inc. The Certificate of Origin covers 2G27012-03B Coty Yoke, HTSUS 8540.91. Most importantly, the Certificate of Origin is dated 10/20/95, and signed by Kirk Jacquay.
Furthermore, attached is a consolidation sheet for entry number xxxx680-6, entry date September 15, 1995, and lists four part numbers, including 2G27012-03B. The named part number is the only part listed without an “N” prefix.
A U.S. Customs invoice sheet is attached. The shipper is Productos Electronicos de la Laguna S.A. de CV, and the recipient is Thompson Consumer Electronics, Inc. Again four lines of merchandise are listed, and part numbers are identified, all list Mexico as the Country of Origin. Part number 2G27012-03B is the only one of the four that is not listed as qualifying for NAFTA treatment.
ISSUES:
1. May both entries be considered, when one was raised at the time of the protest of the denial of the 1520(c) claim?
2. Was the denial of the 19 U.S.C. 1520(c)(1) claim proper?
3. Did Protestant make a claim under 19 U.S.C. 1520(d), and may relief be granted under this theory?
LAW AND ANALYSIS:
Issue #1:
Protestant filed an original section 1520(c) claim for entry 665-xxxx680-6 on October 24, 1996. Customs denial of the section 1520(c) claim for entry 665-xxxx680-6 was on March 12, 1997. Protestant filed this protest petition, of the denial of the section 1520(c) claim for entry 665-xxxx680-6, on May 23, 1997.
Under section 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. The error must be adverse to the importer and manifest from the record or established by documentary evidence and brought to the attention of the Customs Service within one year after the date of liquidation. Therefore, the petition for 1520(c) relief for entry 66-xxxx680-6, on October 24, 1996, was within one year of the date of liquidation on January 5, 1996, and was timely. Additionally under 19 U.S.C. 1514 (a)(7), the refusal to reliquidate a 1520(c) claim is a protestable matter. The protest must be filed within the 90 day statutory period. Here Customs denied the 1520(c) petition on March 12, 1997 for entry number 665-xxxx680-6, and Protestant protested that denial on May 23, 1997. Therefore, the protest for entry number 665-xxxx680-6 was timely filed.
However, in this protest dated May 23, 1997, Protestant, for the first time mentions entry number 665-xxxx721-5, imported on September 14, 1995. There is no evidence submitted that a 1520(c) claim was ever made for entry number 665-xxx721-5. The only time this entry number is mentioned is in the May 23, 1997 protest. In Lykes Pasco, Inc. v. United States, 14 F. Supp. 2d 748 (1998), appeal dismissed, 1998 U.S. App. _ (Fed. Cir. Dec. 15, 1998), the Court of International Trade stated that where the entries are noted with precision, and the supporting documentation is limited to specific entries, Customs should not be held to earlier cases regarding leniency as to technical precision, and the sufficiency of protests. The court stated instead, “the burden placed that would be placed on the Customs Service would require it to go beyond the most exactly defined details of the protest, to realize that an inadvertence or omission that has occurred, to incorporate its historical knowledge of the entire series of transactions that may have been involved or make corrections.” In this case, we have a similar circumstance, a claim for a refund under 1520(c) was made, supporting documentation was provided, and the claim was ultimately rejected for entry number 665-xxxx680-6, and no such claim for entry number 665-xxxx721-5. Therefore, the protest is untimely in regards to entry number 665-xxxx721-5.
Issue #2:
Under section 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. The error must be adverse to the importer and manifest from the record or established by documentary evidence and brought to the attention of the Customs Service within one year after the date of liquidation. The relief provided for in 19 U.S.C. §1520(c)(1) is an exception to the finality of section 1514. 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) has frequently been interpreted by the Courts. It has been stated that "[a] clerical error is a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention" (see PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984), and cases cited therein). It has been stated that: "[M]istakes of fact occur in instances where either (1) the facts exist, but are unknown, or (2) the facts do not exist as they are believed to [and] [m]istakes of law, on the other hand, occur where the facts are known, but their legal consequences are not known or are believed to be different than they really are" (Executone Information Systems v. United States, 96 F.3d 1383, 1386 (Fed. Cir. 1996), citing Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F.2d 850 (1979); see also, Degussa Canada Ltd. v. United States, 87 F.3d 1301 (Fed. Cir. 1996)). Inadvertence has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake" (Aviall of Texas, Inc. v. United States, 70 F.3d 1248, 1249 (Fed. Cir. 1995), citing Hambro, supra).
The conditions required to be met under 19 U.S.C. §1520(c)(1) 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, 496 F. Supp. 1326 (1980); see also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), and Concentric Pumps, Ltd. v. United States, supra).
Under 19 U.S.C. §1520(c)(1), the clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law must be "manifest from the record or established by documentary evidence." The alleged error in this case is not manifest from the record (see ITT Corp. v. United States, 812 F. Supp. 213 (CIT 1993), reversed, 24 F.3rd 1384 (Fed. Cir. 1994) at 1387, "... manifest from the record [means] apparent to Customs from a facial examination of the entry and the entry papers alone, and thus requir[ing] no further substantiation"). In ITT, the Court stated that "[m]istakes of fact that are not manifest from [the] record ... must be established by documentary evidence" (id.).
Additionally, Protestant cites to C.J. Tower & Sons of Buffalo, Inc. v. United States, 61 C.C.P.A. 90, 499 F.2d 1277 (CCPA 1974), which the court references in Executone, supra, as authority that Customs should reliquidate the entries they incorrectly entered due to a mistake of fact. In Executone, the company alleged a mistake of fact: namely, Executone believed, at the time of importation, that valid Form A’s had been filed when, in fact, they had not. At all times, Executone was aware that the imported merchandise was entitled to duty-free entry as goods of a CERBA country. It was due to an inadvertence on the part of Executone’s brokers that the forms they thought had been filed with the entry documents, were inadvertently not filed with the entry documents. The court stated that the belief that the Form A’s had been filed when in fact they had not, causing Executone to pay the duty rate of 8.5% ad valorem for its imports is exactly the situation 1520(c) was created to correct. Here, the Protestant asserts that while it had the required certificate of origin in order to make a valid claim under 19 CFR 181.21(a), it somehow neglected to make that claim. As in Executone, no documentary evidence has been presented to support its assertion. On the contrary, the presented documentary evidence suggests that the required certificate of origin did not exist when the entry was made. The certificate was issued October 10, 1995, about six weeks after the entry which was made on September 15, 1995. Because the evidence fails to show that the Protestant possessed the certificate on September 15, 1995 and there is no evidence to show that there was an error, or how that alleged error occurred, the reliance on C.J. Tower & Sons of Buffalo, Inc. v. United States, supra, is misplaced.
Moreover, the facts in the aforementioned cases are distinguishable from the facts presented here by Protestant. C.J. Tower and ITT (supra), and Zaki Corp. v. United States, 960 F. Supp. 350 (1997), and Taban Co. v. United States, 960 F. Supp. 326 (1997) all involved mistakes of fact about the nature of the merchandise itself. The court found that where the exact nature of the goods is not known then a mistake in classification can be one of fact, and a 1520(c) petition can be granted. Here Protestant knew the exact nature of the goods, the Country of Origin, and the exporting country. Each document submitted with this protest, and listed in the FACTS portion of this ruling, shows that Mexico is the Country of Origin for the merchandise. The Protestant knew the merchandise at issue was Coty Yoke Pins, exported from the Country of Origin, Mexico. The Protestant knew the merchandise originated in Mexico, and was exported from Mexico into the US. At most, the evidence shows that the Protestant failed to make a claim for preference and that the failure was not due to a mistake as to the nature of the goods.
Furthermore, this 1520(c) claim would fail due to lack of evidence. Contrary to Protestant’s claim, the inadvertence or mistake of fact is not manifest from the record. Documentary evidence showing such inadvertence or mistake of fact is necessary to establish a section 1520(c) claim. Here, Protestant claims a mistake of fact, yet, has not proffered one document to substantiate this claim. Therefore, the 1520(c) claim was correctly denied, since, the mistake was one of law, not of fact, and no documentary evidence was submitted to substantiate the alleged mistake of fact.
Issue #3:
Did Protestant make a claim for reliquidation under 19 U.S.C. 1520(d) for preferential NAFTA treatment? Frequently, the entry is liquidated as entered because the importer lacked a valid Certificate of Origin at the time of importation and could not claim NAFTA preference, which is the case here, the Certificate of Origin is dated 10/20/95. The date of liquidation was 9/15/95. Subsection 1520(d) provides the exclusive remedy for their predicament. However, Customs will consider a so-called protest that is a timely § 1520(d) request, if filed “within 1 year after the date of importation” and accompanied by the statutorily required information.
19 U.S.C. 1520 (d), which concerns post-importation duty refund claims for goods qualifying under the NAFTA rules of origin, provides as follows:
(d) Notwithstanding the fact that a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to refund any excess duties paid on a good qualifying under the rules of origin set out in section 202 of the North American Free Trade Agreement Implementation Act for which no claim for preferential tariff treatment was made at the time of importation if the importer, within 1 year after the date of importation, files, in accordance with those regulations, a claim that includes
(1) a written declaration that the good qualified under those rules at the time of importation;
(2) copies of all applicable NAFTA Certificates of Origin (as defined in section 508(b)(1)); and
(3) such other documentation relating to the importation of the goods as the Customs Service may require.
The regulation issued under 19 U.S.C. 1520(d) can be found in 19 CFR, Part 181,
Subpart D.
19 CFR 191.82(b) contains the requirements for a 1520(d) claim:
(b) Contents of claim. A post importation claim for a refund shall be filed by presentation of the following:
(1) A written declaration stating that the good qualified as an originating good at the time of importation and setting forth the number and date of the entry covering the good;
(2) Subject to § 181.22(d) of this part, a copy of each Certificate of Origin (see § 181.11 of this part) pertaining to the good;
(3) A written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person. If such documentation was so provided, the statement shall identify each recipient by name, Customs identification number and address and shall specify the date on which the documentation was provided;
(4) A written statement indicating whether or not the importer of the good is aware of any claim for refund, waiver or reduction of duties relating to the good within the meaning of Article 303 of the NAFTA (see subpart E of this part). If the importer is aware of any such claim, the statement shall identify each claim by number and date and shall identify the person who made the claim by name, Customs identification number and address; and
(5) A written statement indicating whether or not any person has filed a protest or a petition or request for reliquidation relating to the good under any provision of law, and if any such protest or petition or request for reliquidation has been filed, the statement shall identify the protest, petition or request by number and date
In this case, Protestant has not made a 1520(d) claim. A claim was made in the October 25, 1995 letter from Protestant to Customs, seeking a refund on entry 665-xxxx680-6, for part number 2G27012-03B, under 19 U.S.C. 1520(a)(4). In that letter protestant states, “due to a clerical error, this part number should have also been entered under NAFTA. Attached please find the NAFTA Certificate for this part.” Here, Protestant requested a refund for a NAFTA eligible good, and supplied a certificate of origin. However, Protestant did not make the three certifications required by 19 CFR 181.32(b). Protestant failed to make : 1)a written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person; 2) a written statement indicating whether or not the importer of the good is aware of any claim for refund, waiver or reduction of duties relating to the good within the meaning of Article 303 of the NAFTA; and 3) a written statement indicating whether or not any person has filed a protest or a petition or request for reliquidation relating to the good under any provision of law. Here, the Protestant made a claim under 1520(a)(4), and then failed to meet all five requirements found in 19 CFR 181.32(b). Therefore, since the Protestant failed to state a 1520(d) refund was sought, and instead made a claim under 1520(a)(4), and failed to meet all five requirements of 19 CFR 181.32(b), it did not make an effective claim under 1520(d), by its letter of October 25, 1995.
HOLDING:
1. In this protest dated May 23, 1997, Protestant for the first time mentions entry number 665-xxxx721-5, imported on September 14, 1995. There is no evidence submitted that a 1520(c) claim was ever made for entry number 665-xxx721-5. The only time this entry number is mentioned is in the May 23, 1997 protest. Therefore, the protest is untimely in regards to entry number 665-xxxx721-5.
2. The Protestant knew the merchandise originated in Mexico, and was exported from Mexico into the US, but the certificate of origin is dated subsequent to the entry date. Accordingly, it is unclear that any error occurred at entry. The section 1520(c)(1) petition was correctly denied since the evidence is insufficient to show that any liquidation error was due to an error correctable under that statute.
3. Protestant did not make a claim for duty free treatment for part number 2G27012-03B, under 19 U.S.C. 1520(d), by its letter of October 25, 1995. Protestant sought a refund under 19 U.S.C.1520(a)(4) of the duties paid on that part number, and claiming it was a good of a NAFTA country, and enclosing a NAFTA certificate of origin. Protestant failed to identify a claim under 19 U.S.C. 1520(d), and then did not meet the five requirements of 19 CFR 181.32(b). Therefore, Protestant failed to make a claim or seek a refund under 19 U.S.C. 1520(d).
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings
will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division