LIQ-9-01-RR:IT:EC 226478 GEV
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044
RE: Application for further review of Protest No. 2304-95-100113; 19 U.S.C. 1520(c)(1);
mistake of fact; classification of Persian limes; legal
construction; C.J. Tower & Sons of
Buffalo, Inc. v. United States; Bar Bea Truck Leasing
Co., Inc. v. United States; PPG
Industries, Inc. v. United States; ORR Ruling 75-0026; HQ
Dear Sir or Madame:
This is in response to your memorandum dated September 26,
1995, forwarding the above-referenced protest to this office for
further review. We have considered the facts and issues raised,
and our decision follows.
This protest has been filed against your denial of a request
for reliquidation of the subject entries pursuant to 19 U.S.C.
The protestant filed 388 entries from June 20, 1993, through
September 20, 1993, covering imported fresh Persian limes from
Mexico. The limes were classified under subheading 0805.30.4000
of the Harmonized Tariff Schedule of the United States (HTSUS),
which provided for "Citrus fruit, fresh or dried: Lemons (Citrus
limon, Citrus limonum) and limes (Citrus aurantifolia): Limes,"
which were dutiable at 2.2 cents per kilogram in 1993. Pursuant
to Customs Directive No. 3550-39, dated January 16, 1991, you
have forwarded copies of representative entry documentation
covering the entries in question (i.e., an Entry Summary (CF
7501), an invoice from a Mexican vendor, and a U.S. Department of
Agriculture inspection certificate). The aforementioned entry
documentation specifically identifies the limes as "citrus
latifolia," or "Mexico Persian seedless limes," or simply "limes:
fresh or dried." Subheading - 2 -
0805.90.00 provided for "Citrus fruit, fresh or dried: Other
[than Lemons (Citrus limon, Citrus limonum) and limes (Citrus
aurantifolia)], including kumquats, citrons and bergamots,"
dutiable at 0.9% in 1993.
These entries were liquidated as entered from October 8,
1993, through January 3, 1994. On June 30, 1994, Administrative
Message 94-0661 was posted to the OTO5 Bulletin Board, listing
modifications to the 1994 HTSUS-Supplement 2. The message gave
notice of statistical breakout changes to subheading 0805.90.00.
As a result of this notice, it was determined that the proper
classification for Persian limes is subheading 0805.90.0010
HTSUS, which provides for "Citrus fruit, fresh or dried: Other,
including kumquats, citrons and bergamots...Tahitian, Persian
limes and other limes of the citrus latifolia variety."
(Emphasis added) The tariff classification is duty-free from
Mexico. According to the National Import Specialist (NIS),
Persian limes, which are seedless, are of the citrus latifolia
variety and the limes of subheading 0805.30.4000 HTSUS, citrus
aurantifolia, are seeded limes. According to the port, the
subject limes would have been more appropriately classified under
subheading 0805.90.00 HTSUS, as "other." The NIS is in agreement
with classification under subheading 0805.90.00 HTSUS.
On October 7, 1994, Customs received a letter from the
protestant requesting reliquidation of the subject entries of
fresh Persian limes under subheading 0805.90.0010 of the HTSUS.
The letter states that the limes had been "erroneously classified
as Limes (citrus aurantifolia)." The request for reliquidation,
which was received by Customs more than 90 days after the date of
liquidation, was treated as a request for reliquidation under 19
U.S.C. 1520(c)(1). However, because the petition for
reliquidation did not meet the criteria of 19 U.S.C. 1520(c)(1)
requiring a clerical error, mistake of fact or other
inadvertence, the request was denied on April 7, 1995.
The protestant filed the protest at issue on July 3, 1995.
In its protest, the protestant states:
By Administrative Message No. 94-0661,...dated June 30,
1994, ABI Brokers
were advised to change the classification for LIMES under
GSP to HS
0805.90.0010, with a FREE duty rate.
Confusion arose because LIMES in the common understanding is
a Citrus Fruit
entered under 0805.30.4000. U.S. Customs advised the ABI
Brokers to correct
the classification according to the Administrated [sic]
Message, thereby creating
a mistake of fact for prior entries. (Emphasis added)
In support of its protest, the protestant cites to C.J. Tower &
Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, C.D.
4327, 366 F.Supp. 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129,
499 F.2d 1277 (1974) and ORR Ruling 75-0026, and states that
"[t]he Customs Officer was not aware of any Headquarter's
Classification Ruling and continued to accept entries under the
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Whether relief may be granted under 19 U.S.C. 1520(c)(1) to
correct an alleged mistake of fact in the classification of
LAW AND ANALYSIS:
Initially we note that this protest was timely filed
pursuant to 19 U.S.C. 1514(c)(2)(B). The date of the decision
protested was April 11, 1995, and the protest was filed on July
3, 1995. In addition, the refusal to reliquidate an entry under
1520(c)(1) is a protestable matter pursuant to 19 U.S.C.
Title 19, United States Code, 1514 (19 U.S.C. 1514) sets
forth the proper procedure for an importer to protest the
classification and appraisal of merchandise when it believes the
Customs Service has misinterpreted the applicable law. A protest
must be filed within ninety days after notice of liquidation or
reliquidation. Otherwise, the tariff treatment of merchandise is
final and conclusive.
Title 19, United States Code, 1520(c)(1) (19 U.S.C.
1520(c)(1)) is an exception to the finality of 1514. Under
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
not an alternative to the relief provided for in the form of
protests under 19 U.S.C. 1514; 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, 10 CIT
505, 508, 643 F.Supp. 623 (1986)).
Essentially the protestant's claim is that out of two
competing HTSUS provisions, the subject limes were classified
under the wrong provision. The protestant claims that the
entries should have been reliquidated because Customs advised ABI
Brokers to correct the classification of Persian limes according
to the Administrative Message, "thereby creating a mistake of
fact for prior entries." The Administrative Message does not
advise brokers to "correct" any classification. The
Administrative Message only advises of statistical changes in the
HTSUS, providing for a further breakout of subheading 0805.90.
Statistical annotations are not included in the legal text of
HTSUS. HTSUS, General Statistical Note 2; Tariff Act of 1930 as
amended by 1204(a) of the Omnibus Trade and Competitiveness Act
of 1988, Pub.L. 100-418, 102 Stat. 1107, 1148 (1988). Therefore,
the statistical annotations have no legal status. Unlike the
legal text of the HTSUS, the statistical annotations are
established by the Secretary of the Treasury, the Secretary of
Commerce, and the United States International Trade Commission,
pursuant to 19
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U.S.C. 1484(f). The Administrative Message and statistical
annotation have no bearing on the classification of the subject
limes, as they did not change the applicable HTSUS provisions.
Therefore, this mistake of fact claim is not supported.
The only other mistake of fact to which the protestant
refers is that a "Customs Officer was not aware of any
Headquarter's Classification Ruling and continued to accept
entries under the former classification." The protestant cites
ORR Ruling 75-0026, dated January 24, 1975, in support of this
allegation. The aforementioned ruling states that although
generally an error in classification is not within the purview of
19 U.S.C. 1520(c)(1), and exception exists and reliquidation is
proper when a Customs officer is not aware of a classification
ruling. The protestant has failed to bring to Customs attention
any classification ruling of which a Customs officer was unaware.
Therefore this mistake of fact claim is not supported.
The courts have consistently taken the position that an
erroneous classification of merchandise is not a clerical error,
mistake of fact, or other inadvertence within the meaning of 19
U.S.C. 1520(c)(1), but is an error in the construction of law.
See, Mattel Inc. v. United States, 377 F.Supp. 955, 72 Cust.Ct.
257, C.D. 4547 (1974); and C.J. Tower & Sons of Buffalo, Inc. v.
United States, 366 F.Supp. 1395, 68 Cust.Ct. 17, C.D. 4327,
aff'd, 499 F.2d 1277, 61 CCPA 90 (1972). Here, the only error
established by the protestant is one involving the classification
of limes, which could only have been corrected by the filing of a
19 U.S.C. 1514 protest within 90 days of the original
liquidation. In support of its protest, the protestant cites to
C.J. Tower & Sons of Buffalo, Inc. In Tower, neither the
District Director of Customs nor the importer were aware of the
nature of the imported merchandise, which would have entitled it
to duty-free treatment, until after the liquidation became final.
The court held that such a lack of knowledge did not amount to an
error in the construction of the law but came within the
statutory language "mistake of fact or other inadvertence."
Degussa Canada Ltd. v. United States, No. 95-109, Slip Op. (CIT,
June 13, 1995) citing C.J. Tower & Sons, 68 Cust.Ct. at 22, 336
F.Supp. at 1399. We find the Tower case inapplicable in this
case because the entry documentation indicates that the
protestant was aware of the specific variety of limes being
Other than an error in the classification of the limes
between the two competing HTSUS provisions, the protestant has
failed to bring to Customs attention any "mistake of fact,
clerical error or other inadvertence" correctable under 19 U.S.C.
1520(c)(1). The CIT has ruled that mere assertions by a
complainant without supporting evidence will not be regarded as
sufficient to overturn a Customs official's decision. Bar Bea
Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983).
Further, upon an assertion that merchandise has been wrongly
classified due to a mistake of fact, "it is incumbent on the
plaintiff to show by sufficient evidence the nature of the
mistake of fact." PPG Industries, Inc. v. United States, 4 CIT
143, 147-148 (1982), citing Hambro Automotive Corp. v. United
States, 81 Cust.Ct. 29, 31, 458 F.Supp. 1220, 1222 (1978) aff'd,
66 CCPA 113, C.A.D. 1231, 603 F.2d 850 (1979). It is
insufficient for the protestant to notify Customs that the
classification was wrong. This does not identify and explain the
correctable error. It fails to demonstrate that the error was
other than a mistake in legal conclusion. See Headquarters
Ruling 223625, dated May 4, 1992. In this case, the protestant
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failed to set forth any correctable error, and no error is
manifest from the record. The classification error was an error
in the construction of a law which could only have been remedied
by the filing of a protest within 90 days of liquidation pursuant
to 19 U.S.C. 1514.
An error in the classification of merchandise is
correctable by the filing of a 19 U.S.C. 1514 protest within 90
days of liquidation; relief is not available under 19 U.S.C.
Accordingly, the protest is denied.
In accordance with 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office no later
than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with this
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to customs personnel via the Customs
Ruling Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
International Trade Compliance