LIQ-9-01-RR:IT:EC 227023 GEV

Port Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202

RE: Application for further review of Protest No. 0901-95-102851; 19 U.S.C. 1520(c)(1); mistake of fact; classification of jewelry; necklaces/neck chains; 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

Dear Sir or Madame:

This is in response to your memorandum dated May 30, 1996, forwarding the above-referenced protest to this office for further review. We have considered the facts and issues raised, and our decision follows.

FACTS:

This protest has been filed against your denial of a request for reliquidation of the subject entries pursuant to 19 U.S.C. 1520(c)(1).

The protestant filed 10 entries from October 27, 1994, through December 15, 1994, covering gold jewelry imported from India. The subject jewelry was classified under subheading 7113.19.2900, Harmonized Tariff Schedule of the United States (HTSUS), as necklaces/neck chains, and subheading 7113.19.5000, HTSUS, which provides for other articles of jewelry made of precious metal. The Special Program Indicator (SPI) "A" preceded subheading 7113.19.2900 on line item 001 of each of the entries. The jewelry was liquidated dutiable under both subheadings at 6.5%. These entries were liquidated as entered from February 10, 1995, through March 24, 1995.

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By letter dated August 9, 1995, the protestant requested reliquidation of these entries on the basis of mistake of fact with respect to the jewelry referenced on line item 001 on each entry. The alleged mistake of fact pertains to the protestant's misreading of Customs Administrative Message 5342071, dated December 8, 1994, to Customs personnel notifying them that on that date President Clinton signed into law the Uruguay Round Agreements Act (the "Act"). It further notified import specialists, entry specialists, and other interested parties such as brokers and importers, that  601 of Title VI, Subtitle A of the Act provided for the renewal of the Generalized System of Preferences (GSP) (which expired at midnight on September 30, 1994), through July 31, 1995, as well as for the refund of all duties paid on GSP-eligible merchandise that was entered while the program lapsed (i.e., the subject jewelry). The protestant specifically focuses on paragraph 6 of Administrative Message 5342071which addresses the use of the SPI "A" for ABI entry summaries to facilitate identification of affected line items. The aforementioned paragraph provides as follows:

"6. Non-ABI filers who did not request a refund by using the Special Program Indicator "A" must request a refund in writing from the District Director of Customs at the port of entry by June 6, 1995."

The protestant read the above paragraph to mean as follows:

"Filers of Non-ABI entries who did indicate a request for refund by the use of the special program indicator "A" need not make a separate for a refund in writing."

The protestant stated that paragraph 6 of Administrative Message 5342071, "led us to believe as fact that filers of Non-ABI entries who did request a refund by using the special program indicator "A" would receive a refund automatically." As a result, the protestant, an ABI-certified filer, did not make a timely written refund request as so directed.

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 September 19, 1995.

The protest at issue was filed on December 16, 1995, attaching the following: supplemental documentation consisting of handwritten "corrected" entries, invoices, certifications from the Indian manufacturer, and air waybills (Exhibit A); and a copy of the protestant's 19 U.S.C.  1520(c) request, dated August 9, 1995, and Customs denial thereof, dated September 19, 1995 (Exhibit B). The protestant states that, "We would like to clarify our 520(c) in regard to [paragraph 6 of Administrative Message 5342071] in that Ameri-Can [the protestant's customshouse broker] is an ABI Certified entry filer and [paragraph 6 of Administrative

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Message 5342071] referred to Non-ABI filers' not, more correctly, to filers of Non-ABI entries." The protestant further states that, "Ameri-Can is an ABI Certified entry filer who, in the case of these specific entries, happened to file Non-ABI entries."

The protestant also cites to paragraph 2 of Customs Administrative Message 4252071, dated September 9, 1994, which provides, in part, that "Non-ABI filers MAY NOT continue to use the SPI A'." The protestant states that, "Customs accepted our entry summaries with the SPI Indicator of A' shown immediately preceding the HS number, reinforcing our belief that, as an ABI Certified filer, we could request the refund by use of the indicator even though the entries were filed Non-ABI."

In support of its position, 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).

ISSUE:

Whether the foregoing allegations amount to a mistake of fact correctable under 19 U.S.C. 1520(c)(1)?

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 September 19, 1995, and the protest was filed on December 16, 1995. In addition, the refusal to reliquidate an entry under  1520(c)(1) is a protestable matter pursuant to 19 U.S.C. 1514(a)(7).

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.

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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 its misreading of paragraph 6 of Administrative Message 5342071 resulted in its failure to follow the refund procedures set forth therein which were necessary for the subject jewelry to receive duty-free treatment attributed to the classification of such merchandise under the GSP. Consequently, the protestant believes the alleged mistake of fact is correctable under 19 U.S.C. 1520(c)(1).

With respect to the protestant's claim, it is readily apparent that it did not meet the requisite criteria for reliquidation under 19 U.S.C.  1520(c)(1) in that there is no mistake of fact manifest from the record or documentary evidence. Neither Administrative Message 4252071 nor 5342071 was materially misleading. Both messages refer to entries, such as the ones under consideration, that are filed Non-ABI simply because there is no way to track these in Customs Automated Commercial System (ACS). With respect to the classification of the subject jewelry under subheading 7113.19.2900, HTSUS, at 6.5% without benefit of GSP, it should be noted that 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 its own failure to follow procedures established in the aforementioned administrative messages in order to obtain duty-free treatment for GSP-eligible merchandise, 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, 889 F.Supp. 1543 (CIT, June 13, 1995) citing C.J. Tower & Sons, 68 Cust.Ct. at 22, 336 F.Supp. at 1399. We find the court's decision in Tower inapplicable in this case because the entry documentation submitted with the protest nonetheless indicates that the protestant was aware of the specific type of jewelry imported. Other than its misreading of Administrative Message 5342071, and the consequent classification of the subject jewelry under subheading 7113.19.2900, HTSUS, at 6.5% without benefit of GSP, 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

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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 has 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, pursuant to T.D. 54848 "occurs when a person knows the true facts of a case but has a mistaken belief of the legal consequences of those facts and acts on that mistaken belief." The error in the construction of law in this and another other such cases can only be remedied by the filing of a protest within 90 days of liquidation pursuant to 19 U.S.C. 1514.

HOLDING:

The allegations of the protestant were 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. 1520(c)(1).

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 channels.

Sincerely,

Director
International Trade Compliance
Division