LIQ-9-01-CO:R:C:E 223630 CB
District Director
U.S. Customs Service
Suite 200
477 Michigan Avenue
Detroit, MI 48266
RE: Application for further review of Protests No. 3801-1-
101850 and 3801-1-102069; mistake of fact correctable under
19 U.S.C. 1520(c)(1); correctable error must be manifest
from the record or established by documentary evidence
Dear Sir:
The above-referenced protests were forwarded to this office
for further review. We have considered the points raised and our
decision follows.
FACTS:
The two protests involve 9 entries of merchandise entered
under subheading 8705.90.0000 of the Harmonized Tariff Schedule
of the United States (HTSUS) at a duty rate of 2.9% ad valorem.
The entries were made between December 13, 1989 and July 3, 1990.
The entries were liquidated between March 23, 1990 and October
19, 1990. According to Protestant, the classification as
originally entered was based upon a Notice of Action issued by
Customs in Buffalo, New York on July 17, 1989.
HQ 087028 was issued on August 13, 1990, classifying the
subject merchandise under subheading 8704.90.0000, HTSUS.
Customs in Buffalo and Detroit subsequently approved some
protests allowing for classification under subheading
8704.90.0000, HTSUS. You state that all of the protests that
were approved were filed timely and approved after HQ 087028 was
issued. You also state that, at the time these entries were
filed, it was Customs position both in Buffalo and Detroit that
the merchandise was correctly classifiable under subheading
8705.90.0000, HTSUS.
After 90 days from the dates of liquidation, but within one
year of such dates, Protestant filed requests for reliquidation
under 19 U.S.C. 1520(c)(1), asserting that errors correctable
under the statute had occurred causing misclassification of the -2-
merchandise. The 1520(c)(1) requests respecting the above
entries were denied on the ground that the misclassification was
a mistake of 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).
ISSUE:
Whether liquidation of the subject entries was a mistake 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
application for further review of these protests are proper under
19 CFR 174.24(a) or (c).
Section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514
(1982)), 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 appplicable
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. 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.
Section 520, Tariff Act of 1930, as amended (19 U.S.C. 1520
(c)(1)), is an exception to the finality of 1514. An entry may
be reliquidated 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. 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). 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.
-3-
The Customs Service has previously ruled that certain
classification errors may be corrected under 1520(c)(1). HQ
Ruling 75-0026, issued January 24, 1975, indicates that
reliquidation is proper when a Customs officer is not aware of a
classification ruling. However, the ruling goes on to state that
if an import specialist takes note of a Headquarters ruling, and
decides it is not applicable to the merchandise, that decision is
an error in the construction of a law, excluded from relief under
section 520(c)(1). In the instant case, the record indicates
that the import specialist was aware of the classification ruling
subsequent to his reporting the entries for classification but
erroneously believed that it did not apply to the subject entries
because the entries were filed prior to the issuance of the
ruling. Although the regulations provide that a classification
ruling is applicable to unliquidated entries (19 CFR 177.9(a)),
the import specialist's incorrect reading of the regulations is a
mistake of law not correctable under 19
U.S.C. 1520(c)(1).
HOLDING:
A Customs officer's belief that a classification ruling is
inapplicable to an entry is a mistake of law not correctable
under 19 U.S.C. 1520(c)(1). Therefore, you should deny these
protests in full.
A copy of this decision should be attached to the CF 19,
Notice of Action, and sent to protestant to satisfy the notice
requirement of section 174.30(a), Customs Regulations.
Sincerely,
John Durant, Director
Commercial Rulings Division