LIQ-4-02-CO:R:C:E 224210 CB
Assistant District Director
Commercial Operations Division
U.S. Customs Service
477 Michigan Avenue
Detroit, MI 48266
RE: Protest and Application for Further Review No. 3801-92-
100200; 19 U.S.C. 1520(c); 19 U.S.C. 1671f(b)(2);
19 U.S.C. 1671e(a)(3); refund of countervailing duties
together with interest; modification of reliquidation
Dear Sir:
The above-referenced protest and application for further
review was forwarded to this office. We have considered the
points raised and our decision follows.
FACTS:
The subject entries were liquidated during the period
between July 24, 1987 and June 2, 1989. The entries were
liquidated with a refund of the countervailing duties deposited
but without a refund of the interest due. On March 4, 1991,
protestant filed a request for the refund of the interest due on
the deposited estimated countervailing duties. The request was
denied on October 22, 1991, and the subject protest was filed on
January 21, 1992.
It is protestant's contention that the one year limitation
statutorily provided for under 19 U.S.C. 1520(c) does not apply
because it is not requesting a reliquidation of the subject
entries. Protestant alleges that it is only requesting a
modification of the original liquidation with issuance of refund
of interest as required under 19 U.S.C. 1671(b)(2).
ISSUE:
Whether protestant is entitled to the requested relief?
LAW AND ANALYSIS:
The Trade Agreements Act of 1979 provided, through an
amendment to the Tariff Act of 1930 by the addition of a new
section 707, for the refund of excess estimated countervailing
duties, together with interest. This provision is codified as
section 671f(b)(2) of the Tariff Act of 1930, as amended (19
U.S.C. 1671f(b)(2)). Any adjustment is to be made at the time
of liquidation of the entries.
Liquidation of an entry of merchandise constitutes the final
computation by Customs of all duties accruing on that entry. See
generally, Ambassador Division of Florsheim Shoes v. United
States, 748 F.2d 1562 (Fed. Cir. 1984); Nike, Inc. v. Rubber
Manufacturers Association, Inc., 509 F.Supp. 912 (S.D.N.Y. 1981);
Scherk Importing Co. v. United States, 17 CCPA 135, T.D. 43470
(1929). There are only three statutory vehicles that can be used
by Customs to liquidate or reliquidate an entry. Under section
501 of the Tariff Act of 1930, as amended (19 U.S.C. 1501), any
liquidation or reliquidation may be reliquidated in any respect
by the appropriate customs officer on his own initiative within
ninety days from the date of liquidation.
Section 514 of the Tariff Act of 1930, as amended (19 U.S.C.
1514), is the second vehicle for reliquidation. It sets forth
the proper procedure for an importer to protest the appraised
value, classification and amount of duties imposed on merchandise
when the importer believes Customs has misinterpreted the
applicable law. The legal question of whether the liquidation
was erroneous does not affect the finality of liquidation. See
Gerry Schmitt & Co. v. United States, 71 Cust. Ct. 194, 371 F.
Supp. 1079, (1973). After 90 days, the liquidation of the
entries becomes final and conclusive unless a timely protest is
filed.
The third vehicle for reliquidation is provided for in
section 520(c)(1) of the Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1)). Section 1520(c)(1) provides that Customs
may correct certain errors, if adverse to the importer, within
one year of the date of liquidation. An entry may be
reliquidated in order to correct a clerical error, mistake of
fact, or inadvertence not amounting to an error in the
construction of a law. See 19 U.S.C. 1520(c)(1); 19 CFR 173.4.
Section 520(c) is not an alternative to the normal liquidation-
protest method of obtaining review, but rather affords limited
relief where an unnoticed or unintentional error has been
committed. See Computime, Inc. v. United States, 9 Ct. Int'l
Trade 553, 554, 622 F. Supp. 1083, 1085 (1985); see also
Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec.
No. 29, p. 38, Slip Op. No. 89-89 (CIT June 27, 1989).
As stated by the Court of International Trade in PPG
Industries, Inc. v. United States, 7 Ct. Int'l Trade 118, 124
(1984), three conditions must be satisfied before an entry can be
reliquidated to correct a mistake of fact:
(1) a mistake of fact must exist;
(2) the mistake must be manifest from the record or
established by documentary evidence; and
(3) the mistake of fact must be brought to the attention of
the Customs Service within the time requirements of the
statute.
In the instant protest, protestant has not satisfied any of the
requirements. There is nothing in the record to indicate that
failure to include the interest due is a mistake of fact. There
is a legal presumption that all Customs officers are
knowledgeable of all pertinent statutes regarding the importation
of goods. Protestant has failed to provide any evidence to rebut
this presumption. Thus, we have to conclude that when the
subject entries were liquidated, the Customs officer was aware of
19 U.S.C. 1671f(b)(2) and determined that said statute did not
apply to the subject entries. Additionally, protestant has
failed the third condition set forth in PPG Industries, i.e. the
alleged mistake of fact must be brought to Customs' attention
within the statutory time requirements.
Protestant alleges that it is not seeking a reliquidation
but rather, a modification of the original liquidation; thus, the
statutory time limits for reliquidation are inapplicable. A
liquidation or modification by any other name is still a
reliquidation. Reliquidations are statutorily limited to 19
U.S.C. 1501, 1514, 1520 and 1521. Only 1514 or 1520 could
apply to the subject protest. Since interest is due incident to
liquidation, that liquidation is the event triggering the period
for protest. See New Zealand Lamb Co., Inc., v. United States,
27 Cust. Bull. & Dec. 3, 5 Slip Op. No. 92-218 (December 8,
1992). It is true that the subject entries were erroneously
liquidated; however, protestant cannot recover because a timely
protest was not filed. There is no statutory authority under
which to reliquidate the subject entries and 19 U.S.C.
1520(c)(1) does not apply to this protest because, even if it
had been a timely protest, the error in this case was in the
construction of a law.
HOLDING:
There is no statutory authority for a waiver of the 90-day
limit provided for under 19 U.S.C. 1514 for liquidations.
Additionally, Customs failure to refund any excess duties
deposited together with interest is a mistake of law not
correctable under 19 U.S.C. 1520(c). Therefore, this protest
should be DISALLOWED.
A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.
Sincerely,
John Durant, Director