VAL RR:IT:VA 546410 CRS
Port Director
Los Angeles
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731
RE: AFR of Protest No. 2704-96-101299; 19 U.S.C. 1514(a)(7); 19
U.S.C. 1520(c)(1); clerical error, mistake of fact or other
inadvertence; mistake of law; transaction value; sale for
exportation
Dear Madam:
This is in reply to your memorandum of June 15, 1996, under
cover of which you forwarded an application for further review
(AFR) of the above referenced protest, filed by counsel on behalf
of Wesoc, Inc. The bracketed portions of this decision will be
deleted from any published version. We regret the delay in
responding.
FACTS:
Wesoc, the protestant and importer of record, challenges
Customs' denial of a petition, filed pursuant to section 520(c) of
the Tariff Act of 1930, as amended, in regard to the appraisement
of two entries of men's and boys' 100 percent nylon sateen woven
shorts imported from Taiwan. The merchandise was appraised on the
basis of transaction value. Wesoc contends that while transaction
value is the appropriate basis of appraisement, due to an
inadvertence, incorrect documentation was submitted with the entry,
thereby resulting in an incorrect determination of transaction
value. The petition was denied on the ground that the error
involved a construction of law rather than a clerical error,
mistake of fact, or other inadvertence.
The invoices submitted at the time of entry reflect a sale
between Taiwan Sports and Trading and Mitre Sports International,
a division of Genesco, Inc., Nashville, Tennessee. Wesoc alleges
that this documentation was submitted in error and that the
appropriate sale for purposes of determining transaction value
occurred between itself and Supreme Industrial Co., Ltd., of
Taipei. In its petition asserting a mistake of fact, filed
November 16, 1995, counsel provided the following explanation of
how the alleged error arose.
1. Mitre Sports International of Nashville Tennessee
placed a purchase order with Wesoc, Inc. of Saratoga,
California, the importer of record, for the shorts in
issue. Because Wesoc did not have sufficient financial
resources to pay the manufacturer and then wait for
reimbursement from Mitre, Wesoc requested that Mitre
Sports open a domestic letter of credit to Wesoc, which
Wesoc could then transfer to Supreme Industrial Co., the
manufacturer of the apparel in issue. Mitre declined to
do so, because it was the policy of Mitre Sports not to
issue letters of credit to any companies located in the
United States. Mitre would issue letters of credit only
to companies located in foreign locations.
2. To ensure that the purchase order would be carried
out, Mitre agreed to open a letter of credit directly to
Taiwan Sports and Trading located in Taiwan, the buying
agent for Wesoc. The sole purpose of this was to provide
a means of financing the purchase order.
3. Taiwan Sports and Trading proceeded to have the
shorts manufactured by Supreme Industrial in Taiwan.
4. After the shorts were manufactured, Taiwan Sports and
Supreme Industrial issued an invoice for the shorts,
showing Supreme Industrial as the seller and Wesoc as the
U.S. buyer. These invoices are set forth as Enclosures
A-3 and B-3. In order for Taiwan Sports to receive
payment from the corresponding bank and forward funds to
Supreme Industrial, Taiwan Sports was required by the
corresponding bank to issue a commercial invoice to the
issuer of the letter of credit, which was Mitre Sports.
Copies of these invoices are attached as Enclosures A-2
and B-2. This was solely done to effectuate payment and
does not reflect the sales transaction involved, which
covers a sale from Supreme Industrial of Taiwan to Wesoc,
Inc., who thereafter resold the goods to Mitre Sports.
Based upon the invoices set forth as Enclosures A-2 and
B-2, payment was made to the corresponding bank.
5. Upon receipt of the goods in the U.S. and without the
knowledge of Wesoc, the customs house broker involved
inadvertently submitted the invoices attached as
Enclosures A-2 and B-2 to Customs, which do not reflect
the sales and the prices paid or payable. Instead, the
broker should have submitted the invoices attached as
Enclosures A-3 and B-3. These invoices reflect the
transactions which cause the goods to be exported and not
the invoices set forth in Enclosures A-2 and B-2.
In addition to the so-called "correct" invoices, the
documentation submitted in support of the AFR includes purchase
orders from Mitre to Wesoc, purchase orders from Wesoc to Supreme
Industrial, visaed invoices bearing the stamp of the Taiwan Textile
Federation, a letter of credit issued by the [************] Bank
(FAB) of Nashville, Tennessee, payment advices from the Tung-Taipei
branch of the [****************] Bank relating to payments made to
Supreme Industrial under letters of credit issued by [***********],
order confirmations issued by Supreme Industrial to Wesoc, bills of
lading, a buying agency agreement, dated May 25, 1994, between
Wesoc and Taiwan Sports, Wesoc's monthly bank statements for
December 1994 and January 1995 from [**********] Bank, N.A., and
related correspondence. According to the visaed invoices, Supreme
Industrial was only a seller of the shorts. The actual
manufacturer was I-Ton Industrial Co., Ltd., of Tien-Wei Town,
Chung Hwa Hsien, Taiwan.
The two commercial invoices originally submitted with the
entries - invoice no. 95006 dated December 1, 1994, and invoice no.
94068 dated December 21, 1994, show Taiwan Sports as the seller of
the merchandise and Mitre as the buyer. Invoice no. 95006
describes the merchandise as consisting of 600 dozen men's 100%
nylon sateen woven long length tournament style shorts and 155
dozen similar boy's shorts as order by Mitre in P.O. nos. 55-043714
and 55-043723. The merchandise covered by invoice no. 94068
consists of 915 dozen, men's 100% nylon, "International" style
shorts as order by Mitre in their P.O. no. 55-42859. The invoices
are for CIF amounts of, respectively, [$********** and
$**********]. Both invoices bear a typewritten notation which
states that Wesoc is the importer of record. These notations were
made in a different typeface than that which was used to prepare
the invoices themselves. The typeface used resembles that used by
the broker in preparing the Customs Form (CF) 7501.
Both invoices from Taiwan Sports to Mitre reference
irrevocable letter of credit (L/C) no. 1032233, issued by FAB on
behalf of the Mitre Division of Genesco in favor of Taiwan Sports.
The face amount of the L/C is [$********]. The L/C references P.O.
nos. 55-042859, 55-043714 and 55-043723. The amounts referenced
against each purchase order number on the L/C correspond to the
amounts on the commercial invoices originally submitted with the
protested entries.
The commercial invoices from Supreme Industrial to Wesoc - the
so-called "correct invoices" bear the same date, invoice numbers,
quantities, purchase order references and descriptions as do the
invoices from Taiwan Sports but are for CIF amounts of [$********
and $********]. The invoices state that the merchandise is for
the account and risk of Taiwan Sports, buying agent for Wesoc. The
invoices do not make any reference to the purchase orders issued by
Wesoc to Supreme Industrial, i.e., P.O. no. 960M dated August 25,
1994 and P.O. no. 962M dated September 30, 1994. The invoices also
reference different L/C numbers. In this instance, L/C nos.
AQQM650714 and AQQM650716 issued by the Tung-Taipei branch of the
[*************] Bank, Ltd. in favor of Supreme Industrial are
referenced. The amount on the letters of credit issued by Tung-Taipei branch of [**********************] Bank correspond to the
amounts shown on Supreme Industrial's commercial invoices.
The visaed invoices identify Supreme Industrial as being the
seller of the shorts, and the Mitre Division of Genesco as being
both the purchaser and consignee of the goods. The CIF prices on
the visaed invoices match those on the commercial invoices from
Supreme Industrial. The purchase order numbers on the visaed
invoices match the purchase orders issued by Wesoc. The
manufacturer of the goods is identified as I-Ton Industrial Co.,
Ltd. Wesoc is not mentioned on the visaed invoices.
In regard to the circumstances under which the L/C was opened
by Mitre in favor of Taiwan Sports, Ms. Kim Jackson of
International Sourcing and Development, a division of Wesoc, has
advised as follows:
We do not have any document in writing stating Mitre's
refusal to open the L/C to Wesoc. All the discussions
concerning this topic were oral discussions and
agreements. However, as you can see, from the letter of
credit, it was opened thru (sic) our agent in Taiwan and
had previously been opened directly to us.
Counsel has advised that while Mitre had previously opened L/Cs in
favor of Wesoc and other U.S. entities, it changed its policy in
1994 due to a management change. Subsequently, the original policy
allowing the opening of L/Cs to U.S. entities was reinstated.
The terms of the buying agency agreement provide that Taiwan
Sports, identified as the agent, will perform various duties on
behalf of Wesoc, including: obtaining samples, price and delivery
information; placing orders; inspecting merchandise; and
representing Wesoc in connection with any claims for defective
goods. As compensation for these services, Wesoc agreed to pay
Taiwan Sports a commission of four percent of the supplier's net
invoice price. There is no indication that Taiwan Sports was paid
a commission in respect of the instant transaction.
Wesoc's bank statements show that Wesoc's account was credited
in the amount of [$***********], on December 15, 1994, and again on
January 4, 1995, in the amount of [$***********]. When adjusted
for freight and insurance, bank fees and the four percent
commission paid to Taiwan Sports per the buying agency agreement
with Wesoc, these amounts correspond to the difference between the
amounts shown on the two sets of invoices.
The imported merchandise was appraised under the transaction
value method based on the price actually paid or payable by Mitre
to Taiwan Sports. The entries in question were liquidated on April
21, 1995 and April 28, 1995. The section 520(c)(1) petition was
filed on November 16, 1995 and was denied on January 22, 1996. The
section 514 protest was filed on April 17, 1996.
ISSUE:
The issue presented is whether there was a clerical error,
mistake of fact or other inadvertence such that relief may be
granted under 19 U.S.C. 1520(c)(1).
LAW AND ANALYSIS:
Initially, we note that protestant's request for reliquidation
under 19 U.S.C. 1520(c)(1) and its instant protest filed under 19
U.S.C. 1514(a)(7) were timely filed. The issue protested is a
protestable issue (19 U.S.C. 1514(a)(7)). In addition,
protestant's application for further review of this protest is
proper under 19 C.F.R. 174.24(a) or (c).
The commercial invoices of Taiwan Sports recited that the
goods were for the risk and account of Genesco/Mitre for each
entry. The invoices contained the following information:
Entry xxx-xxxx186-3:
Taiwan Sports invoice 95006 of December 21, 1994
For the account and risk of Genesco/Mitre
Price: [$******] CIF Los Angeles
Date of sale: September 21, 1994
Place of sale: Taiwan
Referred to purchase orders 55-043714 and 55-043723
Payment: Letter of credit 1032233 of November 23, 1994
Taiwan Textile Federation Textile Export Visa Invoice No. 4TW159505
Seller: Supreme Industrial Co.
Purchaser and consigner: Genesco/Mitre
Price: [$******] CIF Los Angeles
Referred to purchase orders 55-043714 and 55-043723
Packing list based on Taiwan Sports invoice 95006 of December 21,
1994
Recited that the goods were for the account and risk of
Genesco/Mitre
Payment: Letter of credit 1032233 of November 23, 1994
Entry xxx-xxxx173-1:
Taiwan Sports invoice 4894 of December 8, 1994 to Mitre
Price: [$******] CIF Los Angeles
Date of sale: August 23, 1994
Place of sale: U.S.A.
Referenced purchase order 55-42859
Payment: Letter of credit 1032233 of November 23, 1994.
Entry xxx-xxxx173-1 was liquidated on April 28, 1995 and entry
xxx-xxxx186-3 was liquidated on April 21, 1995.
The petition for reliquidation asserting a mistake of fact was
filed November 27, 1995. The petition asserted that Wesoc's agent,
McClary & Swift Inc., filed the entries using incorrect invoices
that failed to show the sale that allegedly caused the merchandise
to be sold for exportation to the United States. Wesoc asserted
that its agent acted without Wesoc's knowledge. Wesoc has not
explained how its agent came to possess the so-called incorrect
invoices. Wesoc has not identified its employees who were involved
in the two importations and has not explained how the entries could
have been made without its knowledge until November 16, 1995. In
addition, we note that for some unexplained reason, Wesoc's counsel
addressed the petition to the port director at Portland, Oregon
rather than to the port director as Los Angeles where the two
entries were made.
Wesoc submitted additional information to Customs following
the receipt of the petition by the port director, Los Angeles, on
November 27, 1995, in a series of letters dated December 14, 1995;
December 20, 1995 and January 16, 1996. Wesoc claimed that the
entry invoices incorrectly showed that the importation was the
result of a sale from the foreign supplier to Genesco/Mitre. Wesoc
claimed that the correct invoices showed that the sale for
importation was a sale from the foreign supplier to Wesoc. The
additional information submitted with respect to the two entries
consisted of the following:
Entry xxx-xxxx173-1:
Genesco/Mitre purchase order 55-042859 of August 24, 1994
To Wesoc as vendor and agent
Price: [$******]
Wesoc purchase order 960M dated August 25, 1994 to Supreme
Industrial Co.
States that goods are for Mitre
Refers to purchase order 55-042859
Included copy of purchase order Price [$******]
Terms C & F San Francisco
Supreme Industrial Co. Proforma invoice 94068 of August 25, 1994.
Signed by Wesoc and Supreme
Refers to purchase order 55-042859
Price: [$******] FOB Taiwan
Taiwan Sports order confirmation to Mitre 960 dated August 25, 1994
Refers to purchase order 55-42859
Price: [$******]
Supreme Industrial Co. invoice 94068 of December 1, 1994
Recites goods are for account and risk of Taiwan Sports, buying
agent for Wesoc
Signed by Taiwan Sports and Supreme Industrial
Price [$******] FOB Taiwan and [$******] CIF Los Angeles
Refers to purchase order 55-042859
Date of sale: August 25, 1994
Place of sale: Taiwan
Payment: Letter of credit AQQM650714 of December 7, 1994
Taiwan Sports invoice 4894 of December 8, 1994 to Mitre
Refers to purchase order 55-42859
Price: [******] CIF Los Angeles
Date of sale: August 23, 1994
Place of sale: USA
This invoice was filed with entry xxx-xxxx173-1
The copy filed in response to the Customs request for information
of December 7, 1995 contains a handwritten notation of [$******]
which corresponds to the amount shown on the Genesco/Mitre purchase
order 55-042859 of August 24, 1994.
Entry xxx-xxxx186-1:
Genesco/Mitre purchase order 55-043714 of September 17, 1994
to Wesoc as vendor
Price: [$******]
Genesco/Mitre purchase order 55-043723 of September 17, 1994
To Wesoc as vendor
Price: [$******]
Supreme Industrial Co. proforma invoice 95006 of September 21, 1994
to Wesoc
Refers to purchase order 55-43714 price [$******] FOB, Taiwan
Refers to purchase order 55-43723 price [$******] FOB, Taiwan
Signed by Wesoc and Supreme Industrial Co.
Taiwan Sports commercial invoice 95006 of December 21, 1994
For account and risk of Mitre.
Price: purchase order 55-043714 [$******]
purchase order 55-043723 [$*****]
Date of sale: September 21, 1994 [$******] CIF Los Angeles
Place of sale: Taiwan
Payment: Letter of credit 1032233 of November 23, 1994
Wesoc purchase order 962M of September 30, 1994
To Supreme Industrial
Referenced purchase orders 55-43714 and 55-43723
Included copies of both purchase orders
Price 55-43714 [$******]
55-43723 [$*****]
Taiwan Sports order confirmation to Mitre
Invoice 962 of September 30, 1994
Terms: not stated
Price: purchase order 55-43714 [$******]
purchase order 55-43723 [$*****]
[$******]
Supreme Industrial Co. invoice 95006 of December 21, 1994
For account and risk of Taiwan Sports, buying agent for Wesoc
Signed by Supreme Industrial Co. and Taiwan Sports
Price: purchase order 55-043714 [$*******] FOB Taiwan
[$******] CIF Los Angeles
purchase order 55-043723 [$*****] FOB Taiwan
[$*****] CIF Los Angeles
Payment: Letter of credit AQQM650716 of December 7, 1994
Date of sale: September 21, 1994
Place of sale: Taiwan
This invoice was filed with entry xxx-xxxx186-1.
The petitioner also provided document copies said to be a
portion of Wesoc's bank statements with respect to the
transactions. With respect to entry xxx-xxxx173-1, Wesoc received
a wire transfer payment in the amount of [$*********] on December
15, 1994. That amount, with adjustments for commissions, freight,
insurance and bank fees, is said to be the difference between the
entry invoice value of [$********] and the asserted correct value
of [$********]. With respect to entry xxx-xxxx186-3, Wesoc
received a wire transfer payment of [$11,738.81] on January 4,
1995. That amount, with adjustments for commissions, freight,
insurance and bank fees, is said to be the difference between the
entry invoice value of [$*********] and the asserted correct value
of [$*******].
In response to a request for information, Wesoc also provided
a copy of the Genesco/Mitre letter of credit and information on the
[**********] Bank letters of credit. The relevant information on
those letters of credit is as follows:
Genesco letter of credit 1032233 of November 23, 1994.
Beneficiary: Taiwan Sports
Refers to purchase orders 55-042859 [$*******]
55-043714 [$******] and 55-043723 [$******]
Requires inspection confirmations from both Mitre and Wesoc
The letters of credit issued by the [*************] Bank,
AQQM650716 and AQQM650714, both issued on December 7, 1994, were
not submitted; however, a record of their negotiation was provided.
Letter of credit AQQM650716 was in the amount of [$********] to the
benefit of Supreme Industrial Co. and is related to entry xxx-xxxx173-1. Letter of credit AQQM650714 was in the amount of
[$********] to the benefit of Supreme Industrial Co. and is related
to entry xxx-xxxx186-3.
Based on the documentation submitted at the time of entry
there was a sale between Taiwan Sports and Mitre/Genesco. The
documents indicate that the sale between Taiwan Sports and Genesco
occurred on August 23, 1994 with respect to entry xxx-xxxx 173-1
and on September 21, 1994, with respect to entry xxx-xxxx 186-3.
The imported merchandise was appraised on the basis of this
documentation. However, the petitioner contends there was a sale
between Supreme Industrial and Wesoc. Based on the documentation
submitted in support of the section 520(c)(1) petition, the sale
between Supreme Industrial and Wesoc occurred on August 25, 1994
with respect to entry xxx-xxxx 173-1, and on September 21, 1994,
with respect to entry xxx-xxxx 186-1. In regard to the role of
Taiwan Sports, we note that while the petitioner submitted a copy
of a buying agency agreement between Wesoc and Taiwan Sports, no
evidence has been presented to show that Taiwan Sports acted as a
bona fide buying agent in the transactions at issue rather than as
a seller in its own right.
From the value perspective, the issue is whether the imported
merchandise was correctly appraised under transaction value on the
basis of the sale between Taiwan Sports and Mitre, as portrayed by
the original entry documentation, or whether the appraised value of
the merchandise should be based on the "correct" invoices which
purport to show a sale for exportation to the United States between
Supreme Industrial and Wesoc. That issue involves an
interpretation of the valuation laws.
As you know, merchandise imported into the United States is
appraised in accordance with section 402 of the Tariff Act of 1930,
as amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C.
1401a). The primary method of appraisement is transaction value,
which is defined as the "price actually paid or payable for
merchandise when sold for exportation to the United States," plus
certain enumerated additions thereto. 19 U.S.C. 1401a(b)(1).
In order for the imported merchandise to be appraised under
transaction value on the basis of the "sale" between Supreme
Industrial and Wesoc, it would first have to be shown that that
transaction was indeed a bona fide sale. For Customs purposes, the
term "sale" is defined as the transfer of property from one party to
another for a consideration. J.L. Wood v. U.S., 62 CCPA 25, 33,
C.A.D. 1139, 505 F.2d 1400, 1406 (1974). In determining whether a
bona fide sale has occurred between a potential buyer and seller of
imported merchandise, no single factor is determinative. Customs
reviews all the facts and circumstances present and makes each
determination on a case-by-case basis.
Several factors may indicate the existence of a bona fide sale.
In making its determination, Customs considers whether the potential
buyer has assumed the risk of loss and acquired title to the
imported merchandise. In addition, Customs may examine whether the
potential buyer paid for the goods, and whether, in general, the
roles of the parties and the circumstances of the transaction
indicate that the parties are functioning as buyer and seller.
E.g., Headquarters Ruling Letter (HRL) 545709, dated May 12, 1995,
HRL 545474, dated August 25, 1995. In the instant case, the
evidence submitted supports the existence of a bona fide sale
between Mitre and Taiwan Sports. Mitre paid for the imported
merchandise by opening a letter of credit in favor of Taiwan Sports.
The L/C reflects Mitre's purchase order numbers. The purchase order
numbers and the amounts shown on the L/C correspond with the
purchase order numbers and the amounts on the commercial invoices
from Taiwan Sports. Under the prevailing terms of sale - CIF Los
Angeles, Mitre had risk of loss for the goods from the time they
passed the ship's rail at the port of shipment in Taiwan.
International Chamber of Commerce, Incoterms 1990 at 52-53.
In contrast, we find that there is insufficient evidence to
indicate that Wesoc and Supreme Industrial functioned as buyer and
seller. Wesoc contends that it entered into a bona fide sale with
Supreme Industrial. No evidence was presented to support this
claim at the time of entry. In the context of the section
520(c)(1) petition, counsel for Wesoc has submitted, inter alia, as
evidence of a bona fide sale between Wesoc and Supreme Industrial,
the fact that certain amounts deposited in Wesoc's bank account by
Taiwan Sports in December 1994 and January 1995, after it had paid
Supreme Industrial, equal the difference between the amounts shown
on the commercial invoices originally submitted and the "correct"
invoices submitted with the section 1520(c)(1) petition. We find
this evidence to be unpersuasive in regard to whether Wesoc
functioned as a buyer. Furthermore, although there was a buying
agency agreement between Taiwan Sports and Wesoc, the evidence is
insufficient to show that Taiwan Sports was acting as a bona fide
buying agent on behalf of Wesoc. Indeed, the documentation
submitted at the time of entry shows the just the opposite, viz.
that Taiwan Sports, rather than acting on behalf of a principal in
the instant transaction, was in fact a seller of goods in its own
right.
Even if it were determined that there was a bona fide sale
between Supreme Industrial and Wesco, it would still have to be
shown the sale was a sale for exportation to the United States in
order for it to form the basis of transaction value,. In Nissho
Iwai American Corp. v. United States, 982 F.2d 505 (Fed. Cir.
1992), the Court of Appeals for the Federal Circuit reviewed the
standard for determining transaction value when there is more than
one sale which may be considered a sale for exportation to the
United States. In so doing, the court reaffirmed the principle of
a prior case, E.C. McAfee Co. v. United States, 842 F.2d 314, 6
Fed. Cir. (T) 92 (Fed. Cir. 1988), i.e., that the manufacturer's
price, rather than the middleman's price, is valid so long as the
transaction between the manufacturer and the middleman falls within
the statutory provision for valuation. Nissho Iwai, 982 F.2d at
511. In reaffirming the McAfee standard the court stated that in
a three-tiered distribution system:
The manufacturer's price constitutes a viable transaction
value when the goods are clearly destined for export to
the United States and when the manufacturer and the
middleman deal with each other at arm's length, in the
absence of any non-market influences that affect the
legitimacy of the sales price. As the government itself
recognizes, that determination can only be made on a
case-by-case basis.
Id. at 509. See also, Synergy Sport International, Ltd. v. United
States, 17 CIT 18, Slip Op. 93-5 (Ct. Int'l. Trade January 12,
1993).
In the instant case, the imported merchandise was appraised
under transaction value based on the sale between Taiwan Sports and
Mitre in accordance with the invoices and other documentation
originally submitted with the entries. This documentation supports
the finding that the Taiwan Sports-Mitre sale was a bona fide sale
for exportation to the United States for purposes of determining
transaction value. However, according to the documentation
submitted in support of the section 1520(c)(1) petition there was
also a sale between Supreme Industrial and Wesoc. As noted above,
even if it were determined that this was a bona fide sale, it would
still have to be shown that this sale constituted a viable
transaction value in accordance with Nissho. On the basis of the
information presented there is insufficient evidence to support
such a finding. Moreover, this is a legal issue that requires an
interpretation of the valuation laws.
Consequently, the petitioner has not shown: (1) that there
was a bona fide sale between Wesoc and Supreme Industrial; (2)
that, if so, this constituted a sale for exportation to the United
States in accordance with Nissho; nor (3) that the port's decision
to base transaction value on the sale between Taiwan Sports and
Mitre, as reflected, in the entry documentation, was incorrect.
More important, the petitioner has not shown by documentary
evidence how the alleged error by the unidentified broker occurred.
The petitioner has not shown how it remained unaware of its agent's
alleged mistakes. Customs is aware that importers generally
require copies of entries before paying the charges billed by the
broker.
In order to show the occurrence of a mistake of fact
correctable under 19 U.S.C. 1520(c)(1), the persons who made the
mistake need to be identified. The trial court, in Aviall of
Texas, Inc. v. United States, 861 F. Supp. 100, 18 CIT 727, 734-735
(1994) aff'd 70 F.3d 1248 (Fed. Cir. 1995), found that:
In the statement of material facts, the admissions of
Aviall's broker disclose that the failure to file a new
yearly blanket certification was due to the fact that the
broker "forgot" to renew the blanket certification for
the period encompassing these entries.
That finding was also important in the case of Executone
Information Systems v. United States, 96 F.3d. 1383 (Fed. Cir.,
1996). In Executone, the court held that an importer must show
that its failure to submit documentation on a timely basis, rather
than merely showing it failed to submit the documentation at 96
F.3d 1389. The court noted, at the same page, that with regard to
substantiation, the inadvertence or mistake which caused the
failure to file must either be manifest from the record or it must
be established by documentary evidence. The statement of counsel
that due to an inadvertence the incorrect invoice was submitted to
Customs does not meet that standard. Bar Bea Truck Leasing Co. v.
United States, 5 CIT 124, 126 (1983).
In ITT Corp. v. United States, 24 F. 3d. 1384 (Fed. Cir.
1994), the court noted by documentary evidence and testimony at
trial the plaintiff established that the importer's agent used
records applicable to different parts than the parts at issue.
Secondly, it is not clear that it was incorrect to base
transaction value on sale between Taiwan Sports sale and
Genesco/Mitre, or if incorrect, that the mistake was due to an
inadvertence not amounting to an error in the construction of a
law. Moreover, the evidence shows that the Genesco/Mitre purchase
orders were for a substantially higher value than the entered
value. Those purchase orders appear to have been used to identify
the goods in respect of both the original and the "corrected"
invoices. Further, the copies of the entry invoices that were
provided by the protestant in conjunction with the reliquidation
petition contain handwritten notations that match the Genesco/Mitre
P.O. values. The Customs field office confirmed that the notations
were not made by a Customs officer. The person who made the
notation had to be aware of the purchase order. However, there is
no explanation why that higher price was not used. An
investigation would appear to be justified.
The evidence simply does not establish that the individuals
responsible were unaware of the details of the two transactions or,
if they were aware, that they determined that the invoice used
represented the sale to the United States. Hambro Automotive Corp.
v. United States, 66 CCPA 113, 603 F. 2d. 850 (1979). The evidence
does not explain how Wesoc remained unaware of the alleged mistaken
acts or omissions of its agent. C.J. Tower & Sons of Buffalo, Inc.
v. United States, 68 Cust. Ct. 17 22-23 (1972) aff'd 61 CCPA 90
(1974). In Taban Co. v. United States, No. 97-27, slip op. at 58-59 (Ct. Int'l Trade February 25, 1997), and Zaki Corp. v. United
States, No. 97-30, slip op. at 98-99 (Ct. Int'l Trade March 14,
1997), there was sufficient evidence to establish plaintiffs's
claims of mistake of fact. Here there is none.
HOLDING:
In conformity with the foregoing, the evidence does not show
that there was a clerical error, mistake of fact or other
inadvertence such that the refusal to reliquidate was improper.
Accordingly, the protest is denied.
In accordance with section 3A(11)(b), Customs Directive 099
3550-065, of August 4, 1993, this decision should be mailed by your
office to the protestant no later than sixty days from the date of
this letter. Any reliquidation of the entry in accordance with the
decision must be accomplished prior to the mailing of 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 Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
Acting Director
International Trade Compliance Division