HQ W548302
JUL 15 2004
RR:IT:VA W548302er
Mr. Eugenio Garza, Jr.
Port Director Lincoln/Juarez Bridge #2
Admin Building 2
Laredo, TX 78040
RE: Application for Further Review of Protest 2304-99-10094.
Dear Sir:
This is in response to the above-referenced application for further review of protest filed on March 17, 1999, and received by this office on March 25, 2003. Broker, Daniel B. Hastings, Inc., submitted the application on behalf of the importer, Biltwell Company, Inc. ("Biltwell").
FACTS:
The merchandise consists of six entries of men's wool suits and jackets. The entries were made on various dates ranging between February and March 1998. The entries were liquidated between December 1998 and January 1999. Computed value was the means of appraisement (19 U.S.C. 1401a(e)).
The importer protests six entries of garments consisting of men's suits and jackets claiming that additional duties and merchandise processing fees were paid in amounts in excess of what was actually due. The importer claims that a clerk did not assign the correct value to the appropriate dutiable and non-dutiable entered values. The majority of the alleged errors pertain to the value of the fusible which the importer claims was erroneously included in the dutiable portion of the original entry summary. The importer further states that although the fabric was foreign in origin, it was cut to shape in the U.S., rendering it non-dutiable. Other alleged errors include the value of the buttons which the importer claims was incorrectly calculated.
You state that on August 2, 1999, the importer provided you with corrected and actual values on their 1998 cost submission report in accordance with 19 CFR 10.21 and that based on the corrected cost submission U. S. Customs refunded duties to the importer. You further state that as regards the protested entries, the importer has failed to submit any additional documentation in support of its claim that the value of the fusibles was inadvertently and incorrectly placed in the entered dutiable value of the merchandise.
A year after the submission of this protest, the importer filed a Prior Disclosure with Customs on May 19, 2000, in which Biltwell disclosed that it believed merchandise was entered using estimated costs and there was a variance between entered and actual costs. For certain shipments, the discrepancy may have resulted in a loss of revenue. A copy of the Prior Disclosure was included with your submission. You inform us that to date no action has been taken with regard to the Prior Disclosure and moreover, the company is now out-of-business.
ISSUE:
As regards the six protested entries, whether the importer has demonstrated that the merchandise was improperly appraised due to the payment of duties and merchandise processing fees in excess of what was due?
LAW AND ANALYSIS:
Section 484(a), Tariff Act of 1930, as amended (19 U.S.C. 1484(a)), requires importers to file with Customs such documentation as is necessary to enable Customs "to assess properly the duties on the merchandise..." In this case, regarding the protested entries, the importer initially made entry using estimated values then later provided Customs with corrected and actual values. Based on the corrected actual values, Customs refunded duties. Under the provisions of Section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514(a)(2) and (5)) and 19 CFR 174.11(b) and 174.11(e) the importer now protests the classification and liquidation of the subject entries, for which duties were previously refunded. The protest is based on the claim that due to clerical error, the duties and Merchandise Processing Fees ("MFP") were overpaid. (19 U. S. C 1520(c)(1) and 19 CFR 173.4)
The mistakes attributed to the clerk do not meet the definition of "clerical error." A "clerical error" has been stated by the Courts to be a "mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgment, in writing or copying the figures or in exercising his intention." PPG Industries, Inc. v. United States, 7 CIT 118, 124 (1984). In Ruth F. Sturm's Customs Law & Administration (3'' Edition), it is stated that "clerical error has been found where mistakes were made in copying or typing figures or where figures have been transposed." The errors referenced in this protest clearly demonstrate the exercise of judgment by the clerk and go beyond the accepted definition of clerical error. Relief is therefore not available on the grounds of clerical error.
After a review of the documents submitted we are unable to conclude that additional duties and merchandise processing fees should be refunded to the importer in excess of what was previously refunded. The documentation submitted is insufficient to support the importer's claims. Additionally, in accordance with Treasury Decision (T.D.) 86-56,
dated March 6, 1986, we note that where there are differences or discrepancies contained in entry documentation, the presumption is raised that documents contain false or erroneous information. Under the circumstances, this protest should be denied.
HOLDING:
Pursuant to the foregoing, this protest should be denied. The importer has not provided sufficient evidence to demonstrate that the merchandise was improperly appraised and that duties and merchandise fees were paid in excess of what was due.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002,
pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www. cbp. gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Virginia L. Brown, Chief
Value Branch