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HQ 223160

September 13, 1991

LIQ--4-01-9-01-CO:R:C:E 223160 SR

CATEGORY: ENTRY LIQUIDATION

District Director of Customs
101 East Main Street
Norfolk, VA. 23510

RE: Application for Further Review of Protest No. 1401-90-000158; Erroneous liquidation during Countervailing Duty (CVD) Investigation; 19 U.S.C. 1520(c)(1); Mistake of fact.

Dear Sir:

The above-referenced protest was forwarded to our office on Application for Further Review of Protest No. 1401-90-000158, dated February 20, 1991. We have considered the facts and the issue raised; our decision follows.

FACTS:

Stainless steel wire rod was imported from Spain in July, 1988. Customs liquidated the entries on August 19, 1988. The Customs Import Specialist who liquidated the merchandise was not aware that there was an outstanding countervailing duty case. The Broker for the importer requested reliquidation of the entries on March 22, 1989. The District denied reliquidation on December 27, 1989, for the reason that the error involved a construction of law and couldn't be reliquidated under 19 U.S.C. 1520(c)(1). The protest was filed on March 5, 1990. The protestant argues that the entries were liquidated due to inadvertence or mistake of fact and should be reliquidated under 19 U.S.C. 1520(c)(1).

ISSUE:

Whether the merchandise at issue should be reliquidated under 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

19 U.S.C. 1520(c)(1) provides as follows:

(c) Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with -2-
regulations prescribed by the Secretary, reliquidate an entry to correct-

(1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction.

In order to bring a claim under 19 U.S.C. 1520(c)(1), the mistake made must be one of fact not a mistake of law. These terms are defined in C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, C.D. 4327, 336 F.Supp. 1395 (1972), aff'd 499 F.2d 1277, 61 CCPA 90, C.A.D. 1129 (1974). A mistake of fact is defined as any mistake except a mistake of law; a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, which in reality does not exist. A mistake of law exists where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. In the case at issue the Customs officer was unaware of the fact that a Countervailing Duty case was in existence for stainless steel wire rod. This is a mistake of fact. Therefore, a claim under 19 U.S.C. 1520(c)(1) is appropriate.

The protestant did request reliquidation within a year. The language of 1520(c)(1) states "Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct- a mistake of fact . . . brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction." The importer in this case requested reliquidation six months after the merchandise was liquidated. This request for reliquidation should have been granted. The notice of the mistake was brought to the attention of Customs as required by the statute.

19 U.S.C. 1520(c)(1) is for the protection of importers. As stated in C.J. Tower & Sons of Buffalo, Inc., v. United States, supra, one of the purposes in authorizing reliquidation of an entry to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in construction of a law is to eliminate certain unnecessary annoyances and inequities which plague both government and private parties engaged in the import-export business.

HOLDING:

The Customs officer that liquidated the merchandise on August 19, 1988, was unaware that there was a countervailing duty case pending. This is a mistake of fact under 19 U.S.C. 1520(c)(1). The importer brought the error to the attention of the Customs Service within a year after the date of the liquidation by filing a request for reliquidation.

Accordingly you are directed allow the protest. A copy of this decision should be furnished to the protestant in order to satisfy the notice requirement of section 174.30(a), Customs Regulations. Countervailing duties should be refunded.

Sincerely,

John A. Durant

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