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HQ 223753

December 29, 1992

DRA-1-01-CO:R:C:E 223753 AJS


District Director
P.O. Box 2450
San Francisco, CA 94126

RE: Protest for further review number 2809-91-101537; Same condition drawback; clerical error; Certificate of delivery; CF 331; 19 U.S.C. 1520(c)(1); 19 U.S.C. 1514(a); Hambro Automotive Corp. v. U.S.; PPG Industries Inc. v. U.S.; 19 CFR 191.6(a) & (b); 19 CFR 141(C); T.D. 54848; Sturm's Customs Law & Administration.

Dear District Director:

This is our decision in protest for further review number 2809-91-101537, dated 9/13/91, concerning a denial of duty refund for same condition drawback due to a claimed clerical error.


The merchandise at issue was entered by the Campbell Soup Company. A same condition drawback entry was filed concerning the merchandise on 8/17/89. Queen's Way Foods Co. was designated as the person authorized to collect drawback.

The evidence is confusing. The drawback claim states that Campbell Soup Company was the importer of record (Customs Form (CF) 7539, block 7 and 8) and the exporter (CF 7539, block 30). The export bill of lading shows that the protestant was the shipper of the merchandise to Japan. It is unclear whether Campbell Soup Company was the exporter, as stated on the CF 7539, or whether the protestant, Queen's Way Foods, was the true exporter. It appears that both the protestant and Customs assumed that Queen's Way Foods was the exporter.

Drawback was denied and the entry was liquidated on 5/11/90 because the CF 331, Certificate of Delivery, was not filed. On 5/10/91, a request was made pursuant to 19 U.S.C. 1520(c)(1), as well as a protest against the liquidation of this entry. The CF 331 was submitted at this time, and it
was signed by the manager for the Campbell Soup Company. The protestant claims that the CF 331 was not previously submitted because of clerical error. No specific information, however, was submitted regarding this claimed clerical error. This request was assigned number 2809-91-200174 and denied on 7/02/91. It was treated as a request to reliquidate under section 1520(c)(1) and not as a protest under 19 U.S.C. 1514(a).

Protest for further review number 2809-91-101537, 9/13/91, was subsequently filed against Customs refusal to reliquidate this entry. The CF 19 states that a CF 331 signed by a corporate officer of the Campbell Soup Company would be submitted within 15 days of the filing of this protest. Our records do not indicate that another CF 331 has been submitted.


Whether the failure to file a CF 331 is a clerical error which allows for reliquidation under 19 U.S.C. 1520(c)(1).


Initially, we note that both the request for reliquidat-ion under 19 U.S.C. 1520(c)(1) and the protest of the denial of that request, under 19 U.S.C. 1514(a), were timely filed.

19 U.S.C. 1514(a) states that the liquidation or reliquidation of an entry shall be final and conclusive upon all persons unless a protest is filed within 90 days, or a civil action contesting the denial of the protest is commenced in the United States Court of International Trade within 180 days from the date of liquidation or reliquidat- ion. The date of liquidation in this case was 5/11/90. Neither a protest was filed nor a civil action commenced within the required time periods. Therefore, Customs liquidation of the subject entry was final and conclusive upon all persons.

19 U.S.C. 1520(c)(1), however, is an exception to section 1514. This provision allows Customs to reliquidate an entry to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law when certain conditions are met. These conditions are that the clerical error, mistake of fact, or other inadvertence must be adverse to the importer, manifest from the record or established by documentary evidence, and brought to the attention of Customs within one year after the date of liquidation of the entry.

A request for reliquidation was filed based on a claimed clerical error due to the protestant's failure to file a CF 331. No specifics were given concerning this clerical error. The importer of record in this case is the Campbell Soup Company, and the party requesting reliquidation is Queen's Way Foods. As stated previously, section 1520(c)(1) requires a clerical error to be "adverse to the importer". It is unclear that the failure to file the certificate of delivery was adverse to the importer- Campbell. Even if it is assumed that the failure to file a certificate of delivery is somehow an error, mistake or inadvertence to the importer-Campbell, the available evidence does not establish that the other statutory elements of 19 U.S.C. 1520(c)(1) were met.

When a claimed error is not manifest from the record or made apparent by documentary evidence submitted by the petitioner with sufficient particularity to allow remedial action within the time for filing the petition for relief under 19 U.S.C. 1520(c)(1), relief may not be granted under that provision. Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, C.D. 4761, 458 F. Supp. 1220 (1978); aff'd 66 CCPA 113, C.A.D. 1231, 603 F. 2d 850 (1979).; PPG Industries, Inc. v. United States, 4 CIT 143 (1982). In this instance, our records do not indicate that a CF 331 executed by the proper party has yet been filed. 19 CFR 191.6(a) establishes which persons have the authority to sign drawback documents. A Certificate of Delivery, CF 331, is a document which requires execution in accordance with this section. 19 CFR 191.6(b). The manager of the Campbell Soup Company signed the CF 331. A manager may sign the CF 331 if they possess a power of attorney pursuant to 19 CFR 141(C). No information in the record indicates that this manager possesses a power of attorney. Thus, relief may also not be granted under section 1520(c)(1) based on the fact that the required documentary evidence was not properly submitted.

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 judgement, in writing or copying the figures or in exercising his intention." See PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984), and cases cited therein; see also, Treasury Decision (T.D.) 54848, wherein an example of a clerical error is given as: "[a person] meant to write 'par. 231' but wrote 'par. 131'"). In Ruth F. Sturm's Customs Law & Administration (3rd Edition), it is stated that "[c]lerical error has been found where mistakes were made in copying or typing figures or where figures have been transposed", and a number of Customs Court decisions are cited for this proposition (section 9.4, at pages 5 and 6). The record does not indicate that the CF

331 was not filed for any of these types of reasons. Accord- ingly, the failure to file a CF 331 does not appear to constitute a clerical error in this case.

19 CFR 191.61 states that a drawback entry and all documentation necessary to complete a drawback claim, including those issued by one Customs officer to another, shall be filed or applied for, as applicable, within three years after the date of exportation of the articles on which drawback is claimed. Claims not completed within the 3 year period shall be considered abandoned. No extension will be granted unless it is established that a Customs officer was responsible for the untimely filing. The subject drawback entry was filed on 8/17/89. Therefore, the importer had until 8/17/92, to complete their claim. As discussed previously, it does not appear that the necessary documentation has yet been filed. The CF 19 states that a CF 331 signed by a corporate officer of the Campbell Soup Company would be submitted within 15 days of the filing of this protest. Our records contain a CF 331 signed by a manager of the Campbell Soup Company, who does not appear to possess the proper authority to sign the CF 331. Consequent-ly, the subject claim does not appear to have been completed within 3 years as required, and thus must be considered abandoned.


The failure of the protestant to properly file a CF 331 was not a clerical error for which relief may be granted pursuant to 19 U.S.C. 1520(c)(1).

The protest is DENIED. A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division

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