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HQ 226655

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January 19, 1996

LIQ-9-01-RR:IT:EC 226655 GOB

Category: LIQUIDATION PROTEST

Port Director of Customs
555 Battery Street
San Francisco, CA 94111

RE: Application for Further Review of Protest No. 2809-95-101659; 19 U.S.C. 1520(c)(1)

Dear Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the issues raised by your office and Nikon Precision Inc. (the "protestant"). Our decision follows.

FACTS:

The entry at issue was filed on December 26, 1994 (Entry No. 510-734xxxx-x).

In its protest, the protestant states as follows:

Pursuant to 19 U.S.C. Sec 1514(a)(7), we hereby protest the refusal to reliquidate under 19 U.S.C. Sec 1520(c)(1). We feel that all the conditions under 19 U.S.C. Sec 1520(c)(1) have been met. As far as we know, Customs Headquarters has never addressed this factual situation. This policy is remedial in nature, and should be interpreted fairly and equitably.

In its petition for liquidation dated July 25, 1995, the protestant stated:

On Friday December 23, 1994, President Clinton signed the proclamation implementing the GATT tariff reductions. As a result, the duty rate on subject commodity under HTS 9010.20.6030 was reduced from 3.7% to duty free.

Due to the late passage of GATT and therefore, the availability of information on the tariff, several administrative messages were issued to provide guidelines on year-end handling procedures. There was much confusion in interpreting these procedures. This was acknowledged by Customs.

Administrative Message 94-1380, dated December 29, 1994, provided that importers of merchandise entitled to I.D. privileges could take advantage of the reduced rates if (1) their merchandise was released on or after December 16, 1994, and (2) entry was made and duties paid in 1995. As the instant merchandise was released on December 26, 1994, and duties deposited on January 9, 1995, we respectfully believe that the importer is entitled to a refund of $71,447.01 per 19 CFR 174.13(c). Please issue any refund in care of Nippon Express U.S.A., Inc. at the address shown above.

ISSUE:

Whether Customs properly denied the protestant's request to reliquidate the subject entries under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514 and 19 CFR Part 174. The request for reliquidation was also timely filed pursuant to 19 U.S.C. 1520(c)(1).

We also note that the refusal to reliquidate an entry under 19 U.S.C. 1520(c) is a protestable issue pursuant to 19 U.S.C.

Under 19 U.S.C. 1520(c)(1), an entry may be reliquidated to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of the law. The statute provides that the error must be manifest from the record or established by documentary evidence and brought to the attention of the appropriate Customs officer within one year from the date of liquidation.

Errors "manifest from the record" are those apparent to Customs from a facial examination of the entry and entry papers alone. "Documentary evidence" is all other evidence supporting the existence of the claimed error. The importer must inform Customs of the alleged error with sufficient particularity to allow remedial action. The importer must describe in detail the alleged error and prove that the error was not the result of a legal error rather than a factual error. An error correctable under 19 U.S.C. 1520(c)(1) must be established by the evidence and cannot be inferred from the circumstances.

In ITT Corporation v. United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994), the court stated:

With regard to substantiation, ? 1520(c)(1) requires the importer to establish the asserted inadvertence through documentary evidence submitted to the appropriate customs officer, unless the inadvertence is manifest from the record. Inadvertences manifest from the record are those apparent to Customs from a facial examination of the entry and the entry papers alone, and thus require no further substantiation. While clerical errors likely compose the majority of such inadvertences, mistakes of fact nonetheless also can be manifest from the record that the entry and entry papers constitute. Mistakes of fact that are not manifest from such record, however, must be established by documentary evidence.

In PPG Industries, Inc. v. United States, 4 CIT 143, 147-148 (1982) the court stated (quoting in part from Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31 (1978)):

It is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact. The burden and duty is upon the plaintiff to inform the appropriate Customs official of the alleged mistake with "sufficient particularity to allow remedial action."

In United States v. Enrique C. Lineiro, 37 C.C.P.A. 5, 10 (1949), the court stated that "[d]etermination of issues in customs litigation may not be based on supposition."

After a consideration of the subject protest and the evidence of record, we determine that the protestant has not established by documentary evidence the occurrence of a clerical error, mistake of fact, or other inadvertence within the meaning of 19 U.S.C. 1520(c)(1). The protestant has not stated whether it is alleging (a) clerical error; (b) mistake of fact; or (c) other inadvertence. Much more importantly, the protestant has not provided documentary evidence to support such a claim.

Further, the occurrence of a clerical error, mistake of fact, or other inadvertence within the meaning of 19 U.S.C. 1520(c)(1) is not manifest from the record.

Accordingly, the application for further review is denied.

HOLDING:

As detailed supra, the protest is DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

Director,
International Trade Compliance

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