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HQ 226481

September 18, 1996

LIQ-9-01-RR:IT:EC 226481 CC


Port Director
U.S. Customs Service
#1 La Puntilla Street
San Juan, Puerto Rico 00901

RE: Application for further review of Protest No. 4909-95- 100105; 19 U.S.C. 1520(c)(1); mistake of fact; classification of frozen acerola pulp

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.


The entry the subject of this protest consisted of "frozen acerola pulp." The merchandise was entered on June 30, 1994. The entry was liquidated on October 14, 1994 under subheading 0811.90.8080 of the Harmonized Tariff Schedule of the United States (HTSUS), the provision for other frozen fruit.

On April 18, 1995 the protestant requested, in accordance with 19 U.S.C. 1520(c)(1), that you reliquidate the entry under subheading 2008.99.8000, HTSUS, the provision for other fruit pulp, otherwise prepared or preserved.

Therefore, the protestant's claim is that there was a mistake of fact in classifying the merchandise. Specifically, the protestant claims that there was a mistake in liquidating the subject entry since similar merchandise in a previous entry was already the subject of a protest concerning its classification.

On June 27, 1995 the section 1520(c)(1) claim was denied. This protest on the denial of the section 1520(c)(1) claim was filed on September 11, 1995.


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


Initially, we note that both the request for reliquidation under 19 U.S.C. 1520(c)(1) and the protest of the denial of that request under 19 U.S.C. 1514(a)(7) were timely filed.

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 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.

A mistake of fact occurs when a person understands the facts to be other than what they really are and takes some action based on that erroneous belief, whereas a mistake of law occurs when a person knows the true facts of the case but has a mistaken belief as to the legal consequences of those facts. See, e.g., C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 21, C.D. 4327, 336 F. Supp. 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974); Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 458 F.Supp. 1220 (1978), aff'd, 66 CCPA 113, 603 F.2d. 850 (1979); and PPG Industries, Inc. v. United States, 7 CIT 118 (1984).

The protestant states that there was a valid protest filed in August 1994 on a previous entry in February 1994 for identical merchandise. In addition, the protestant claims that the proper classification of the frozen acerola pulp was not a settled issue, since it was subject to a Customs laboratory analysis and a pending decision of the application for further review at Headquarters. According to the protestant, the import specialist should not have permitted liquidation until the proper classification was determined at Headquarters and also because the import specialist knew of the importer's intention to contest the classification based on a meeting held. Consequently, the protestant argues that there was a mistake of fact rather than a mistake of law. We note that the previous protest cited by the protestant was allowed in HQ 957040, dated July 11, 1995, in which it was found that the merchandise is classifiable under subheading 2009.80.6090, HTSUS, which provides for other fruit juices.

The courts have taken the position that generally an error in the classification of merchandise is not a clerical error, mistake of fact, or inadvertence within the meaning of 19 U.S.C. 1520(c)(1), but is an error in the construction of the law. See, e.g., Cavazos v. United States, 9 CIT 628 (1985); Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D. 4547, 377 F.Supp. 955 (1974); and Fibrous Glass Products v. United States, 63 Cust. Ct. 62, C.D. 3874 (1969), appeal dismissed, 57 CCPA 141 (1970). The protestant has submitted no evidence to show that the classification of the merchandise was a mistake of fact rather than a mistake of law. Thus the decision as to how the subject merchandise was classified was a mistake of law.

The protestant chose to seek relief pursuant to 19 U.S.C. 1520(c)(1) rather than 19 U.S.C. 1514. The courts have found that the relief provided for in 19 U.S.C. 1520(c)(1) is not an alternative to the relief provided for in the form of protests under 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1) only offers "limited relief in the situations defined therein" (Phillips Petroleum Company v. United States, 54 CCPA 7, 1, C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc., v. United States, 85 Cust. Ct. 68, 69, C.D. 4874 (1980); see also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), and Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986)). There would have been no burden on the protestant to file a timely protest for the subject entry. In fact, the record shows that the protestant did a file a timely protest pursuant to 19 U.S.C. 1514 for a certain entry of identical merchandise for which relief was granted. Based on the above-cited cases, since the protestant failed to seek similar relief for the subject entry and attempted to use section 520(c)(1) as an alternative, the relief sought cannot be granted.

Finally, that a protest on identical merchandise was approved in HQ 957040 only shows that there was an error in the construction of the law and does not establish that there was a mistake of fact. In Degussa Canada Ltd. v. United States, 889 F. Supp. 1543 (CIT 1995) the court found that the classification of merchandise at one port constituted a mistake of law and not a mistake of fact for entries covering identical merchandise at another port for which a timely protest with application for further review was filed and subsequently approved. The court stated the following at page 1546:

The fact that a series of other entries covering identical merchandise had been made at the [other] port ... and that a timely protest with application for further review was filed on these ... entries, and subsequently approved, established that an alleged error was made in the classification of the merchandise and therefore an error in the construction of law.

The affect of HQ 957040, the protest on identical merchandise, is to show that there was an error in the classification of the subject merchandise. Absent any evidence by the protestant that establishes that there was a mistake of fact, we must conclude based on the above cited cases that the error in classification was in the construction of the law, only correctable by filing a timely section 1514 protest.


No mistake of fact was present under 19 U.S.C. 1520(c)(1) in an error in the tariff classification of the subject entry. Consequently, the protest should be DENIED in full.

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, Freedom of Information Act and other public access channels.



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