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HQ 956951





May 17, 1995

LIQ-9-01-R:C:E 956951 CC

CATEGORY: ENTRY

District Director of Customs
U.S. Customs Service
610 South Canal Street
Chicago, IL 60607

RE: Application for further review of Protest No. 3901-92- 100701; 19 U.S.C. 1520(c)(1); mistake of fact; twine

Dear Sir:

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

FACTS:

The entry the subject of this protest consisted of multiple ply twisted twine of synthetic fibers. The merchandise was entered on September 5, 1989. The entry was liquidated on August 31, 1990 under subheading 5607.50.20 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for twine, cordage, ropes and cables, of other synthetic fibers, not braided or plaited.

Within one year from the date of liquidation, the protestant requested, in accordance with 19 U.S.C. 1520(c)(1), that you reliquidate the entry under subheading 5607.50.4000, HTSUS, which provides for twine, cordage, ropes, and cables, of other synthetic fibers, other. The protestant claims that this type of merchandise was classified in item 315.55 under the Tariff Schedules of the United States (TSUS), which was dutiable at 8 percent ad valorem. When the HTSUS was enacted in 1989, there was no corresponding classification; therefore, the classification under subheading 5607.50.20, HTSUS, resulted in a substantial increase in duty. The protestant claims that the U.S. International Trade Commission acknowledged that no specific cross reference was provided for under the HTSUS for the subject merchandise, and legislation had been introduced in Congress to rectify the situation. Since the change from the TSUS to the HTSUS was intended to be revenue neutral, the protestant argues that classification should be under 5607.50.4000, HTSUS, since the duty rate for the subject merchandise would be more similar to that applicable under the TSUS.

On January 28, 1992 the section 520(c)(1) claim was denied. This protest on the denial of the section 520(c)(1) claim was filed on April 24, 1992.

ISSUE:

Whether the subject merchandise may be liquidated due to a mistake of fact pursuant to 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

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).

There is an affirmative burden on the protestant to establish, by the record or by documents, the nature of the error and to demonstrate that the error is, in fact, correctable under the statute. See generally, PPG Industries, Inc. v. United States, supra.

Essentially, the protestant's claim is not that Customs made an error in classifying the subject merchandise, but that there is an error in the law relating to the tariff classification of the type of merchandise the subject of this protest.

In Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), it was stated, "The courts, in cases interpreting section 520(c)(1), have consistently held that this section may only be used to correct mistakes of fact or inadvertence, such as clerical or ministerial errors, and may not be used to rectify allegedly incorrect interpretations of the law." The protestant's claim goes beyond that of Customs misinterpreting the law; the protestant's claim is that there is a mistake in the law itself. If an alleged mistake in interpreting the law is not a mistake of fact, clearly any alleged mistake in the law itself could not be a mistake of fact.

The protestant has failed to allege any clerical error, mistake of fact, or other inadvertence, correctable pursuant to 19 U.S.C. 1520(c)(1). Consequently, the protestant's request for reliquidation is denied.

HOLDING:

No mistake of fact correctable pursuant to 19 U.S.C. 1520(c)(1) was alleged in this protest. Consequently, this 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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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