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HQ 227309





March 5, 1998

LIQ-9-01-RR:CR:DR 227309 SAJ

CATEGORY: LIQUIDATION

Port Director of Customs
6 World Trade Center
ATTN: Residual Liquidation and Protest Branch New York, NY 10048-0945

RE: AFR Protest No. 1001-95-110326; Clerical Error, Mistake of Fact or other Inadvertence; 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1); No Evidence; Occidental Oil & Gas Co., v. United States

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have examined the arguments and our decision follows.

FACTS:

The subject protest involves the importation of three shipments of ladies' wearing apparel (merchandise) by Contrepoint Industries Inc. (protestant). The merchandise was made in Hong Kong by Tradeflow Ltd. (manufacturer), and sold and exported by Medan Company Ltd., Hong Kong (seller). The protestant hired Apparel Buying Services Ltd., Hong Kong as their commissioned buying agent (buying agent).

According to the documents in the file, the following three shipments of the merchandise were entered: entry numbers 469-xxxx135-2 (135-2) dated February 12, 1993; 469-xxxx738-1 (738-1) dated August 18, 1993; and 469-xxxx392-6 (392-6) dated October 12, 1993.

Entry number 135-2 was entered on the basis of the seller's invoice prices for the merchandise. On March 8, 1993, the protestant received a Notice of Action (Customs Form (CF) 29) from Customs proposing to advance the dutiable value of the merchandise on the basis that the "[q]uota charges paid to the seller are dutiable." The protestant claimed that the merchandise was not subject to duty and requested additional time to provide information in a letter dated March 26, 1993 to substantiate that the quota charges were paid separately by the protestant to a third-party quota broker and not to the seller.

On May 7, 1993, Customs issued a Request for Information (CF 28) requesting detailed information concerning the transaction, including quota transfer documents, and proof of separate payment for quota by the protestant to the quota holder. The protestant, in a letter dated June 24, 1993, explained that because the manufacturer did not have the quota necessary to export the shipment, the protestant arranged with Simway Textiles Ltd., Hong Kong (quota broker), a third party broker, to secure quota. The quota broker then sold the quota to the protestant, while the seller arranged for its transfer to the manufacturer on the protestant's behalf. The protestant also stated that no quota charges were paid to the manufacturer, but rather was obligated to pay the quota broker and that, upon such payment, would supply proof thereof to Customs. The protestant provided copies to Customs of the quota transfer documents, whereby quota was transferred to the manufacturer by other quota holders.

The protestant stated to Customs, in a letter dated July 29, 1993, that the quota charges were not paid to the manufacturer or to the seller. The protestant supplied proof of payment for the merchandise through the protestant's buying agent. The protestant also showed that charges for quota paid on the protestant's behalf and for the buying agent's 7.5% commission were separate from the payment for the merchandise.

Customs issued a second Request for Information (CF 28) on August 13, 1993, asking for additional information and documentation. Customs requested a copy of the buying agency agreement, proof of the agent's payment to the seller, and proof of the payment for quota by the agent or the seller. Customs also requested clarification of the identity of the seller. The protestant responded by letter dated October 18, 1993, transmitting a copy of the buying agreement and confirming that Medan Company Ltd. was the seller of the goods. The protestant also claimed that both the seller and the agent were reluctant to comply with the protestant's request for payment documents on the basis that those documents were proprietary.

The protestant claims that copies of the official receipts issued by the quota broker for payment of the quota charges and copies of the payment advice issued by the bank and credit note receipt issued by the seller for payment to the seller for the merchandise, were not received until entry number 135-2 had been liquidated.
Entry number 738-1 was not the subject of any Request of Information (CF 28), but the entered value was advanced and increased duties were assessed upon liquidation due to the absence of the payment documents requested by Customs from the protestant. The protestant claims that the same reasons given for entry number 135-2 apply to entry number 738-1.

Entry number 392-6 was the subject of a value advance upon liquidation to add the quota and buying agency commission charges. A Notice of Action (CF 29) was issued by Customs with respect to this entry, proposing the same action as set forth in the Notice of Action (CF 29) for entry number 135-2. The protestant claims that despite efforts made, the documentation needed to substantiate the non-dutiable status of the buying agent's commission and the quota charges could not be obtained prior to liquidation or within 90 days thereafter.

Notices of Action (CF 29) were issued on CF 29 with respect to two of the entries proposing to advance the dutiable value of the merchandise on the basis that certain quota charges were dutiable.

According to the protestant, documentation establishing that the quota charges were not paid to the seller of the merchandise but to a third party could not be obtained until after all three of the subject entries were liquidated. Entry number 135-2 was liquidated February 25, 1994, entry number 738-1 was liquidated December 10, 1993, and entry number 392-6 was liquidated March 18, 1994. The protestant did not protest the liquidation of the subject entries within 90 days as required under 19 U.S.C. 1514.

The file contains the following documentation (stated in the order the documents appear in the file):

Letter dated March 26, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint referring to the Notice of Action (CF 29) for entry number 135-2 stating that protestant is "in the process of procuring the necessary information ... [which will be submitted] within the next 10 days";

Letter dated June 24, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint referring to the Request for Information (CF 28) on entry number 135-2 and forwarding some of the requested documentation;

Import and Export Ordinance No. 03109;

Import and Export Ordinance No. 02932;

Import and Export Ordinance No. 02933;

Import and Export Ordinance No. 03386;

Import and Export Ordinance No. 02802;

Letter dated July 29, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint referring to entry number 135-2 forwarding proof of payment and copies of invoices from the buying agent;

Letter dated July 22, 1993 to the protestant from Rena C. Forte of the Bank of Boston Connecticut regarding a wire transfer for invoice numbers 9301, 9302, and 9303;

Invoices (number 9301, 9302, 9303 and 9304) from the buying agent dated January 26, 1993;

Letter dated October 18, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint regarding entry number 135-2, submitting the Agency Agreement , copy of payment to the seller, and quota statements from the quota broker;

Four quota statements from the quota broker containing different amounts, dated April 14, 1993;

Agency Agreement between the protestant the buying agent dated September 25, 1992;

Receipt No. 92/100497/, 92/1003, and 92/1002 from the quota broker dated May 1, 1993;

Invoice No. MD-0004 from the seller dated January 22, 1993;

Credit Note from the seller dated January 1, 1993;

Payment Advice from Standard Chartered Bank dated February 11, 1993 reference no. 315150261748-A;

Invoice No. MED0024-F, MED0025-F, MED0026-F, MED0027-F, MED0028-F; MED0029-F; MED0030-F, and MED0031-F from the seller dated August 12, 1993;

Invoice No. 9358, 9359, 9360, 9361, 9362, 9363, 9364, and 9365 from the buying agent dated August 20, 1993;

Import and Export Ordinance No. 28288, 27850, 29194, and 29398;

Check from the Banque Nationale de Paris dated August 14, 1993 in the amount of HK$177,610;

Deposit Slip from Standard Chartered Bank dated October 11, 1993 for the seller's account;

Check from Fashion Mark Manufacturing Ltd. to the quota broker (illegible amount and illegible date - September

Invoice No. 9373 from the buying agent dated October 10, 1993;

Invoice No. MED0040-F from the seller dated October 5, 1993;

Letter dated August 17, 1993 to Customs JFK from Mr. Neil Lee of Contrepoint stating that the quota broker arranged for the transfer of quota to the manufacturer, the protestant purchased the quota from the quota broker, and the payment for quota charges to the quota broker would be made by the protestant;

Packing List from the seller for Invoice No. MED-0031-F, dated August 11, 1993;

Multiple Country Declaration sheet dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0031-F;

Audit No. 1922231 dated August 3, 1993 containing declarations;

Import and Export Ordinance No. 29398;

Packing List from the seller for Invoice No. MED-0029-F, dated November 8, 1993;

Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0029-F;

Packing List from the seller for Invoice No. MED-0030-F, dated November 8, 1993;

Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0030-F;

Audit No. 1922232 dated August 10, 1993 containing declarations;

Import and Export Ordinance No. 29194;

Packing List from the seller for Invoice No. MED-0028-F, dated August 11, 1993;

Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0028-F;

Audit No. 1922234 dated August 10, 1993 containing declarations;

Import and Export Ordinance No. 27850;

Packing List from the seller for Invoice No. MED-0026-F, dated November 8, 1993;

Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0026-F;

Packing List from the seller for Invoice No. MED-0027-F, dated August 11, 1993;

Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0027-F;

Audit No. 1922230 dated August 10, 1993 containing declarations;

Import and Export Ordinance No. 28288;

Packing List from the seller for Invoice No. MED-0024-F, dated November 8, 1993;

Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0024-F;

Packing List from the seller for Invoice No. MED-0025-F, dated November 8, 1993;

Multiple Country Declaration dated August 11, 1993 for and on behalf of the manufacturer;

Quota statement dated August 10, 1993 for goods shipped under Invoice No. MED-0025-F; and

Audit No. 1922229 dated August 10, 1993 containing declarations.

The protestant states that efforts to secure the additional documentation requested by Customs continued. However, there is no documentation in the file such as faxes or letters that substantiate this assertion.

Customs made a legal determination with the documents submitted and concluded that both the agent's commission and the quota charges were subject to duty. The additional duties were assessed at the time of liquidation and were ultimately paid by the protestant. The protestant did not protest the liquidation of the subject entries within the statutory time frame (within 90 days of the liquidation of the subject entries) set forth under 19 U.S.C. 1514.

After the expiration of the 90-day protest period, the protestant supplied copies of quota statements from the quota broker, confirming the quota amounts. The protestant supplied Customs with a bank deposit slip evidencing payment to the seller, the canceled bank check evidencing payment of quota charges to the quota broker. The protestant also supplied Customs with copies of the seller's invoices, the buying agent's invoices, quota transfer documents, and a canceled check in payment of the merchandise to the seller by the protestant through the buying agent. The protestant claims that despite efforts made, the documentation needed to substantiate the non-dutiable status of the buying agent's commission and the quota charges could not be obtained prior to liquidation or within 90 days thereafter.
The documentation in the file reflects that petition number 1001-94-201781 was filed with Customs on December 9, 1994 for the reliquidation of the three subject entries under 19 U.S.C. 1520(c)(1). Customs denied the petition for reliquidation on September 8, 1995.

The protestant timely filed protest number 1001-95-110326, with application for further review of the denial of the 1520(c)(1) claim, on December 7, 1995. The protestant claimed that further review under 19 C.F.R. 174.24(b) is warranted since it involves questions of fact or law which have not been ruled on by Customs or the courts. The protest was denied on July 19, 1996 on the grounds that "the legal determination which substantiates the assessment of dates for quota charges, is not within the purview of Section 1520(c)(1)."

On September 17, 1996, the protestant timely filed a request to set aside the denial of further review of protest number 1001-95-110326 under 19 U.S.C. 1515(c). In Headquarters ruling (HQ) 227249, it was concluded that the application for further review should have been granted pursuant to the authority of 19 C.F.R. 174.24(b), which voided the denial of further review by the Port Director.

The protestant's counsel submitted an affidavit dated November 7, 1997 on behalf of Mr. Neil Lee, the operations manager of Contrepoint Industries, Inc. On page 2 of the affidavit, Mr. Lee states that his efforts to obtain the requested documentation by Customs consisted of "initiating telephone communications with personnel of Contrepoint's buying agent, ABS ... until he received the requested payment documentation." In the affidavit, Mr. Lee also states that any correspondence between ABS and Contrepoint, with respect to efforts to obtain the requested documentation, "was discarded in the ordinary course of business by Contrepoint and is no longer available."

Insofar as the liquidation of the subject entries, Mr. Lee, in his affidavit, states that "[o]n the basis of ... reasonable, but mistaken belief that the liquidation of Entry number ... [entry number 135-2], was withheld, he did not file a protest on this or the other entries involved .. [entry numbers 738-1 and 392-6], and continued his efforts to obtain the documents requested by [Customs]. Mr. Lee also states that "[h]e was unaware that any of the entries in question were liquidated until more than ninety days after the liquidation of [entry number 392-6].

The mistake of fact alleged by the protestant in this case is that there were continued efforts to obtain the documents requested by Customs, and that the protestant believed it had been given that opportunity by Customs, whereby Customs would withhold the liquidation of the subject entries.

We now review the claims presented in petition number 1001-94-201781, which were filed with Customs on December 9, 1994 for the reliquidation of the three subject entries under 19 U.S.C. 1520(c)(1). The protestant cites to Customs Service Decision (C.S.D.) 80-250 where Customs held that a failure to act may be correctable under 19 U.S.C. 1520(c)(1) when it is coupled with another significant factor, such as a misunderstanding of the facts, or the inability of the protestant to obtain proper documentation to establish a claim.

ISSUE:

Whether relief may be granted under 19 U.S.C. 1520(c)(1).

LAW & 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), were timely filed, and that the denial of a request for reliquidation under section 1520(c)(1) is a protestable decision under 19 U.S.C. 1514(a)(7).

Under 19 U.S.C. 1520(c)(1), Customs may 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 and adverse to the protestant, when certain conditions are met. Section 1520(c)(1) has frequently been interpreted by the Courts.

It has been stated that "[a] clerical error is a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgment, 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.

The Courts have also stated that: "[M]istakes of fact occur in instances where either (1) the facts exist, but are unknown, or (2) the facts do not exist as they are believed to [and] [m]istakes of law, on the other hand, occur where the facts are known, but their legal consequences are not known or a believed to be different than they really are." Executone Information Systems v. United States, 96 F. 3d 1383, 1386 (Fed. Cir. 1996) (emphasis in original), citing Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850 (1979); see also, Degussa Canada Ltd. v. United States, 87 F. 3d 1301 (Fed. Cir. 1996).

Finally, inadvertence has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake." Aviall of Texas, Inc. v. United States, 70 F. 3d 1248, 1250 (Fed. Cir. 1995), citing Hambro, supra).

The conditions required to be met under 19 U.S.C. 1520(c)(1) are that 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. The relief provided for in section 1520(c)(1) is not an alternative to the relief provided for in the form of protests under 19 U.S.C. 1514. Section 1520(c)(1) only affords "limited relief in the situations defined therein." Phillips Petroleum Company v. United States, 54 CCPA 7, 11, C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct. 68, 69, C.D. 4874, 496 F. Supp. 1326 (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).

Executone Information Systems v. United States, Appeal No.95-1527 (Decided September 24, 1996), Customs Bulletin and Decisions, Vol. 31, No. 44, October 29, 1997, is on point. In Executone, Customs issued Notices of Action indicating that because no documentation had been furnished with the entry to support duty-free entry under the CBI, Customs liquidated the entries in question with additional duties. Although the claimant had requested its broker to submit Form A to Customs several times, the broker had failed to do so. A protest had not been filed within 90 days after notice of liquidation as required by 19 U.S.C. 1514. Thereafter, Form A was submitted to Customs with a request to reliquidate the entries under 19 U.S.C. 1520(c)(1). Customs denied the protest because "[n]o supporting documentation other than Form A [was] submitted." Executone p. 19. The Court in Executone articulated that "while the proper documentation need not have existed at the time of entry, the importer must prove ... that the proper documentation did or would have existed at the time of entry and would have been filed, but for some mistake of fact or inadvertence at the time of entry." The Court further reasoned that "Executone, by
repeating its request [of the missing documentation], obviously knew that the forms had not yet been filed, yet failed to act." Executone p. 26.

At the time of liquidation of the subject entries, Customs had outstanding requests for documentation to substantiate that payment of the entered invoice amounts, excluding commissions, were made to the seller of the merchandise and that payments for quota were made to a party other than the foreign seller of the merchandise. Customs did not have the pertinent documentation to substantiate the payment of the invoiced and entered amounts to the foreign seller, the payment of the quota charges to a party other than the seller. Customs therefore value advanced the subject entries and increased the duties. The subject entries were not protested within 90 days as prescribed under 19 U.S.C. 1514.

The protestant contends that the inability to obtain the additional documentation requested by Customs was not due to negligent inaction, but rather due to a clerical error, mistake of fact, or other inadvertence correctable under 19 U.S.C. 1520(c)(1). Specifically, the protestant claims that value advance and increased duties for the subject entries was the "Customs' mistaken belief as to the true facts." See Brief dated December 8, 1994, p.5.

The protestant cites C.S.D. 80-250, which states that failure to act may be correctable under 19 U.S.C. 1520(c)(1) when it is coupled with another significant factor, such as a misunderstanding of the facts, or the inability of the protestant to obtain proper documentation to establish a claim.

The protestant distinguishes its circumstances from those present in C.S.D. 80-250. In C.S.D. 80-250, it was held that "[t]he failure of the importer to respond to Customs' requests for additional information to aid Customs in determining the value of the merchandise amounted to negligent inaction on the part of the importer, and therefore, did not involve clerical error, mistake of fact, or inadvertence within the meaning of section 520(c)(1)." In C.S.D. 80-250, the importer failed, after being requested by Customs, to furnish additional information to help in determining the value of the merchandise. Protestant argues that the case at hand factually differs from the case in C.S.D. 80-250 because the importer in C.S.D. 80-250 had access to the information requested by Customs.

The importer, in C.S.D. 80-250, contended that the mistake of fact was that his employee filed two notices from Customs, instead of responding to such notices. Customs found that the only significant factor present in the matter was the failure to perform a required act. In C.S.D. 80-250, the importer's failure to respond to the two notices which amounted to negligent inaction on the part of the importer and therefore did not involve a clerical error, mistake of fact, or inadvertence within the meaning of section 520(c)(1).

The protestant maintains that in the case at hand, the "inability...to obtain the proper documentation was the sole reason for [the protestant's] "failure to act."" See Brief dated December 8, 1994, p.5. The protestant maintains that the mistake of fact was protestant's failure to timely submit the requested documents to Customs. The protestant claims that the subject entries should have been reliquidated because the protestant, "despite its best efforts, was unable initially to obtain the additional documentation requested by Customs until well after liquidation of the entries." See Brief dated December 8, 1994 p.4.

As in C.S.D. 80-250, Customs takes the position that there is failure on the part of protestant to perform a required act. Customs must liquidate an entry on the basis of the best information available. Where there is doubt regarding the appraisement of the merchandise as in the present case, Customs has an obligation to protect the revenue and must liquidate the entry at the higher value. See HQ 221680. It is fundamental that in order to qualify for relief under 19 U.S.C. 1520(c)(1), it must be established that there was an error or mistake which establishes that the entry and liquidation were incorrect. In this case, there is no mistake of fact present. Customs simply liquidated the subject entries with the information and documentation presented by the protestant. The protestant emphasizes the fact that in C.S.D. 80-250 the importer's failure to perform a required act constituted negligent inaction. In the case at hand, the protestant argues that it did not fail to respond to Customs initial and supplementary requests. The protestant further contends that the protestant "persisted in its attempts to obtain the additional documentary evidence requested by Customs." See Brief dated December 8, 1994, p. 5. It is also claimed by the protestant that "through no fault of [their own] and solely because of the understandable reluctance of the foreign companies to provide internal documentation, the filing of the documents requested by Customs was delayed." Id.

However, no evidence to substantiate the claim that the protestant made efforts to obtain the necessary documentation but failed through no fault of their own is provided. Statements of counsel are not evidence. Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983). Therefore, no evidence of the alleged mistake of fact, such as correspondence corroborating the claim made, is provided.

The protestant's counsel submitted an affidavit dated November 7, 1997 on behalf of Mr. Neil Lee, the operations manager of Contrepoint Industries, Inc. On page 2 of the affidavit, Mr. Lee states that his efforts to obtain the requested documentation by Customs consisted of "initiating telephone communications with personnel of Contrepoint's buying agent, ABS ... until he received the requested payment documentation." In the affidavit, Mr. Lee also states that any correspondence between ABS and Contrepoint, with respect to efforts to obtain the requested documentation, "was discarded in the ordinary course of business by Contrepoint and is no longer available."

Insofar as the liquidation of the subject entries, Mr. Lee, in his affidavit, states that "[o]n the basis of ... reasonable, but mistaken belief that the liquidation of Entry number ... [entry number 135-2], was withheld, he did not file a protest on this or the other entries involved .. [entry numbers 738-1 and 392-6], and continued his efforts to obtain the documents requested by [Customs]. Mr. Lee also states in his affidavit that "[h]e was unaware that any of the entries in question were liquidated until more than ninety days after the liquidation of [entry number 392-6]. Customs position is that the notice of liquidation was posted and no extension was requested by the protestant.

Courts have allowed affidavits to establish evidence in some instances. The Court in Andy Mohan, Inc. v. United States, 74 Cust. Ct. 105, C.D. 4593, 396 F. Supp. 1280 (1975), aff'd 63 CCPA 104, C.A.D. 1173, 537, F.2d 516 (1976), noted that affidavits provided as evidence are only "... entitled to little weight, being incomplete and based on unproduced records, and having been executed years after the transaction to which they attest." Mohan 63 CCPA at 107. In the case at hand, the affidavit is "based on unproduced records." The affiant, Mr. Lee, does not provide evidence of continued efforts to obtain the requested documentation by Customs.

The affidavit was also "executed years after the transaction to which it attests." In this case, almost four years after entry number 135-2 was liquidated. See, United States v. Baar & Beards, Inc., 46 CCPA 92, C.A.D. 705 (1959) (holding that an affidavit more than two years after the event to which it related, not supported by any records, is insufficient to support the basis for the claim at issue).

Occidental Oil & Gas Co., v. United States, 13 CIT 224 (1989) is also on point. In that case, Customs determined that "the failure to file required documents whose absence had been repeatedly called to [the importer's] attention constitute[d] negligent inaction, not correctable under [19 U.S.C. 1520(c)(1)]." Id. at 245. The importer in Occidental Oil submitted affidavits in support of its position alleging that it "promptly took appropriate steps" to obtain the outstanding documentation. Id. at 246. However, as in this case, the importer presented no evidence of the attempt to obtain the requested documentation.

In Occidental Oil the importer also relied on C.S.D. 80-250. Customs maintained that the importer's "request for reliquidation asserts an error of law, rather than a mistake of fact or inadvertence, since it claims that the merchandise was impromptly classified." Id. at 247. An error of law must be protested within 90 days of the liquidation. In Occidental Oil, as well as the instant case, no evidence was presented to substantiate that the protestant importer made an earnest attempt to obtain the necessary documentation in a timely manner. Therefore, the delay by the protestant "cannot be described as a mere "inadvertence"." Id. at 248. Similarly, "regardless of whether [the protestant] was guilty of negligent inaction, it has not shown an error that is remediable under 19 U.S.C. 1520(c)(1)." Id.

Even if we were to conclude that the entry and liquidation were incorrect in this case, the protestant must also establish that the alleged error was due to 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 this case, the protestant claims that the alleged error was due to Customs liquidation of the subject entries despite the absence of certain factual evidence. However, as in Occidental Oil, Customs decision to liquidate the subject entries was a legal determination using the documentation before the appropriate Customs officer.

Under 19 U.S.C. 1520(c)(1), the clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of the law must be "manifest from the record or
established by documentary evidence." The alleged error in this case is not manifest from the record. See ITT Corp. v. United States, 812 F. Supp. 213 (CIT 1993), reversed, 24 F. 3d 1384, 1387 (Fed. Cir. 1994)(stating that "... manifest from the record [means] apparent to Customs from a facial examination of the entry and the entry papers alone, and thus requir[ing] no further substantiation.") In ITT, the Court also stated that "[m]istakes of fact that are not manifest from [the] record ... must be established by documentary evidence." Id. In the instant case there is no such documentary evidence.

Section 1520(c)(1), allows for the reliquidation of an entry to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of the law. Since this provision mandates that the claimed inadvertence be manifest from the record, or established by documentary evidence, we now focus on the question of whether a mistake of fact occurred based on the evidence in the record. Errors "manifest from the record" are those brought to the attention of an appropriate Customs officer within one year from the date of liquidation, and are apparent to Customs from a facial examination of the entry and entry papers alone. "Documentary evidence" is all other evidence supporting the claimed inadvertence.

The Court in PPG Industries, Inc. v. United States, 4 CIT 143 at 147-48 (1982), quoting, in part from the lower court in Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F. Supp. 1220 (1978) stated that the "burden and the duty is on the plaintiff to inform the appropriate Customs official of the alleged mistake of fact with sufficient particularity to allow remedial action." See also United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949) (holding that "[d]etermination of issues in customs litigation may not be based on supposition.") The alleged inadvertence must be described in detail to prove that factual error rather than legal error resulted. An error correctable under section 1520(c)(1), therefore, must be established by evidence, and cannot be inferred by the circumstances.

It is well settled that the only notice of liquidation that is statutorily mandated is a bulletin notice. See, Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 13 CIT 54, 706 F. Supp. 892 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989); Tropicana Products, Inc. v. United States, 13 CIT 390, 395, 713 F. Supp 415 (1989). The Court of International Trade has held that the importer has the burden to check for posted notices of liquidation and to protest in a timely manner. See, Juice Farms, Inc. v. United States, 18 CIT 1037, 1040 (1994)(stating that although Customs erroneously liquidated entries, protestant had no relief to protest after the running of the 90 day period after the posting of the bulletin notices of liquidation); Penrod Drilling Co. v. United States, 13 CIT 1005, 1009, 727 F. Supp. 1463 (1989), reh'g denied, 14 CIT 281, 740 F. Supp. 858 (1990), aff'd. 925 F.2d 406 (Fed. Cir. 1991).

In the instant case, the protestant's failure to check for the posted notices of liquidation caused the failure to file a protest of the liquidation. The protestant has presented no evidence on why the posted notices of liquidation were not checked.

HOLDING:

Relief may not be granted under 19 U.S.C. 1520(c)(1) for the reasons given in the LAW AND ANALYSIS portion of this ruling. 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, with the Customs Form 19, 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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