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HQ 227484

February 27, 1998

LIQ-1-09 RR:CR:DR 227484 CB


Port Director of Customs
U.S. Customs Service
Entry Branch
9777 Via de La Amistad
San Diego, CA 92173
ATTN: Carol J. McDaniel, Otay Mesa

RE: Protest and application for further review no. 2501-96100086; reliquidation to correct mistake of fact; 19 U.S.C.

Dear Sir/Madam:

This responds to the referenced protest. The protest record has been reviewed and our decision follows.


The subject protest covers thirty entries which were liquidated between January 27 and June 30, 1995. The subject golf club heads were entered under subheading 9506.39.0060, Harmonized Tariff Schedule of the United States (HTSUS), as golf club heads. According to protestant, at the time of entry, the broker was unaware that the values reflected on the invoices for the golf club heads which were identified as damaged were incorrect. Protestant asserts that this valuation was incorrect because it was based on the material values and the labor costs for good golf club heads. As it turned out, these damaged articles were actually worthless except for their scrap value. As a result, the invoiced and entered unit values were clearly excessive.

A 19 U.S.C. ?1520(c)(1) petition was filed on December 27, 1995. Protestant sought a refund of the excess duties and merchandise processing fee assessed therein due to clerical error, mistakes of fact or other inadvertence. The petition did not contain any documentary evidence. Your denial of the request for reliquidation is dated July 19, 1996. The subject protest was filed on October 15, 1996.

This office afforded protestant an opportunity to make a written submission to substantiate its claim. As a result of our request, protestant submitted an affidavit from the Vice President of Finance & Administration for Lynx Golf dated January 28, 1998. Lynx was neither the importer of record nor the broker for the subject entries. According to the invoices, Lynx was the consignee. The affidavit refers to an "Exhibit A", however, there is no attachment to the affidavit. Nonetheless, the affiant asserts that neither the importer nor the broker knew that the golf club heads were useable only as scrap.


Was Customs denial of the importer's request for reliquidation under 19 U.S.C. ?1520(c)(1) erroneous, such that this protest under 19 U.S.C. ?1514(a)(7) should be approved?


Initially, we note that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. ?1514 and 19 CFR Part 174). We also note that refusal to reliquidate an entry under section 1520(c) is a protestable decision under section 1514 (19 U.S.C. 1514(a)(7)).

Under the protest procedure of 19 U.S.C. ?1514, errors in the classification, valuation, etc. of merchandise can be corrected, and reliquidation obtained with refund of overpaid duties, if the error is bought to the attention of the appropriate Customs officer within 90 days of the liquidation. Failure to file a protest within the prescribed period renders the liquidation final and binding on the importer and the government.

After the expiration of the 90-day period, an importer can obtain a reliquidation of the entry, and a refund of overpaid duties, in only limited circumstances. Under 19 U.S.C. ?1520(c)(1), an entry can be reliquidated to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law. The error must be adverse to the importer and brought to the attention of the appropriate Customs officer within one year from the date of liquidation. The error must be manifest from the record or established by documentary evidence. This means that the nature of the error must be observable upon review of the record or upon submission of documentary evidence. In either event, the burden is on the petitioner to establish the nature of the error claimed and to demonstrate that it falls within the ambit of the statute.

A mistake of fact must be manifest from the record or established by documentary evidence. The Court of International Trade (CIT) has ruled that mere assertions by a complainant without supporting evidence will not be regarded as sufficient to overturn a Customs official's decision. Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983). In ITT Corp. v. United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994), the court found that reliquidation under 19 U.S.C. ?1520(c) requires both notice and substantiation. Notice of a clerical error, mistake of fact, or other inadvertence includes asserting the existence of a clerical error, mistake of fact, or other inadvertence "with sufficient particularity to allow remedial action."

As stated in the FACTS section of this decision, protestant has submitted an affidavit from an individual who is neither an employee of the importer nor of the customs broker. Yet, the affiant purports to attest as to the state of mind of those who prepared the entry documentation. There is no evidence (i.e., by the person making the allegedly erroneous valuation as to what he or she believed the nature of the merchandise to be and the basis for that belief) establishing that the alleged error was a mistake of fact and not a mistake of law.

The protestant has failed to meet the substantiation requirements for relief pursuant to 19 U.S.C. ?1520(c)(1). The protest consists of an assertion regarding the valuation of the damaged golf heads and virtually no assertions (with supporting documentation) about the broker's belief regarding the value of the merchandise. Since we do not know who made the mistake, we cannot determine whether it is a mistake made by one upon whom devolves no duty to exercise judgment, nor do we have any evidence that the lack of awareness of the incorrect valuation resulted from a mistake or an exercise of judgment. Furthermore, the invoices describe the merchandise as damaged golf club heads. Thus, given the fact that the merchandise was properly described in the invoices, it is not clear where the alleged mistake occurred.

For examples of the evidence required in 19 U.S.C. ?1520(c)(1) requests, see HQ ruling 224118, July 26, 1993; note also the description of the evidence required by the Court of International Trade in ITT, supra, and note in particular, that evidence to "[make] clear to Customs that a mistake of fact, rather than one of law, actually occurred" is necessary. 812 F. Supp. at 217. See also, 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); and Bar Bea Truck, supra at 126, with regard to the sufficiency of evidence when there is "no affidavit or other evidence in support of [plaintiff's] counsel's bald assertion ...."

Finally, protestant seems to be attempting to avoid the time limits of 19 U.S.C. ?1514 on a case that involves the construction of the valuation laws. Protestant alleges that the merchandise consisted of worthless golf club heads which were suitable only for scrapping. Thus, the merchandise was improperly entered, appraised and liquidated. The importer bears the burden of proof to show, by a preponderance of the evidence, not only that the merchandise was damaged but the extent of the damage as well. See W. Sheldon & Co. v. United States, 18 CCPA 177 (1930). Furthermore, the courts have stated that it is up to the importer to overcome the presumption of correctness attaching to Customs action in assessing the appropriate duty. See generally, Wm. M. Jones & Co. v. United States, 38 CCPA 158 (1951). A review of the record shows that Customs examined the entry documentation (this was not a by-pass entry) and, therefore, there is a presumption of correctness attached to Customs appraisement of the merchandise. In the instant case, protestant has failed to overcome this burden. According to the affiant, the heads were remelted and sold as scrap metal. The scrap was sold for $0.22 per pound (approximately $0.11 per head). However, there is no documentary evidence to substantiate these assertions. In the absence of any evidence to support its claim regarding the value of the merchandise, we must conclude that the merchandise was properly entered, appraised and liquidated.


The subject protest should be DENIED. The mistake of fact alleged in this case is not manifest from the record nor established by documentary evidence, as required by 19 U.S.C.

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.


John Durant, Director
Commercial Rulings Division

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