HQ 223903: Protest No. 4195-91-100197; 19 U.S.C. 1520(c)(1); Mistake of Fact; Error in Construction of Law.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 223903

                        August 14, 1992


LIQ-9-01-CO:R:C:E 223903 SLR

CATEGORY: Entry/Liquidation

District Director of Customs
55 Erieview Plaza
Cleveland, OH  44114

RE:  Protest No. 4195-91-100197; 19 U.S.C. 1520(c)(1); 
     Mistake of Fact; Error in Construction of Law.

Dear Sir:

     The above-mentioned protest was forwarded to this office for
further review.  We have considered all arguments raised and our
decision follows.

FACTS:

     This protest is against your decision not to reliquidate
certain entries under 19 U.S.C. 1520(c)(1).  Twelve entries are
involved.

     Between April 30, 1990 and October 9, 1990, the protestant
imported from Canada merchandise described as "motor parts."  
The merchandise was entered as dutiable under various tariff
provisions.  The entries were liquidated between August 17, 1990
and March 1, 1991.  No protests were filed under 19 U.S.C. 1514.

     On August 15, 1991, the broker for the protestant filed a
request that the entries be reliquidated under 1520(c)(1) because
the merchandise was eligible for reduced duty rates under the
provisions of the United States-Canada Free Trade Agreement
(FTA).  According to the broker:

          [A]n Exporter's Certificate of Origin [ECO] 
          was not submitted at the time of entry since 
          [the importer] did not have the information
          necessary to determine the correct origin
          criteria.  After consulting with knowledgeable
          individuals, the origin criteria was determined
          [and the importer] proceeded to issue [ECO's]
          for entries that contained eligible merchandise.




                              -2-

     ECO's signed and dated after the entry of the merchandise
were submitted along with the 1520(c)(1) request.  Based on these
ECO's, the broker requested that the entries be reliquidated with
the benefit of the reduced duty rate under the FTA.  The broker 
claimed that 1520(c)(1) relief was warranted due to mistake of
fact, in that had the importer known all the facts at the time of
entry, timely ECO's would have been filed.  

     On September 12, 1991, your office denied the 1520(c)(1)
petition for reliquidation because the ECO's were not filed at
the time of entry summary, citing 19 CFR 10.307(a) and (d).
On November 7, 1991, the broker filed the subject protest and
applied for further review.  The grounds for the protest were
basically the same as those stated in the initial request for
reliquidation under 19 U.S.C. 1520(c)(1), although it was also
claimed that "when it was determined that the merchandise was
eligible [for FTA treatment], and the [ECO] was prepared, it 
was prepared incorrectly.  * * *  Clerical error occurred in 
the incorrect preparation of the document which created a 
greater length of time before our claim could be filed."

ISSUE:

     Did Customs err in its denial of the 1520(c)(1) request,
such that the subject protest should be approved?

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), were timely filed.

     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 the law.  The error 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.

     The protestant alleges mistake of fact.  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.  A "mistake of law," on the other hand, 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 PPG
Industries, Inc. v. United States, 7 CIT 188, 123 (1984), and
cases cited therein.)




                              -3-

     In an April 10, 1991 letter forwarded with the 1520(c)(1)
petition, the protestant indicated that the reason the ECO's 
were not timely filed was that "there was some misunderstanding
of the origin criteria rules at that time" (emphasis added). 
This clearly indicates that the mistake in this case was one 
of law (see Concentric Pumps, Ltd. v. United States, 10 CIT 505,
643 F. Supp 623 (1986); see also NEC Electronics U.S.A., Inc. v.
United States, 13 CIT 214; 709 F. Supp 1171 (1989)).

     We note that based on information received, ECO's for 
seven of the twelve entries were filed within 90 days of each
liquidation date.  If this is so, the protestant should have
obtained relief for these entries under 19 U.S.C. 1514 (see 
U.S. Customs Service Fact Sheet 22 dated August 16, 1990).  
In this regard, we note that courts have held that 
"[19 U.S.C. 1520(c)(1)] is not considered an alternative 
to a liquidation/protest review under 19 U.S.C. 1514, and 
its application is limited to [the circumstances therein]"
(NEC Electronics, supra, 13 CIT at 216).  For the remaining 
five entries whose ECO's were filed beyond the protest period, 
no relief is in order as no mistake of fact under 19 U.S.C.
1520(c)(1) has been found.

     The protestant alleges that clerical error caused further
delay in the submission of the ECO's.  This claim was not made 
in the 1520(c)(1) petition but was only made in the protest of
the denial of the 1520(c)(1) petition.  Customs will not address
for the first time at the protest stage a claim which was not
manifest from the record, or made apparent by the documentary
evidence by the petitioner at the time the initial 1520(c)(1)
request for reliquidation was made (see Hambro Automotive Corp.
v. United States, 81 Cust. Ct. 29, C.D. 4761, 458 F. Supp 1220
(1978); aff'd 66 CCPA 113, C.A.D. 1231, 603 F.2d 850 (1979)). 
Consequently, we will not entertain the instant clerical error
claim.

     The protestant cites the granting of a protest at the
district level as authority for granting this protest.  The
documents available to us with regard to this other protest 
are insufficient to establish that the procedures and facts
pertaining to that protest are materially the same as those 
of the instant protest.  Furthermore, we do not accept the 
proposition that a decision by one Customs district director
governs all similar requests for reliquidation under 1520(c)(1)
or protests.







                              -4-

HOLDING:

     Customs did not err in its refusal to reliquidate under 
19 U.S.C. 1520(c)(1).  The failure of the protestant to claim
preferential duty treatment under the FTA did not amount to a
mistake of fact.  As for protestant's clerical error claim,
Customs will not address for the first time at the protest stage
that which was not alleged in the initial 1520(c)(1) petition.

     This protest is denied in full.  A copy of this decision
should be attached to the Customs Form 19 and mailed to the
protestant as part of the notice of action on the protest.


                                Sincerely,



                                John Durant, Director
                                Commercial Rulings Division