HQ 221005: Request for Further Review of Protest No. 3901-7-000085, dated January 27, 1987

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 221005
                                  December 12, 1988


          LIQ-9-01-CO:R:C:E 221005 GG

          CATEGORY:  Liquidation/Reliquidation

          District Director of Customs
          610 South Canal Street
          Chicago, Illinois 60607

          RE:  Request for Further Review of Protest No. 3901-7-000085,
          dated January 27, 1987

          Dear Sir:

               The following is in reply to your request on March 16, 1987,
          for further review of the above-referenced protest.

          FACTS:

               Protester imported a West German rebar bending machine.  The
          merchandise was entered on May 7, 1986 and the entry was
          liquidated on June 13, 1986.  The rebar machine was entered and
          liquidated under item 649.43 of the Tariff Schedules of the
          United States (TSUS), and a duty of 8.2% was assessed.

               The protester's broker filed a 19 U.S.C. 1520(c)(1) request
          for reliquidation and refund of duty with the U.S. Customs
          Service (Customs) on November 25, 1986.  The request for relief
          under this provision was based on an alleged error in the
          original classification of the rebar bending machine.  No
          clerical error or mistake of fact issue was raised.  The
          protester claimed that the goods should have been entered under
          item 674.35, TSUS which has a lower duty rate of 4.8%.  The
          requested refund was approximately $375.  Enclosed with the 19
          U.S.C. 1520(c)(1) petition was a corrected entry summary which
          listed the new TSUS item number.

               The claim was denied on January 7, 1987 by the U.S. Customs
          Service, which stated that the protester had failed to supply
          evidence to support the request for reliquidation and refund.
          The importer then protested this adverse decision by filing a
          protest under section 514(a)(7) of the Tariff Act of 1930, as
          amended, challenging Customs' refusal to grant relief under 19
          U.S.C. 1520(c)(1).  In addition to reiterating that the original
          classification of the bending machine was incorrect, the
          protester in this protest brought up the new issue that a 3% cash
          discount had been omitted and not deducted from the entered value
          of the merchandise.













                                        - 2 -

          ISSUES:

               1.  Whether the protest in question was timely filed;

               2.  Whether protester's 19 U.S.C. 1520(c)(1) request for
                   reliquidation and refund of duties was properly denied
                   by Customs;

               3.  Whether a new issue which was not included to support
                   objections raised by a valid protest may be brought up
                   in a 19 U.S.C. 1514 protest against a decision by
                   Customs refusing to reliquidate an entry under 19 U.S.C.
                   1520(c)(1).

          LAW AND ANALYSIS:

               As a preliminary matter, both the 19 U.S.C. 1520(C)(1)
          petition and the subsequent section 514 protest were timely
          filed.  The petition was submitted within a year of the date of
          liquidation, and the protest was received by Customs before the
          90-day time limit had expired.  A denial of the claims thus
          cannot be predicated on the basis that the importer did not
          comply with filing requirements.

               19 U.S.C. 1520(c)(1) allows reliquidation of an entry to
          correct a clerical error, mistake of fact, or inadvertance not
          amounting to an error in the construction of a law.  Relief is
          not available under this provision where, as here, the error
          asserted is one of classification of merchandise, and no other
          grounds which would permit reliquidation have been set forth.
          Numerous cases have held that a determination as to the
          classification of merchandise is a conclusion of law, and an
          error in this area ordinarily cannot be remedied under 19 U.S.C.
          1520(c)(1).  See, e.g., Mattel Inc. v. United States, 377 F.Supp.
          955, 72 Cust.Ct. 257, C.D. 4547 (1974), C.J. Tower & Sons of
          Buffalo Inc. v. United States, 336 F.Supp. 1395, 68 Cust.Ct. 17,
          C.D. 4327 (1972), and Gerry Schmidt & Co. v. United States, 371
          F.Supp 1079, 71 Cust.Ct. 194 (1973).

               An error in classification, as noted above, is a mistake in
          the applicable law which can only be corrected by filing a 19
          U.S.C. 1514 protest within 90 days after liquidation.  Ibid.
          While courts have allowed conversion of 19 U.S.C. 1520(c) claims
          into section 514 protests when all 514 requirements have been
          met, in this case the protester's letter was filed outside the 90
          day time limit, therefore cannot be treated as a section 514
          protest. See  A. Giurlani & Bros., Inc. v. United States, 9 CIT
          60 (1985).  For these reasons, even if the original
          classification was wrong, Customs has no authority to reliquidate













                                        - 3 -


          the entry.

               In addition to there being no evidence to substantiate that
          a 3% discount had been taken advantage of by the importer, the
          valuation claim must be denied because it was untimely filed.
          This issue should have been protested within 90 days after
          liquidation of the merchandise.  19 U.S.C. 1514(c)(2)(A).  A
          protest of a decision refusing to reliquidate an entry under 19
          U.S.C. 1520(c)(1) cannot be expanded to serve as a means to
          extend the time period within which new and unconnected issues
          not previously protested may be raised.  To allow this claim now
          would serve to nullify the statute of limitations specified
          within section 514.  See Phillips Petroleum Company v. United
          States, 54 CCPA 7 (1966).

          HOLDING:

               In view of the foregoing, you are directed to deny the
          protest in full.

                                        Sincerely,




                                        John Durant
                                        Director
                                        Commercial Rulings Division