HQ 221020: Application for Further Review of Protest No. 3901-7- 000804; Timeliness of Protest; Sufficiency of Evidence; 19 U.S.C. 1520(c)(1) and 1514

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 221020

                        November 16, 1990

LIQ-9-01-CO:R:C:E 221020 PH

CATEGORY:  Liquidation

Regional Commissioner of Customs
North Central Region
55 East Monroe Street, Suite 1501
Chicago, Illinois 60603-5790

RE:  Application for Further Review of Protest No. 3901-7-
     000804; Timeliness of Protest; Sufficiency of Evidence; 19
     U.S.C. 1520(c)(1) and 1514

Dear Sir:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the points raised by your
office and the protestant.  Our decision follows.

FACTS:

     According to the file, on September 1, 1986, the protestant
imported a quantity of cotton handbags.  The entered value of the
handbags was $17,068. and they were entered under item 706.41.06,
Tariff Schedules of the United States (TSUS), at 20 percent ad
valorem, with duty of $3,413.60 which was paid.  The entry date
for this importation was September 4, 1986, and the entry summary
date was September 9, 1986.  The entry was liquidated on
October 10, 1986.

     On October 13, 1986, the broker for the protestant filed a
petition that the entry be reliquidated under 19 U.S.C.
1520(c)(1) because "[t]he entry writer inadvertently classified
the handbags as TSUS 706.4106.  The cotton H/L handbags with
cotton P/L lining are more specifically provided for under TSUS
706.3640."  The request was granted and the entry was
reliquidated on November 28, 1986, with duty of $1,399.58.  The
difference between the duty as originally liquidated and that as
reliquidated was refunded.

     On April 15, 1987, the broker for the protestant filed a
petition that the reliquidated entry be again reliquidated under
19 U.S.C. 1520(c)(1) because "[i]n our original petition we
inadvertently forgot to deduct the C&F charges from the invoice
total.  We are now requesting the C&F charges of $5508.90 be
deducted from the invoice total and that duty be re-calculated,
resulting in a refund of $451.74."  On May 5, 1987, this second
petition was denied on the basis that "[n]o evidence [was]
presented to substantiate [the] amount for deduction of freight."
The broker was advised of its right to protest this denial of its
petition under 19 U.S.C. 1514.

     On July 10, 1987, the broker did protest the denial of its
April 15, 1987, petition.  The basis for this protest is stated
to be "copies of commercial invoice clearly stating terms of sale
as C & F; copy of airway bill indicating prepaid airfreight; and
copy of petition as originally presented."  In the course of
review, questions were raised about the timeliness of the
protest.  Further review was approved on October 5, 1987.

ISSUES:

     (1)  Is a protest timely filed when it is filed within 90
days of the denial of a petition filed under 19 U.S.C. 1520(c)(1)
to reliquidate an entry, even though the protest is not filed
within 90 days of the original liquidation of the entry or the
reliquidation (pursuant to an earlier timely petition filed under
19 U.S.C. 1520(c)(1)) of the entry?

     (2)  If the protest under consideration is timely filed, was
there sufficient evidence to grant the petition filed under 19
U.S.C. 1520(c)(1), the denial of which is the subject of this
protest?

LAW AND ANALYSIS:

     Under section 514(a), Tariff Act of 1930, as amended (19
U.S.C. 1514(a)), a protest may be filed against, among other
things, "the refusal to reliquidate an entry under section
1520(c) of [title 19]."  Under paragraph (c)(2) of section 514, a
protest of a decision, order, or finding described in paragraph
(a) of section 514 must be filed within 90 days after the notice
of liquidation or reliquidation or the date of the decision as to
which the protest is made.

     Under section 520(c)(1), Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1):

        Notwithstanding a valid protest was not filed,
        [Customs] may, in accordance with regulations
        prescribed by the Secretary, reliquidate an entry
        to correct ... (1) a 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 any
        entry, liquidation, or other customs transaction,
        when the error, mistake, or inadvertence is
        brought to the attention to [Customs] within one
        year after the date of liquidation or exaction
        ....

     In this case each of the petitions under 19 U.S.C.
1520(c)(1) were timely filed (i.e., within one year from the date
of liquidation or exaction).  The protest filed under 19 U.S.C.
1514 was filed within 90 days after the date of the decision as
to which the protest was made (i.e., the protest (filed on
July 10, 1987) of the April 15, 1987, petition under 19 U.S.C.
1520(c)(1) was filed within 90 days of the denial of that
petition on May 5, 1987).  Therefore, the protest was timely
filed.

     In the evidence submitted by the protestant, there is no
evidence, other than the protestant's statement in its second
petition and in the protest that the freight charge was
$5,508.94, of how much the freight charge was.  To qualify for
reliquidation of an entry under 19 U.S.C. 1520(c)(1), the denial
of which the protestant is protesting, three conditions must be
satisfied.  These conditions are:

     (1)  a clerical error, mistake of fact, or other
     inadvertence exists;

     (2)  the clerical error, mistake of fact, or other
     inadvertence is manifest from the record or established by
     documentary evidence; and

     (3)  the clerical error, mistake of fact, or other
     inadvertence is brought to the attention of Customs within
     the time requirements of the statute.

(See PPG Industries, Inc. v. United States, 4 CIT 143, 146
(1982).)  Even if the alleged failure to deduct "C&F" charges
from the invoice total in this case qualifies as a clerical
error, mistake of fact, or other inadvertence (which we doubt,
see PPG Industries, id., 4 CIT at 147, and Hambro Automotive
Corp. v. United States, 66 CCPA 113, 118, 603 F. 2d 850 (1979)),
it is not "manifest from the record or established by documentary
evidence."  According to the Court in PPG Industries, id.,
quoting in part from the lower court in Hambro, id, (Hambro
Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, 458 F.
Supp. 1220, C.D. 4761 (1978)):

        ... it is incumbent on the plaintiff to show by
        sufficient evidence the nature of the mistake of
        fact.  The burden and duty is upon the plaintiff
        to inform the appropriate Customs official of the
        alleged mistake with "sufficient particularity to
        allow remedial action."  [4 CIT at 147-148,
        emphasis added; see also, United States v.
        Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), in
        which the Court stated "[d]etermination of issues
        in customs litigation may not be based on
        supposition."]

     In the absence of sufficient evidence establishing the
amount of the freight charge, the protest must be DENIED.

HOLDINGS:

     (1)  A protest is timely filed when it is filed within 90
days of the denial of a petition filed under 19 U.S.C. 1520(c)(1)
to reliquidate an entry, even though the protest is not filed
within 90 days of the original liquidation of the entry or the
reliquidation (pursuant to an earlier timely petition filed under
19 U.S.C. 1520(c)(1)) of the entry.

     (2)  The evidence submitted in this case was insufficient to
grant the petition filed under 19 U.S.C. 1520(c)(1), the denial
of which is the subject of this protest.  The protest is DENIED.

                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division