HQ 224440: Application for Further Review of Protest 4909-92-100135; GSP Form A; Incomplete Form; Claimed Inadvertence; 19 U.S.C. 1520(c)(1)

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 224440

                        November 17, 1993

LIQ-9-01-CO:R:C:E  224440 SLR

CATEGORY:  Liquidation

District Director of Customs
U.S. Customs Service
1 La Puntilla Street
Old San Juan, PR  00901

RE:  Application for Further Review of Protest 4909-92-100135;
     GSP Form A; Incomplete Form; Claimed Inadvertence; 
     19 U.S.C. 1520(c)(1)

Dear Sir:

     This is in response to the above-referenced protest forwarded
to this office for further review.  We have considered all of the
points raised and our decision follows.

FACTS:

     On May 8, 1991, the protestant filed a consumption entry made
up of two invoices: invoice F-537 covering gas stoves, and invoice
12396 covering cooking appliance parts.  Protestant claimed GSP
status for all of the merchandise.

     On May 22, 1991, Customs issued a CF 29 to the protestant,
indicating that evidence was needed in order to support the GSP
claim.  On June 13, 1991, Form A's were sent to Customs, and on
July 5, 1991, the merchandise was liquidated fully dutiable without
the benefit of GSP.

     On July 29, 1991, protestant protested the liquidation of the
entry and resubmitted copies of the earlier Form A's which had been
retained in its files.  Customs allowed the protest for the
merchandise covered in invoice F-537.  However, the protest was
denied for the merchandise described in invoice 12396 as the Form
A for that merchandise was incomplete.

     On February 20, 1992, the protestant requested reliquidation
of the subject entry under 19 U.S.C. 1520(c)(1), indicating:

          The subject protest was denied by Customs for
          the reason that the Certificate of Origin,
          Form A, was "Blank" (that is, no "Origin
          Criterion" under column 8 was shown) through
          inadvertence of the seller/manufacturer in
          Mexico.   *    *    *
                              -2-

          The exporter in Mexico was made aware of the
          omission error, and has now produced an
          "Amended" Certificate of Origin, Form A, for
          the merchandise in question, with a completed
          column 8 information.    *    *    *  

     On April 23, 1992, Customs denied the instant reliquidation
petition, indicating that the matter was not considered a clerical
error, mistake of fact, or other inadvertence correctable under 19
U.S.C. 1520(c)(1).  The file indicates that Customs response was
mailed to the wrong address and that protestant did not receive
notice of the denial until October 9, 1992.  

     On November 25, 1992, the subject protest was filed timely
against the section 520(c)(1) denial.  The protestant maintains
that the amended Form A was produced by the seller to complete the
column left blank, "through inadvertence", in the certificate dated
June 13, 1991 (see reliquidation petition dated February 20, 1992). 
It further maintains that the "amended" certificate was filed with
Customs before liquidation became final (19 CFR 10.112).

ISSUE:

     Whether section 520(c)(1) relief is in order in this case.

LAW AND ANALYSIS:

     Section 520(c)(1) of the Tariff Act of 1930, as amended 
(19 U.S.C. 1520(c)(1), provides:

     (c) Notwithstanding a valid protest was not filed, the
     appropriate customs officer 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 the 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 of
          the appropriate customs officer within one
          year after the date of liquidation or
          exaction; . . . .

     Mistakes of fact occur when a person believes the facts to be
other than what they really are and takes action based on that
erroneous belief.  Inadvertence connotes inattention, oversight,
negligence, or lack of care, while clerical error occurs when a 

                              -3-

person intends to do one thing but does something else.  These
errors are not mutually exclusive.  However, errors in the
construction of the law are not correctable under section
520(c)(1).  T.D. 54848 (94 Treas. Dec. 244 (1959).)

     Here, the protestant alleges that the Form A was "Blank" due
to the inadvertence of the seller/manufacturer in Mexico.  An
amended Form A was forwarded with the section 520(c)(1) petition.

     An inadvertence correctable under the statute must be manifest
from the record or established by documentary evidence.  According
to the court in PPG Industries, Inc. v. United States, 4 CIT 143
(1982) (quoting, in part, from the lower court in Hambro Automotive
Corp. v. United States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220,
C.D. 4761 (1978)):

          [I]t 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; see also United States v. Lineiro, 37 CCPA 5, 10,
C.A.D. 410 (1949), in which the court stated "determinations of
issues in customs litigation may not be based on supposition."

     In the instant case, there is evidence as to the claimed
inadvertence on the part of the manufacturer/seller and it is
manifest from the record.  Seller's invoice for no. 12396, dated
April 15, 1991, indicates that the origin of the subject
merchandise is Mexico.  The Form A for this invoice is dated June
13, 1991, and it is apparent that the manufacturer/seller simply
carelessly omitted the column 8 criterion.  

HOLDING:

     There is evidence to establish inadvertence in this case. 
Section 520(c)(1) relief is in order, and this protest should be
allowed.  

     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
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 the mailing of this
decision.  Sixty days from the date of the decision the Office of 



                              -4-

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, Lexis,
Freedom of Information Act and other public access channels.

                                Sincerely,



                                John Durant, Director
                                Commercial Rulings Division