HQ 224809: Protest No. 0201-93-100201; Mistake of Fact; Substitution of Consumption Entry for TIB; 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 224809

                        October 22, 1993

LIQ-9-01-CO:R:C:E 224809 SLR 

CATEGORY: Liquidation

District Director
U.S. Customs Service
Main and Stebbins Streets, PO Bldg. 
P.O. Box 1490
St. Albans, VT 05478

RE:  Protest No. 0201-93-100201; Mistake of Fact; Substitution of
     Consumption Entry for TIB; 19 U.S.C. 1520(c)(1)

Dear Sir:

     The above-referenced protest was forwarded to this office for
further review. We have considered the arguments presented and our
decision follows.

FACTS:

     A temporary importation bond (TIB) was filed under subheading
9813.00.65, of the Harmonized Tariff Schedules of the United States
Annotated (HTSUSA) for the subject merchandise on June 25, 1992.
The merchandise consists of equipment and theatrical effects
exported to Canada from the U.S. for performances by the "Kirov
Ballet" and subsequent return.

     On January 13, 1993, protestant submitted a request for
permission to substitute a consumption entry for the TIB entry
alleging mistake of fact. This request was denied on February 25,
1993. The subject protest was filed on April 30, 1993. Protestant
alleges that a TIB entry was not intended by the importer but, that
due to a misunderstanding, a TIB entry was filed rather than a
consumption entry. Protestant contends that this is a mistake of
fact remediable under 19 U.S.C. 1520(c)(1).

ISSUE:

     Whether a consumption entry may be substituted for a TIB entry
under 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

     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).

     There is no regulatory or statutory authority to grant
protestant the relief sought. The Customs regulations allow for the
substitution of a TIB entry for a consumption entry. Specifically,
19 CFR 10.31(g) provides:

          (g)  Claim for free entry under Chapter 98, . may be made
               for articles of any character described therein
               which have been previously entered under any other
               provision of law and the entry amended accordingly
               upon compliance with the requirements of this
               section, provided. . . or even though released from
               Customs custody if it is established that the
               original entry was made on the basis of clerical
               error, mistake of fact, or other inadvertence within
               the meaning of section 520(c)(1), ....

     Therefore, the regulation is very specific in setting forth
under what circumstances substitution will be permitted.    There
is nothing in the pertinent regulation to indicate that
substitution of a consumption entry for a TIB entry is permitted.

     Protestant contends that, under 19 U.S.C. 1520(c)(1), Customs
has the authority to grant substitution of a consumption entry for
a TIB entry based on mistake of fact. The statutory provision in
question states:

          (c)  Reliquidation of entry

               Notwithstanding a valid protest was not timely
               filed, the appropriate customs officer may, in
               accordance with regulations prescribed by the
               Secretary, reliquidate an entry to correct --
               (emphasis provided)

               (1) a clerical error, mistake of fact, or other
               inadvertence not amounting to an error in the
               construction of the law, ....

TIB entries are never liquidated. 19 CFR 10.31(h). Consequently,
an entry which is never liquidated cannot be reliquidated. The
correct procedure to follow when an importer finds that the TIB
entry was not proper is to so inform the District Director of
Customs.  The bond is then considered as being breached and
liquidated damages are assessed.  The district director will
consider the circumstances when arriving at a decision on whether
or not (and if so, how much) to mitigate the liquidated damages in
relation to duties that would have been payable on the ordinary
consumption entry. HQ 723561/726002 dated August 13, 1984.

HOLDING:

     A consumption entry cannot be substituted for a TIB entry
under 19 U.S.C. 1520(c) (1) since there has been no liquidation.
This protest should be denied.

     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 to the
protestant no later than 60 days from the date of this letter.
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, Lexis, Freedom of
Information Act and other public access channels.

                              Sincerely,

                              John Durant, Director
                              Commercial Rulings Division