HQ 226655: Application for Further Review of Protest No. 2809-95-101659; 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 226655

                              January 19, 1996

LIQ-9-01-RR:IT:EC   226655 GOB

Category: Liquidation/Protest

Port Director of Customs
555 Battery Street
San Francisco, CA 94111

RE:  Application for Further Review of Protest No. 2809-95-101659; 19 U.S.C.    1520(c)(1)

Dear Madam:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the issues raised by your
office and Nikon Precision Inc. (the "protestant").  Our decision
follows.

FACTS:

     The entry at issue was filed on December 26, 1994 (Entry No.
510-734xxxx-x).

     In its protest, the protestant states as follows:

     Pursuant to 19 U.S.C. Sec 1514(a)(7), we hereby protest the
     refusal to reliquidate under 19 U.S.C. Sec 1520(c)(1).  We
     feel that all the conditions under 19 U.S.C. Sec 1520(c)(1)
     have been met.  As far as we know, Customs Headquarters has
     never addressed this factual situation.  This policy is
     remedial in nature, and should be interpreted fairly and
     equitably.

     In its petition for liquidation dated July 25, 1995, the
protestant stated:

     On Friday December 23, 1994, President Clinton signed the
     proclamation implementing the GATT tariff reductions.  As a
     result, the duty rate on subject commodity under HTS
     9010.20.6030 was reduced from 3.7% to duty free.

     Due to the late passage of GATT and therefore, the
     availability of information on the tariff, several
     administrative messages were issued to provide guidelines on
     year-end handling procedures.  There was much confusion in
     interpreting these procedures.  This was acknowledged by
     Customs.

     Administrative Message 94-1380, dated December 29, 1994,
     provided that importers of merchandise entitled to I.D.
     privileges could take advantage of the reduced rates if (1)
     their merchandise was released on or after December 16,
     1994, and (2) entry was made and duties paid in 1995.  As
     the instant merchandise was released on December 26, 1994,
     and duties deposited on January 9, 1995, we respectfully
     believe that the importer is entitled to a refund of
     $71,447.01 per 19 CFR 174.13(c).  Please issue any refund in
     care of Nippon Express U.S.A., Inc. at the address shown
     above.

ISSUE:

     Whether Customs properly denied the protestant's request to
reliquidate the subject entries under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

     We note initially that the protest was timely filed under
the statutory and regulatory provisions for protests, 19 U.S.C.
1514 and 19 CFR Part 174.  The request for reliquidation was also
timely filed pursuant to 19 U.S.C. 1520(c)(1).

     We also note that the refusal to reliquidate an entry under
19 U.S.C. 1520(c) is a protestable issue pursuant to 19 U.S.C.
1514(a)(7).

     Under 19 U.S.C. 1520(c)(1), an entry may be reliquidated to
correct a clerical error, mistake of fact, or other inadvertence
not amounting to an error in the construction of the law.  The
statute provides that the error must be manifest from the record
or established by documentary evidence and brought to the
attention of the appropriate Customs officer within one year from
the date of liquidation.

     Errors "manifest from the record" are those apparent to
Customs from a facial examination of the entry and entry papers
alone.  "Documentary evidence" is all other evidence supporting
the existence of the claimed error.  The importer must inform
Customs of the alleged error with sufficient particularity to
allow remedial action.  The importer must describe in detail the
alleged error and prove that the error was not the result of a
legal error rather than a factual error.  An error correctable
under 19 U.S.C. 1520(c)(1) must be established by the evidence
and cannot be inferred from the circumstances.

     In ITT Corporation v. United States, 24 F.3d 1384, 1387
(Fed. Cir. 1994), the court stated:

     With regard to substantiation,  1520(c)(1) requires the
     importer to establish the asserted inadvertence through
     documentary evidence submitted to the appropriate customs
     officer, unless the inadvertence is manifest from the
     record.  Inadvertences manifest from the record are those
     apparent to Customs from a facial examination of the entry
     and the entry papers alone, and thus require no further
     substantiation.  While clerical errors likely compose the
     majority of such inadvertences, mistakes of fact nonetheless
     also can be manifest from the record that the entry and
     entry papers constitute.  Mistakes of fact that are not
     manifest from such record, however, must be established by
     documentary evidence. 

     In PPG Industries, Inc. v. United States, 4 CIT 143, 147-148
(1982) the court stated (quoting in part from Hambro Automotive
Corp. v. United States, 81 Cust. Ct. 29, 31 (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."

     In United States v. Enrique C. Lineiro, 37 C.C.P.A. 5, 10
(1949), the court stated that "[d]etermination of issues in
customs litigation may not be based on supposition." 

     After a consideration of the subject protest and the
evidence of record, we determine that the protestant has not
established by documentary evidence the occurrence of a clerical
error, mistake of fact, or other inadvertence within the meaning
of 19 U.S.C. 1520(c)(1).  The protestant has not stated whether
it is alleging (a) clerical error; (b) mistake of fact; or (c)
other inadvertence.  Much more importantly, the protestant has
not provided documentary evidence to support such a claim.  

     Further, the occurrence of a clerical error, mistake of
fact, or other inadvertence within the meaning of 19 U.S.C.
1520(c)(1) is not manifest from the record.
  
     Accordingly, the application for further review is denied.

HOLDING: 

     As detailed supra, the protest is 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.  Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the
decision.  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, the Freedom of Information
Act and other public access channels.



                              Sincerely,



                              Director,
                              International Trade Compliance
Division