HQ 224078: Protest and Application for Further Review No. 3801-91- 103151; mistake of fact; 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 224078

                        November 25, 1992

LIQ-9-01-CO:R:C:E 224078 CB

CATEGORY:  Entry

Assistant District Director
Commercial Operations Division
U.S. Customs Service
477 Michigan Avenue
Detroit, MI 48226-2568

RE:  Protest and Application for Further Review No. 3801-91-
     103151; mistake of fact; 19 U.S.C.  1520(c)(1)

Dear Sir:

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

FACTS:

     The subject merchandise, a blow mold machine and feeder,
were entered on August 8, 1990, and August 15, 1990,
respectively.  The entries were liquidated on November 23, 1990
and November 16, 1990, respectively.  The record indicates that
on November 22, 1990, by way of a "faxmemo" it was brought to
protestant's attention that the subject merchandise was eligible
for Canadian Free Trade Agreement (CFTA) duty treatment.  The
record further indicates in a letter dated January 31, 1991, from
protestant to the exporter, that the parties were aware of the
lack of the required Certificate of Origin back in August of
1990.

     On August 6, 1991, protestant filed a 19 U.S.C.  1520(c)
claim which was denied by Customs.  The subject protest was
subsequently filed.

ISSUE:

     Whether liquidation of the subject entry, without the
benefit of CFTA treatment, was a mistake of fact remediable under
19 U.S.C.  1520(c)(1)?

LAW AND ANALYSIS:

     Section 520(c)(1) of the Tariff Act of 1930, as amended (19
U.S.C.  1520(c)(1)), provides that Customs may correct certain
errors, if adverse to the importer, within one year of the date
of liquidation.  An entry may be reliquidated in order to correct
a clerical error, mistake of fact, or inadvertence not amounting
to an error in the construction a law.  See 19 U.S.C.  1520(c)
(1); 19 CFR 173.4.  Section 520(c) is not an alternative to the
normal liquidation-protest method of obtaining review, but rather
affords limited relief where an unnoticed or unintentional error
has been committed.  See Computime, Inc. v. United States, 9 Ct.
Int'l Trade 553, 554, 622 F. Supp. 1083, 1085 (1985); see also
Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec.
No. 29, p. 38, Slip Op. No. 89-89 (CIT June 27, 1989).

     Section T.D. 54848 describes and distinguishes correctable
errors under  1520(c)(1).  Mistake of fact occurs when a person
believes the facts to be other than what they really are and
takes action based on that erroneous belief.  The reason for the
belief may be that a fact exists but is unknown to the person or
he may believe that something is a fact when in reality it is
not.  Inadvertence connotes inattention, oversight, negligence,
or lack of care while clerical error occurs when a person intends
to do one thing but does something else, including mistakes in
arithmetic and the failure to associate all the papers in a
record under consideration.  These errors are not necessarily
mutually exclusive.  However, errors in the construction of a law
are not correctable under  1520(c).  Those occur when a person
knows the true facts of a case but has a mistaken belief of the
legal consequences of those facts and acts on that mistaken
belief.  94 Treas. Dec. 244, 245-246 (1959).

     Protestant herein asserts a mistake of fact in its failure
to file the Certificate of Origin prior to liquidation.  In C. J.
Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17,
C.D. 4327, 336 F. Supp. 1395 91972), aff'd, sub nom. United
States v. C.J. Tower & Sons of Buffalo, Inc., 61 CCPA 90, C.A.D.
1129, 499 F. 2d 1277 (1974), a mistake of fact was defined by the
United States Customs Court as "a mistake which takes place when
some fact which indeed exists is unknown, or a fact which is
thought to exist, in reality does not exist [see cases cited]. .
. .  A 'mistake of fact exists where a person understands the
facts to be other than they are, whereas a mistake of law exists
where a person knows the facts as they really are but has a
mistaken belief as to the legal consequences of those facts.'" 
C.J. Tower, 68 Cust. Ct. at 22, 336 F. Supp. at 1399 (quoting 58
C.J.S. Mistake, section 832).  Yet, section 1520(c)(1) "is not
remedial for every conceivable form of mistake or inadvertence
adverse to an importer."  Godchaux-Henderson Sugar Co., Inc. v.
United States, 85 Cust. Ct. 68, 69, 74, C.D. 4874 (1980).  Under
the entry processing scheme, it is the protest procedure which
provides for redress of errors in the liquidation of entries. 
Virtually any error in the liquidation can be corrected if
brought to Customs attention within 90 days of the date of
liquidation.  Such redress is not available if the 90-day period
has expired.  It is not the purpose of the reliquidation
provision of 19 U.S.C.  1520(c)(1) to extend the period for
filing objections that are properly adressed under the protest
procedure.  

     The regulations clearly set out under what circumstances the
late filing of free entry and reduced duty documents will be
accepted.  19 CFR  10.112.  As stated in Occidental Oil & Gas Co.
v. United States, 13 CIT 244 (1989), "[i]n construing section
10.112, the court has accepted documentation establishing U.S.
origin after liquidation, only in cases where the liquidation was
timely protested."  13 CIT at 249.  The subject liquidations were
not timely protested.  The record indicates that protestant was
aware of the absence of the Certificates of Origin as early as
August 27, 1990.  The entries were not liquidated until November,
1990 and did not become final until 90 days thereafter. 
Protestant had sufficient time within which to file the required
documentation prior to the liquidations becoming final.  In
Cavazos v. United States, 9 CIT 628 (1985), the court held that
since the plaintiff failed to supply the required documentation,
"the appropriate customs officer made a legal determination as to
the classification of the merchandise on the basis of the facts
presented. . . ."  9 CIT at 631.  Classification of the subject
merchandise is a mistake of law which is not correctable under 19
U.S.C.  1520(c)(1).  

HOLDING:

     Protestant's failure to file the required certificates prior
to the liquidations becoming final is not a mistake of fact
correctable under 19 U.S.C.  1520(c)(1).  As protestant did not
file a protest within 90 days of the date of liquidation, you
should deny this protest in full.

     A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division