HQ 220962: Application for further review of Protest No. 1001-6-000630 under 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 220962

                         March 13, 1991

LIQ-9-01-CO:R:C:E  220962 CB

CATEGORY:  Entry/Liquidation

Regional Commissioner
U.S. Customs Service
New York Region
Suite 716
6 World Trade Center
New York, New York  10048-0945

RE:  Application for further review of Protest No. 1001-6-000630 
     under 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 points raised and our
decision follows.

FACTS:

     Protest has been filed against the Customs Service denial of
a request for reliquidation of the subject entries, pursuant to
19 U.S.C. 1520(c)(1).

     Per the record, women's leather handbags made of American
components assembled in Haiti were imported between the period of
August, 1983 and January, 1984.  Allowance for duty was claimed
under the provisions of TSUS item 807.00, free of duty (articles
assembled abroad of U.S. components).  Protestant states that the
requisite assembler's declaration was submitted with each entry
pursuant to 19 CFR 10.11(b) and 10.24.  The entries were
liquidated during the period of June and July, 1984 disallowing
the importer's claim for item 807 allowance.  

     According to protestant, the responsible import specialist
informally advised protestant that the reason for denial of 807
allowance was the absence of any supporting documentation
submitted with the entry.  The import specialist claimed that no
"work boards" were submitted after repeated requests for
information on CF 28's and notices of proposed rate advances on
CF 29's.  Customs records indicate that the notices were sent to
the importer on November 9, 1983 and January 10, 1984 for several
of the entries.  On December 12, 1984, protestant's
representatives visited the responsible commodity specialist team
regarding the classification of the merchandise.  Subsequently,
the information which was apparently requested on the CF 28 was
received by Customs on or about December 18, 1984. 
                               -2-


     On January 22, 1985, a request for reliquidation of the
subject entries was filed.  In the request, the importer alleged
that there were no CF 28's or CF 29's in the Customs Service
files on the subject entries.  Moreover, the importer claimed
that it never received any request for additional information. 
An affidavit to that effect, from the importer's Import-Export
Manager, was submitted with the request.  The importer contended
that it submitted all of the documentation required by 19
CFR 10.24.  According to the importer, it received a CF 29 on
June 7, 1984, indicating a proposed rate advance on six entries
not the subject of this protest.  The importer provided the
documentation requested and item 807 allowance was approved.  The
request for reliquidation of the subject entries was denied on
January 2, 1986.  

     A protest and supplement were filed on January 14, 1986 for
refusal to reliquidate under 19 U.S.C. 1520(c)(1), alleging that
there is a reasonable presumption that no CF 28's or CF 29's were
ever mailed; and, that the mistake of fact was based on the
assumption that the importer received the requests for
information and negligently failed to respond.  

ISSUE:

     Whether liquidation of the subject entries 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 of 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 514 of the Tariff Act of 1930, as amended (19 
U.S.C. 1514 (1982 & Supp. 1985)), sets forth the proper procedure
for an importer to protest the classification and appraised value
of its merchandise when it believes Customs has misinterpreted
the applicable law and incorrectly classified the imported
merchandise.  Section 514 makes the tariff treatment of goods
final and conclusive, unless the classification is protested
within ninety days of liquidation. -3-


     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 contends that denial of item 807 allowance
because of failure to furnish additional information is a mistake
of fact remediable under 1520(c).  In support of its contention,
protestant cites Lester Engineering Company v. United States, 3
Ct. Int'l Trade 236 (1982), wherein the Court of International
Trade rejected the argument that a determination of constructed
value involved a construction of law so as to preclude the
applicability of 1520 (c)(1).  We disagree with protestant's
interpretation of the holding in Lester Engineering.  In said
case, the court concluded that under the circumstances "it would
be premature...to decide whether any error or mistake in the
appraisement is of the type that is remedial under section
1520(c)(1)."  Lester Engineering 3 Ct. Int'l Trade at 240.  In
other words, the court merely concluded that it required
additional evidence before it could determine whether the alleged
error was remediable under 1520 (c)(1).

     According to protestant, CF 28's and 29's were never
received for the subject entries.  An affidavit to that effect,
from the importer's Import-Export Manager, was submitted with the
request for reliquidation.  Protestant contends that since such
notices were never received, there is a presumption that they
were never mailed.  "[T]he failure to receive a notice through
the mail raises a presumption that it was not mailed."  F.W.
Myers & Co., Inc. v. United States, 6 Ct. Int'l Trade 215, 574 F.
Supp. 1064 (1983), citing Orlex Dyes & Chemicals Corp. v. United
States, 41 Cust. Ct. 168, 170, 168 F. Supp. 222, 229 (1958).  In
F.W. Myers the court held that when non-receipt has been
established, the burden of proof to demonstrate the fact of
mailing shifts to the defendant.  In the instant protest, the
Customs Service has met its burden.  Copies of the CF 28's and CF
29's have been produced.  The Myers court found that the
Government witness made conflicting statements as to whether the
documents were mailed.  That court also found that an examination -4-


of the Government's master file revealed no indication of
mailing.  Here, the District retained file copies of the mailed
documents which distinguishes the Myers case from the present
situation.

     Additionally, protestant contends that it submitted all of
the documentation required by 19 CFR 10.24 to support the
elements of item 807 allowance and that it would be improper to
request further information.  However, we must point out that
under Part 152-Classification and Appraisement of Merchandise-
the Customs Service may request additional information.  More
specifically, 19 CFR 152.2 provides that if "the district
director believes that the entered rate or value of any
merchandise is too low, ...he shall promptly notify the importer
on Custom Form 28...."  CF 28 is titled "Request for
Information."  Therefore, the Customs Service has the authority
to request any additional information required to properly
appraise merchandise.  

     Protestant also alleges that Customs could not lawfully rate
advance entries for failure to respond to information requested
because this is in violation of the holding in Ashland Chemical
Co. v. United States, 7 Ct. Int'l Trade 362 (1984).  In Ashland,
the court held that the appraisement of merchandise solely based
on failure to supply information was arbitrary and not in
accordance with the law.  However, it must be pointed out that,
subsequent to Ashland, the Court of International Trade has held
that denial of duty-free treatment based on importer's failure to
supply the appropriate documents is not in violation of the law. 
The facts in Occidental Oil & Gas Co., v. United States, 23 Cust.
B. & Dec. No. 17, p. 40, Slip Op. No. 89-40 (CIT March 29, 1989),
were similar to the subject protest.  The importer claimed entry
free of duty under item 800 TSUS, at the time of entry.  The
Customs Service notified the importer that supporting
documentation was required.  After the importer failed to provide
the information, the entry was liquidated without the allowance. 
The court concluded that "[t]he record shows that plaintiff had
not supplied the appropriate documents to support its claim. 
Hence, the Customs officer made a legal determination as to the
classification of the merchandise on the basis of the facts
presented."  Therefore, liquidation of an entry at a higher rate
when the importer fails to document its duty rate claim is not an
arbitrary action on the part of the Customs Service nor a
violation of the law.  Rather, it is a legal determination not
subject to reliquidation under 19 U.S.C. 1520(c)(1).
                               -5-



HOLDING:

     The subject protest should be DENIED in full.

     A copy of this decision should be attached to the CF 19
Notice of Action to satisfy the notice requirement of section
174.30(a), Customs Regulations.


                                   Sincerely,




                                   John A. Durant, Director
                                   Commercial Rulings Division