HQ 223398: Protest and application for further review no. 3801-1-100186; protest of denial of request for reliquidation under 19U.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 223398

                        December 24, 1991

LIQ-9-01-CO:R:C:E 223398 C

CATEGORY:  Entry/Liquidation

Nicholas R. Devine
Assistant District Director
Office of Commercial Operations
United States Customs Service
Detroit, MI  48266

RE:  Protest and application for further review no. 3801-1-
100186; protest of denial of request for reliquidation under 19
U.S.C. 1520(c)(1)

Dear Mr. Devine:

     This responds to the referenced protest and application for
further review which you submitted by memorandum of July 30, 1991
(PRO-1-CO:CT DA; P1100186/TXTFRISC).  The protest objects to your
denial of PROTESTANT's petition for reliquidation filed under 19
U.S.C. 1520(c)(1).  We have reviewed the record and our decision
follows.

FACTS:

     The facts, as we understand them, are as follows: 
PROTESTANT entered merchandise under a tariff provision subject
to the Automotive Products Trade Act of 1965 (APTA).  Merchandise
subject to the APTA is entitled to duty-free entry in accordance
with General Note 3(c)(iii) of the Harmonized Tariff Schedule of
the United States (HTSUS) (19 U.S.C. 1202).  Under section
10.84(a)(1) of the Customs Regulations, duty-free entry under the
general note is accomplished by submission of a certificate
establishing eligibility for such entry, along with any verifying
documentation deemed necessary.  (The Customs officer may
determine that the certificate is unnecessary.)  19 C.F.R.
10.84(a)(1).  The entry was not accompanied by the certificate,
nor any documentation indicating that the merchandise was
eligible for duty-free entry.  The entry was liquidated "no
change" at a dutiable rate.  More than 90 days after the date of
liquidation, but within one year of such date, PROTESTANT
submitted a letter informing the district director that "the
merchandise should now be reclassified duty free under APTA as
the goods are consigned to an original equipment manufacturer." 
The letter requested that the entry be "liquidated (or
reliquidated)" accordingly and that duty be refunded.  Customs
accepted the letter as a petition for reliquidation under 19
U.S.C. 1520(c)(1) to correct a clerical error, mistake of fact,
or other inadvertence not amounting to an error in the
construction of a law.  Since the letter/petition failed to
allege facts amounting to correctable error under the statute,
you denied the reliquidation request.  Within 90 days of your
denial, PROTESTANT filed the instant protest and application for
further review under 19 U.S.C. 1514(a)(7), asserting that denial
of the reliquidation request was improper.

ISSUE:

     Was PROTESTANT's request for reliquidation under 19 U.S.C.
1520(c)(1) improperly denied?

LAW AND ANALYSIS:

     Under 19 U.S.C. 1520(c)(1), an entry can be reliquidated,
notwithstanding that a protest was not timely filed, where a
clerical error, mistake of fact, or inadvertence not amounting to
an error in the construction of a law occurred and resulted in an
erroneous liquidation.  This procedure is not a substitute for
the protest procedure of 19 U.S.C. 1514, which is available for
reliquidation for any valid purpose, including the correction of
errors of legal construction.  The reliquidation procedure of 19
U.S.C. 1520(c)(1) applies in only limited circumstances: 1) where
there has occurred one of the specified correctable errors; 2)
the error produces results adverse to the importer; and 3) the
alleged error is manifest from the record or established by
documentary evidence.  19 U.S.C. 1520(c)(1).  The burden is on
the party requesting reliquidation to support its petition by
bringing to Customs attention, within one year of the date of
liquidation, the nature of the error, either as it appears from
the record or by submitting documentary evidence.

     When a request for reliquidation under 19 U.S.C. 1520(c)(1)
is denied, such denial can be protested under 19 U.S.C.
1514(a)(7).  Review of a protest so made is limited to
consideration of the denial of the reliquidation request; that
is, was the denial proper or not?  Issues that were not timely
raised during the initial protest period - within 90 days of the
liquidation - cannot later be raised on a protest of a 1520(c)(1)
denial.

     The issue under the instant protest is whether or not
PROTESTANT's 1520(c)(1) reliquidation request was improperly
denied.  We believe that the reliquidation request was properly
denied for failure on the part of PROTESTANT to allege facts that
would indicate that some kind of correctable error occurred
causing an erroneous liquidation.  PROTESTANT failed to bring to
the attention of Customs the nature of the error that allegedly
occurred.  There was no reference to any information or document
already in the record that would establish correctable error; nor
was there submission of evidence tending to establish the error. 
Your denial of PROTESTANT's 1520(c)(1) request was not improper
under the statute.  Key to this determination is the fact that
merchandise that is destined to an original equipment
manufacturer (OEM) is not, by that fact alone, automatically or
necessarily entitled to duty-free treatment under the HTSUS and
regulations.  The entitlement is dependent upon establishment of
eligibility.  An importer cannot simply assert, particularly in
the context of a 1520(c)(1) reliquidation request, that
merchandise is destined to an OEM and expect that such assertion
is sufficient to establish eligibility.  More important, such an
assertion does not, by itself, establish an error correctable
under section 1520(c)(1).

     You have asserted that PROTESTANT failed to provide
documentation to demonstrate that a correctable error under the
statute occurred.  You further asserted that if PROTESTANT had
submitted such documentation, along with evidence that the
merchandise was eligible for duty-free treatment under the APTA,
the 1520(c)(1) reliquidation request would have been granted. 
Contrarily, PROTESTANT asserts that documentation supporting
duty-free entry had been submitted with the 1520(c)(1) request. 

     Upon review of this protest, we are constrained to conclude
that there is no evidence, beyond PROTESTANT's bald assertions,
to establish that appropriately probative documentation was
provided with the 1520(c)(1) request - documentation establishing
either that the merchandise was entitled to duty-free treatment
or that a correctable error had occurred.  One cannot establish
entitlement to duty-free treatment under the APTA by simply
notifying Customs, after entry, that merchandise has been
consigned to an original equipment manufacturer.  More
importantly, one does not establish, by this notification, that
correctable error under section 1520(c)(1) occurred.

     We conclude also that the record reviewed for this protest
does not contain any documentation that would indicate that an
error correctable under the statue occurred or that the
merchandise in question is entitled to duty-free treatment under
the APTA.  Customs, in determining a protest, cannot and will not
assume that allegations are facts.  In a protest under 19 U.S.C.
1514(a)(7), the burden is on protestant to establish that Customs
erred in denying a reliquidation request.

     Given the foregoing conclusions, we must deny the protest on
the basis that your denial of PROTESTANT's 1520(c)(1) request
appears to have been proper under the law and regulations.

HOLDING:

     Customs properly denied PROTESTANT's request for
reliquidation under 19 U.S.C. 1520(c)(1) on the basis that
PROTESTANT failed to allege specific facts demonstrating that an
error correctable under the statute occurred.  The burden is on
the petitioner to establish the error, either as it appears from
the record or by submitting documentary evidence.
 
     Based on the foregoing, you are instructed to deny the
protest and to inform PROTESTANT of this decision in accordance
with 19 CFR 174.30(a).  Please provide PROTESTANT with a copy of
this denial.

                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division