HQ 221352: Further review of Protest No. 3801-7-002269

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 221352

                          May 14, 1990

LIQ-9-01-CO:R:C:E  221352 GG

CATEGORY:   Liquidation

District Director
U.S. Customs Service
477 Michigan Avenue
Detroit, Michigan 48226

RE:  Further review of Protest No. 3801-7-002269

Dear Sir:

     This is in response to the protest referenced above.

FACTS:

     The protestant, C.J. Tower & Sons of Buffalo, Inc. ("C.J.
Tower"), filed 2 entries on May 29, 1986, and June 2, 1986, on
behalf of its client, Trenton Textile Mills, covering imported
"Blair" and "Lucy" fabric.  The fabric was classified under item
336.64 of the Tariff Schedules of the United States (TSUS), as
woven fabrics, of wool, dutiable at 6 cents per lb. plus 33.8% ad
valorem.  The shipper, Import Customs Services, invoiced both
kinds of fabric as 100% wool, even though the Lucy fabric was
really a 50% wool/50% acrylic blend.
     
     These entries were liquidated "no change" on June 20, 1986,
and July 18, 1986.  On October 20, 1986, Customs received a
letter from C.J. Tower, which stated that the original
classification was erroneous and that the 2 entries should be
reliquidated under item 357.15, TSUS.  This particular tariff
provision covers woven tapestry fabrics and woven upholstery
fabrics, of wool, dutiable at 6 cents per lb. plus 7% ad valorem. 
A reliquidation under this item number would result a in a
$5840.76 refund of duties paid.  The October 20, 1986, letter,
which came to Customs' attention more than 90 days after the date
of both liquidations, was treated as a request for reliquidation
under section 520(c)(1) of the Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1)).  However, because no clerical error, mistake
of fact or inadvertence not amounting to an error in the
construction of a law was brought to Customs' attention, the
request was denied.

     Customs afforded C.J. Tower the opportunity to resubmit the
19 U.S.C. 1520(c)(1) request with additional information, and the
company subsequently sent in several letters and samples, whose
purpose was to convince Customs that the fabric should have been
classified as upholstery fabric, which, as stated earlier, is
subject to a substantially lower rate of duty.  Again, Customs
denied relief, and on August 31, 1987, informed C.J. Tower that
it should have protested the classification issue under the
protest procedures outlined in section 514 of the Tariff Act of
1930, as amended (19 U.S.C. 1514).

     C.J. Tower filed the protest at issue on November 30, 1987,
against Customs' refusal to reliquidate under 19 U.S.C.
1520(c)(1).

ISSUE:

     Whether relief may be granted under 19 U.S.C. 1520(c)(1) to
correct an alleged error in the classification of merchandise?

LAW AND ANALYSIS:

     The explanation given by the protestant in support of the
current protest is that Customs erred in refusing to reliquidate
under 19 U.S.C. 1520(c)(1), because there had been a mistake of
fact, inadvertence, or clerical error when C.J. Tower originally
classified the merchandise under item 336.64, TSUS.  C.J. Tower
implies that there was a "factual mistake" or "error" because the
fabric involved was made specifically for use as upholstery
fabric, but was classified under a non-upholstery item number.
  
     The courts have consistently taken the position that an
erroneous classification of merchandise is not a clerical error,
mistake of fact, or other inadvertence within the meaning of 19
U.S.C. 1520(c)(1), but is an error in the construction of a law. 
See, Mattel Inc. v. United States, 377 F.Supp. 955, 72 Cust.Ct.
257, C.D. 4547 (1974); and C.J. Tower & Sons of Buffalo, Inc. v.
United States, 336 F.Supp. 1395, 68 Cust. Ct. 17, C.D. 4327,
affd. 499 F.2d 1277, 61 CCPA 90 (1972).  Here, the only error
alleged by C.J. Tower is one involving the classification of
fabric, which could only have been corrected by the filing of a
19 U.S.C 1514 protest within 90 days of the original liquidation. 
In this regard, it is interesting to note that it appears that
C.J. Tower may have attempted to seek relief by filing a timely
19 U.S.C. 1514 protest; its original request for relief was dated
several days before the 90-day period had expired, however was
not filed with Customs until after the expiration of that period. 
This at least suggests that the importer was cognizant of the
proper avenue of recourse.  It is questionable, however, whether
duties would have been refunded even had the October 20, 1986,
letter been received in time for consideration as a 19 U.S.C.
1514 protest, because the district maintains that the fabric was
classified accurately when originally entered.

     An examination of the documentation submitted with the
protest reveals a possible mistake of fact, but one which should
not be construed as warranting reliquidation under 19 U.S.C.
1520(c)(1).  This involves the shipper's erroneous statement that
both fabrics consisted of 100% wool.  A mistake of fact exists
where a person understands the facts to be other than they are. 
C.J. Tower, 68 Cust. Ct. at 22.  Under this definition, Customs
Import Services might have made a factual mistake when it
invoiced all the fabric as 100% wool, when in fact the Lucy
fabric was a 50% acrylic/50% wool blend.  However, this
particular mistake was immaterial because there is no indication
that the fiber content was a factor that prompted the importer to
classify the fabric under item 336.64, TSUS, as opposed to under
item 357.15, TSUS.  Both a 100% wool fabric and a 50% wool/50%
acrylic blend fabric could have been correctly classified under
either of these two TSUS item numbers.  By way of explanation,
the common descriptive term, "of wool" appears in item 336.64,
TSUS, as well as in item 357.15, TSUS; "of wool" under the TSUS
means that the article is wholly or in chief value of the named
material.  Wool is more valuable than acrylic therefore a 50%
wool/50% acrylic blend fabric would be considered to be "of
wool"; similarly, a fabric consisting totally of wool would also
fall under this term.  Thus, the Lucy fabric would probably have
been classified the same way had it been known that it was a
wool/acrylic blend, instead of 100% wool as listed on the
invoice.  A 19 U.S.C. 1520(c)(1) reliquidation is not justified
on account of this factual mistake because the mistake was not a
factor in deciding to classify, or liquidate, the fabric under
item 336.64, TSUS.

     In summary, the protestant has failed to demonstrate that
there was a clerical error, mistake of fact, or inadvertence in
the entry or liquidation of this merchandise which would warrant
reliquidation under 19 U.S.C. 1520(c)(1).  The error, if any, was
an error in the construction of a law which could only have been
remedied by the filing of a 19 U.S.C. 1514 protest within 90 days
of liquidation.  You are directed to deny the protest in full.

HOLDING:

     An error in the classification of merchandise is correctable
by the filing of a 19 U.S.C 1514 protest within 90 days of
liquidation; relief is not available under 19 U.S.C 1520(c)(1).

                               Sincerely,



                               Jerry Laderberg
                               Acting Director
                               Commercial Rulings Division