HQ 082496: Application for Further Review of Protest No. 3901-6-001263, dated October 27, 1986, filed by Schenkers International Forwarders, Inc. (Schenkers) on behalf of Deli Design and Development Co., challenging your refusal to reliquidate entry No. 85-781560-0 under 19 U.S.C. 1520(c)(1). This entry, dated August 12, 1985, was liquidated on October 11, 1985.

us-cbp-cross-rulings-hq-082496HQ 082496: Application for Further Review of Protest No. 3901-6-001263, dated October 27, 1986, filed by Schenkers International Forwarders, Inc. (Schenkers) on behalf of Deli Design and Development Co., challenging your refusal to reliquidate entry No. 85-781560-0 under 19 U.S.C. 1520(c)(1). This entry, dated August 12, 1985, was liquidated on October 11, 1985.Guidance

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 082496

                                   March 15, 1989


          CLA-2 CO:R:C:G  082496 LS

          CATEGORY:  Classification

          TARIFF NO.:  TSUS 647.0315


          District Director of Customs
          610 S. Canal Street
          Chicago, Illinois 60607

          RE:  Application for Further Review of Protest No. 3901-6-001263,
               dated October 27, 1986, filed by Schenkers International
               Forwarders, Inc. (Schenkers) on behalf of Deli Design and
               Development Co., challenging your refusal to reliquidate
               entry No. 85-781560-0 under 19 U.S.C. 1520(c)(1).  This
               entry, dated August 12, 1985, was liquidated on October 11,
               1985.

          Dear Sir:

                This is our decision on the above-referenced Application
          for Further Review of Protest which was forwarded to our office
          by your memorandum dated March 16, 1987.

          FACTS:

                The merchandise in question consists of several display
          cases for food products, and parts thereof, used in retail
          stores.  Among the items are:  external refrigerated bakery
          cases, non-refrigerated bakery cases, refrigerated deli cases,
          humid warm cases with heat lamps and cutting board, steam
          distribution equipment, humidification device, heated knife
          holder, and stainless steel work boards.  The importer, Deli
          Design and Development Co., entered all the merchandise under
          item 647.0315, Tariff Schedules of the United States Annotated
          (TSUSA), which provides for hinges, fittings and mountings not
          specially provided for, suitable for use with furniture and
          cabinets, dutiable at the rate of 6.7 percent ad valorem.  The
          entry was liquidated as entered on October 11, 1985.  Customs
          Form 7501 shows that the entered value of the merchandise is
          $136,339.

















                                        - 2 -

                On July 21, 1986, Schenkers, on behalf of Deli Design and
          Development Co., filed a petition requesting reliquidation of the
          entry under 19 U.S.C. 1520(c)(1), which would result in a refund
          of $6,719.21.  Schenkers alleged that, due to "a clerical error
          mistake of fact," the entered value and classification on Customs
          Form 7501 were incorrect.  It argued that the entered value
          should have been $71,044, rather than $136,338.85, and that the
          classification provision for the deli cases should have been item
          661.3560, rather than item 647.03, TSUSA.  Item 661.3560 provides
          for "refrigerators and refrigerating equipment, whether or not
          electric, and parts thereof:  Other, except parts," dutiable at
          the rate of 3.4 percent ad valorem.  The petition filed under 19
          U.S.C. 1520(c)(1) was denied on the basis that the request to
          reclassify the merchandise under item 661.3560 was a matter
          involving a construction of law.  The denial stated that the
          humid warm cases and steam distribution equipment were not
          classifiable in item 661.35, TSUSA.  The denial also stated that
          the invoices reflect that the correct total value is $137,324 or
          $162,324, rather than $71,044 as claimed.

                A protest was filed on October 27, 1986, pursuant to 19
          U.S.C. 1514(a)(7), against the refusal to reliquidate the entry
          under 19 U.S.C. 1520(c)(1).  In the protest Schenkers argued that
          the humid warm cases and non-refrigerated bakery cases should be
          classified in item 684.4850, TSUSA, which provides for "electro-
          thermic kitchen and household appliances:  Other:  Other
          appliances and apparatus:  Other," dutiable at the rate of 4.3
          percent ad valorem," and that the remaining merchandise should be
          classified in item 661.3560, TSUSA.  Schenkers also argued that
          the dutiable value of the merchandise is $108,639.  Based upon
          the claimed changes in classification and value, Schenkers
          asserted that the refund should be $5,214.18.

          ISSUE:

                Did the alleged misclassification of the subject
          merchandise constitute an error correctable under 19 U.S.C.
          1520(c)(1)?

          LAW AND ANALYSIS:

                19 U.S.C. 1520(c)(1) provides:

                     (c) Notwithstanding a valid protest was not
                  filed, the appropriate customs officer may, in
                  accordance with regulations prescribed by the
                  Secretary, reliquidate an entry to correct--















                                        - 3 -

                        (1) a clerical error, mistake of fact, or
                     other inadvertence not amounting to an error
                     in the construction of a law, adverse to the
                     importer and manifest from the record or
                     established by documentary evidence, in any
                     entry, liquidation, or other customs transaction,
                     when the error, mistake, or inadvertence is
                     brought to the attention of the appropriate
                     customs officer within one year after the date
                     of liquidation or exaction;

                A mistake of fact has been defined 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."  C.J.
          Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17,
          22, C.D. 4327 (1972), aff'd, 61 CCPA 90, C.A.D. 1129 (1974).
          Although Schenkers uses the language "clerical error mistake of
          fact," it does not present an argument that a fact existed which
          was unknown to it or that it believed that something was a fact
          when in reality the fact did not exist.  No such mistake of fact
          is manifest in the record or established by documentary evidence,
          as required by 19 U.S.C. 1520(c)(1).

                Instead, Schenkers' argument is directed at the alleged
          incorrect classification and subsequent liquidation of the entry.
          It has been clearly established that a determination by a customs
          officer as to the classification of merchandise is in the nature
          of a conclusion of law.  Mattel, Inc. v. United States, 72 Cust.
          Ct. 257, 262, C.D. 4547 (1974); Fibrous Glass Products, Inc. v.
          United States, 63 Cust. Ct. 62, 65, C.D. 3874 (1969); United
          States v. Imperial Wall Paper Co., 14 Ct. Cust. Appls. 280, 282,
          T.D. 41886 (1926).

                19 U.S.C. 1520(c)(1) itself provides that an error which
          occurs in the construction of a law is not subject to correction
          under that statute.  In both Fibrous Glass Products and United
          China & Glass Co. v. United States, 66 Cust. Ct. 207, C.D. 4191
          (1971), the Customs Court found that the protestants' requests
          for reliquidation under 19 U.S.C. 1520(c)(1) to correct a
          clerical error or mistake of fact were actually attempts to
          correct alleged errors of judgment by the customs collectors in
          classifying the subject merchandise under the wrong provisions of
          the Tariff Act of 1930.  Those errors of judgment were found to
          be mistakes in the applicable law.  The court held in both cases
          that the appropriate remedy was to file a protest under 19 U.S.C.
          1514 within 60 days after liquidation.  Since the protests were
          not filed within the statutory limit, they were dismissed for
          lack of jurisdiction.














                                        - 4 -

                Further, the court noted in C.J. Tower & Sons of Buffalo,
          Inc. v. United States, 68 Cust. Ct. 17, 21, C.D. 4327 (1972) that
          19 U.S.C. 1520(c)(1) is "not an alternative to the normal
          liquidation protest method of obtaining review," but that it
          offers "limited relief" in those situations specifically defined
          therein.  See also Computime, Inc. v. United States, 9 CIT 553,
          556 (1985).

                19 U.S.C. 1514(a) provides that the decisions of customs
          officers which deal with the legality of orders and findings as
          to classification and liquidation are final and conclusive unless
          a protest challenging such decisions is filed within 90 days
          after the date of the notice of liquidation.

                Thus, the appropriate remedy in the instant case was to
          file a protest challenging the classification and liquidation
          within 90 days after the date of the notice of liquidation.
          Since a protest was not filed within the period prescribed by 19
          U.S.C. 1514, Schenkers cannot now raise the issue of improper
          classification by means of a protest against the denial of its 19
          U.S.C. 1520(c)(1) claim.  Schenkers can only raise the issue of
          whether the alleged misclassification was an error correctable
          under 19 U.S.C. 1520(c)(1).  Schenkers has not raised that
          procedural issue.  Nevertheless, we find that the 1520(c)(1)
          claim was correctly denied because, for the reasons discussed
          above, the alleged misclassification was not an error correctable
          under 19 U.S.C. 1520(c)(1).

                As to the protestant's claim regarding the appraised value,
          we are unable to establish legally why any adjustment is in
          order.

          HOLDING:

                Accordingly, the protest should be denied.  A copy of this
          decision should be sent to the protestant along with the Form 19
          Notice of Action.
                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division


















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