us-cbp-cross-rulings-hq-082496•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.
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.
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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--
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(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
6cc: AD NY Seaport
LSchrieber gc/6/7/89
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