HQ 223753: Protest for further review number 2809-91-101537; Samecondition drawback; clerical error; Certificate of delivery; CF331; 19 U.S.C. 1520(c)(1); 19 U.S.C. 1514(a); Hambro AutomotiveCorp. v. U.S.; PPG Industries Inc. v. U.S.; 19 CFR 191.6(a) &(b); 19 CFR 141(C); T.D. 54848; Sturm's Customs Law &Administration.

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 223753

                        December 29, 1992

DRA-1-01-CO:R:C:E 223753 AJS

CATEGORY: Drawback

District Director
P.O. Box 2450
San Francisco, CA 94126

RE: Protest for further review number 2809-91-101537; Same
condition drawback; clerical error; Certificate of delivery; CF
331; 19 U.S.C. 1520(c)(1); 19 U.S.C. 1514(a); Hambro Automotive
Corp. v. U.S.; PPG Industries Inc. v. U.S.; 19 CFR 191.6(a) &
(b); 19 CFR 141(C); T.D. 54848; Sturm's Customs Law &
Administration. 

Dear District Director:

     This is our decision in protest for further review  number
2809-91-101537, dated 9/13/91, concerning a denial of duty refund
for same condition drawback due to a claimed clerical error. 

FACTS:

     The merchandise at issue was entered by the Campbell Soup
Company.  A same condition drawback entry was filed concerning
the merchandise on 8/17/89.  Queen's Way Foods Co. was designated
as the person authorized to collect drawback.

     The evidence is confusing.  The drawback claim states that
Campbell Soup Company was the importer of record (Customs Form
(CF) 7539, block 7 and 8) and the exporter (CF 7539, block 30). 
The export bill of lading shows that the protestant was the
shipper of the merchandise to Japan.  It is unclear whether
Campbell Soup Company was the exporter, as stated on the CF 7539,
or whether the protestant, Queen's Way Foods, was the true
exporter.  It appears that both the protestant and Customs
assumed that Queen's Way Foods was the exporter. 

     Drawback was denied and the entry was liquidated on 5/11/90
because the CF 331, Certificate of Delivery, was not filed.  On
5/10/91, a request was made pursuant to 19 U.S.C. 1520(c)(1), as
well as a protest against the liquidation of this entry.  The CF
331 was submitted at this time, and it 


                               -2-

was signed by the manager for the Campbell Soup Company.  The
protestant claims that the CF 331 was not previously submitted
because of clerical error.  No specific information, however, was
submitted regarding this claimed clerical error.  This request
was assigned number 2809-91-200174 and denied on 7/02/91.  It was
treated as a request to reliquidate under section 1520(c)(1) and
not as a protest under 19 U.S.C. 1514(a).  

     Protest for further review number 2809-91-101537, 9/13/91,
was subsequently filed against Customs refusal to reliquidate
this entry.  The CF 19 states that a CF 331 signed by a corporate
officer of the Campbell Soup Company would be submitted within 15
days of the filing of this protest.  Our records do not indicate
that another CF 331 has been submitted.

ISSUE:

     Whether the failure to file a CF 331 is a clerical error
which allows for reliquidation under 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

     Initially, we note that both the request for reliquidat-ion
under 19 U.S.C. 1520(c)(1) and the protest of the denial of that
request, under 19 U.S.C. 1514(a), were timely filed.

     19 U.S.C. 1514(a) states that the liquidation or
reliquidation of an entry shall be final and conclusive upon all
persons unless a protest is filed within 90 days, or a civil
action contesting the denial of the protest is commenced in the
United States Court of International Trade within 180 days from
the date of liquidation or reliquidat- ion.  The date of
liquidation in this case was 5/11/90.  Neither a protest was
filed nor a civil action commenced within the required time
periods.  Therefore, Customs liquidation of the subject entry was
final and conclusive upon all persons.

     19 U.S.C. 1520(c)(1), however, is an exception to section
1514.  This provision allows Customs to reliquidate an entry to
correct a clerical error, mistake of fact, or other inadvertence
not amounting to an error in the construction of a law when
certain conditions are met.  These conditions are that the
clerical error, mistake of fact, or other inadvertence must be
adverse to the importer, manifest from the record or established
by documentary evidence, and brought to the attention of Customs
within one year after the date of liquidation of the entry.  
                                

                               -3-

     A request for reliquidation was filed based on a claimed
clerical error due to the protestant's failure to file a CF 331. 
No specifics were given concerning this clerical error.  The
importer of record in this case is the Campbell Soup Company, and
the party requesting reliquidation is Queen's Way Foods.  As
stated previously, section 1520(c)(1) requires a clerical error
to be "adverse to the importer".  It is unclear that the failure
to file the certificate of delivery was adverse to the importer-
Campbell.  Even if it is assumed that the failure to file a
certificate of delivery is somehow an error, mistake or
inadvertence to the importer-Campbell, the available evidence
does not establish that the other statutory elements of 19 U.S.C.
1520(c)(1) were met.

     When a claimed error is not manifest from the record or made
apparent by documentary evidence submitted by the petitioner with
sufficient particularity to allow remedial 
action within the time for filing the petition for relief under
19 U.S.C. 1520(c)(1), relief may not be granted under that
provision.  Hambro Automotive Corp. v. United States, 81 Cust.
Ct. 29, C.D. 4761, 458 F. Supp. 1220 (1978); aff'd 66 CCPA 113,
C.A.D. 1231, 603 F. 2d 850 (1979).; PPG Industries, Inc. v.
United States, 4 CIT 143 (1982).  In this instance, our records
do not indicate that a CF 331 executed by the proper party has
yet been filed.  19 CFR 191.6(a) establishes which persons have
the authority to sign drawback documents.  A Certificate of
Delivery, CF 331, is a document which requires execution in
accordance with this section.  19 CFR 191.6(b).  The manager of
the Campbell Soup Company signed the CF 331.  A manager may sign
the CF 331 if they possess a power of attorney pursuant to 19 CFR
141(C).  No information in the record indicates that this manager
possesses a power of attorney.  Thus, relief may also not be
granted under section 1520(c)(1) based on the fact that the
required documentary evidence was not properly submitted.  

     A "clerical error" has been stated by the Courts to be "a
mistake made by a clerk or other subordinate, upon whom devolves
no duty to exercise judgement, in writing or copying the figures
or in exercising his intention."  See PPG Industries, Inc., v.
United States, 7 CIT 118, 124 (1984), and cases cited therein;
see also, Treasury Decision (T.D.) 54848, wherein an example of a
clerical error is given as:  "[a person] meant to write 'par.
231' but wrote 'par. 131'").  In Ruth F. Sturm's Customs Law &
Administration (3rd Edition), it is stated that "[c]lerical error
has been found where mistakes were made in copying or typing
figures or where figures have been transposed", and a number of
Customs Court decisions are cited for this proposition (section
9.4, at pages 5 and 6).  The record does not indicate that the CF


                               -4-

331 was not filed for any of these types of reasons.  Accord-
ingly, the failure to file a CF 331 does not appear to constitute
a clerical error in this case.

     19 CFR 191.61 states that a drawback entry and all
documentation necessary to complete a drawback claim, including
those issued by one Customs officer to another, shall be filed or
applied for, as applicable, within three 
years after the date of exportation of the articles on which
drawback is claimed.  Claims not completed within the 3 year
period shall be considered abandoned.  No extension will be
granted unless it is established that a Customs officer was
responsible for the untimely filing.  The subject drawback entry
was filed on 8/17/89.  Therefore, the importer had until 8/17/92,
to complete their claim.  As discussed previously, it does not
appear that the necessary documentation has yet been filed.  The
CF 19 states that a CF 331 signed by a corporate officer of the
Campbell Soup Company would be submitted within 15 days of the
filing of this protest.  Our records contain a CF 331 signed by a
manager of the Campbell Soup Company, who does not appear to
possess the proper authority to sign the CF 331.  Consequent-ly,
the subject claim does not appear to have been completed within 3
years as required, and thus must be considered abandoned. 

HOLDING:

     The failure of the protestant to properly file a CF 331
was not a clerical error for which relief may be granted pursuant
to 19 U.S.C. 1520(c)(1).

     The protest is DENIED.  A copy of this decision should be
attached to the Form 19 and provided to the protestant as part of
the notice of action on the protest.


                                 Sincerely,

                            
                                 John Durant, Director
                                 Commercial Rulings Division