HQ 084837: Decision on Application for Further Review of Protest No. 1401-4-000201.

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 084837

                                  November 28, 1990



          CLA-2:CO:R:C:G  084837  SR

          CATEGORY:  Classification

          TARIFF NO.:  700.45

          District Director of Customs
          101 East Main Street
          Norfolk, Virginia 23510

          RE: Decision on Application for Further Review
               of Protest No. 1401-4-000201.

          Dear Sir:

               This protest was filed against your decision in the
          liquidation on June 14, 1983, of entry number 83-128072-7, dated
          May 19, 1983, covering a shipment of shoes manufactured in Korea.

          FACTS:

               The merchandise at issue is footwear.  The footwear was
          entered by the protestant's customhouse broker under item 700.80,
          TSUS, which provides for footwear with uppers of fibers, with
          soles of materials other than leather, other.  The entry
          documents included a commercial invoice that described the shoes
          as containing more than 51 percent leather.

               That description was repeated on the Special Customs Invoice
          (CF 5515).  The description on the Invoice Details for Footwear
          (CF 5523) repeated the statement that "the leather part is more
          than 51 percent."  It was also stated on this form that the
          material in chief value of the upper is leather; and the material
          in chief value of the entire shoe is leather.  It is listed that
          leather comprises 20 percent by weight of the entire shoe and
          that leather comprises 60 percent of the material of the exterior


















                                         -2-

          surface of the upper.  The detailed component value breakdown
          also lists the total material costs as $.82 per pair for leather,
          $.36 per pair for rubber and plastics, and $.48 per pair for
          textiles.

               On October 1, 1984, a protest was filed claiming that a
          clerical error was made and clearly item 700.80, TSUS, is the
          incorrect tariff provision.  The protestant states that because
          the shoe is in chief value of leather it should be classified
          under item 700.45, TSUS, as footwear of leather.

          ISSUE:

                                       ISSUE 1

               Whether the entry should be reliquidated under Section
          520(c)(1).

               Whether the footwear is in chief value of leather.

          LAW AND ANALYSIS:

                                       ISSUE 1

               The statute 19 USC 1520(c)(1), 19 CFR 173.4, provides as
          follows:

                 (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-

                      (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.





















                                         -3-

               In 94 Treas. Dec. 244, 245-6, T.D. 54848 (1959), Customs
          issued a statement containing the following guidelines:

                 Clerical error occurs when a person intends to do one
               thing but does something else, e.g., he meant to write "par.
               231" but wrote "par 131."  It includes mistakes in
               arithmetic and the failure to associate all the papers in a
               record under consideration.

                 Mistake of fact occurs when a person believes the facts to
               be other than they really are and takes some action based on
               that erroneous belief.  The reason for the belief may be
               that a fact exists but in unknown to the person or he may be
               convinced that something is a fact when in reality it is
               not. . . .

                 Inadvertence connotes inattention, oversight, negligence,
               or lack of care.  For example, an article might be
               classified properly under a paragraph providing for it by
               name but through oversight is given a rate different from
               any rate provided under that paragraph.

                 It should be noted that "clerical error, mistake of fact,
               or other inadvertence" are not necessarily mutually
               exclusive terms.  In other words some "mistakes of facts"
               also might be clerical errors or other inadvertence; or some
               "clerical errors" also might be mistakes of fact or other
               inadvertence, and so on.

               In this case it is clear that a clerical or other
          inadvertence did occur.  Therefore, under 520(c)(1),
          reliquidation should be allowed.

                                       ISSUE 2


               The component cost breakdown that was submitted at the time
          of entry indicates that the shoes at issue are in chief value of
          leather.  We have no reason to believe that the information
          submitted is incorrect.  Therefore, Customs must presume that the
          shoes are in chief value of leather.





















                                         -4-

          HOLDING:

               The footwear at issue should be reclassified under item
          700.45, TSUS, as footwear in chief value of leather.

               The protest is allowed.  A copy of this decision should be
          attached to the Form 19 Notice of Action to satisfy the notice
          requirement of section 174.30(a), Customs Regulations.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division