**HQ 227364**

**January 11, 1999**

LIQ-9-01/DRA-2-02-RR:CR:DR 227364 SAJ

**CATEGORY:** Liquidation/Drawback

Port Director

U.S. Customs Service

ATTN: Mr. Jayson P. Ahern

P.O. Box 025280

Miami, FL 33102-5280

**RE:** Application for Further Review of Protest No. 5201-96-100640;
Request for Reliquidation; Proper Protest under 19 U.S.C. 1514; 19
U.S.C. 1520(c)(1); 19 U.S.C. 1313; Drawback; Mistake of Fact;
Correctable Error Must be Manifest from the Record or Established by
Documentary Evidence; Defective Certificates of Delivery

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for further
review. We have considered the facts and issues raised, and our decision
follows.

**[FACTS:]{.underline}**

The protestant filed a manufacturing drawback claim on March 14, 1994,
asserting that while it was not the importer of the designated duty-paid
merchandise, it received that merchandise from various importers, who
issued certificates of delivery to the protestant. The claim, on Customs
Form (CF) 331, was signed by the protestant on March 3, 1994.

Section IV of CF 331, which requires the description and identification
of the imported duty-paid merchandise which is to be designated as the
basis for drawback, refers to Attachment 2. The copy of attachment 2 in
the file lists four import entries: 113 -xxxx771-5 (three line items),
032-xxxx142-0(two line items), 113-xxxx728-0(nine line items), and
113-xxxx744-7(five line items).

Block 28 of the CF 331 states that 80,299 gallons of 65 degree brix
orange juice concentrate was the merchandise that was actually used to
produce the export articles. The export articles are described in block
29 of the form as 572, 934 pounds solid of frozen orange juice
concentrate. Block 30 of the CF 331 states that the export articles were
produced from January, 1993 to May, 1993. Attachment 2 to the CF 331
shows that three shipments from import entry 113-xxxx771-5 were received
on November 19 and 20, 1992 and used during the period from the dates of
receipt until January 19, 1993. That attachment shows that the
merchandise covered by the other three import entries that were
designated were received and used as follows:

**[Received]{.underline} [Used]{.underline}**

032-xxxx142-0 November 18, 1992 November 18, 1992 - January 17, 1993

113-xxxx728-0 January 8 - 18, 1993 January 8, 1993 - March 19, 1993

113-xxxx744-7 January 18, 1993 January 18, 1993 - March 19, 1993

In addition, Attachment 2 lists the receipt number of each shipment.

On March 21, 1994, Customs notified the protestant by letter that the
dates of delivery shown on several of the actual certificates of
delivery differed from the dates of receipt listed on Attachment 2. That
letter also informed the protestant that there were no certificates of
delivery for two of the shipments listed on Attachment 2. The letter
provided the protestant with an opportunity to amend the drawback claim.

The broker communicated with Mr. Freeman, President of Citram, with
regards to the certificates of delivery that were requested by Customs.
Customs communicated in writing with Mr. Freeman after he made an
allegation of having sent the amended certificates of delivery to
Customs. Customs had no record of the alleged submission by Mr. Freeman.

On July 15, 1994, Customs notified, by letter, the protestant's agent,
Louis Dreyfus Corp., of the discrepancies between the dates of receipt
and use shown on the certificates and the dates listed in Attachment 2.
The letter listed 11 import entries which involved this discrepancy.
However, only two of those 11 import entries (113-xxxx728-0 and
113-xxxx744-7) appear to be involved with the drawback claim covered by
this protest. The file contains correspondence from the protestant's
customhouse broker to Louis Dreyfus Corp. which contains copies of
apparent amended certificates of delivery that appear to have been
signed by the customhouse broker for the protestant. These copies are
unsigned by the seller, who would have been the person who would have
been responsible for issuing the certificate. Also, the copies cover six
of the nine shipments from import entry 113-xxxx728-0 and three of the
five shipments from import entry 113-xxxx744-7. The date signed by the
customhouse broker is unclear since these appear to be duplicate copies.
There is a typed date on June 16, 1994 and a handwritten notation of
November 9, 1994. Associated with these copies is a Federal Express
shipping label which is dated November 10, 1994 and a letter from the
customhouse broker of the same date which states that Customs cannot
find the package originally sent.

The Customs letter of July 15, 1994 listed six shipments, identified by
shipment quantity, from import entry 113-xxxx728-0 and three shipments,
identified by shipment quantity, from import entry 113-xxxx744-7 which
involved the date discrepancies. The earlier letter of March 21, 1994
does not identify the shipments which involved the discrepancies. The
copy of the March 21, 1994 Customs letter contains a handwritten
notation, apparently initialed by the Customs drawback liquidator on
July 11, 1995, stating "\[N\]o response from Sun Pure. Citram never
provided correct C/D's. Exported 2-93 - 5 -93. Over 3 years."

The protestant alleges that Customs agreed to withhold liquidation of a
number of claims including the subject drawback claim, pending receipt
of this information. However, there is no documentation in the file
substantiating this agreement. The protestant also alleges that the
certificates of delivery were sent to Customs after receiving the July
15, 1994 letter. On January 20, 1995 and February 21, 1995, Customs sent
letters to the president of Citram (Mr. Freeman) and the protestant\'s
broker advising that Customs did not have a record of having received
such documentation. On February 21, 1995, Customs once again requested
valid certificates of delivery for all transfers.

The discrepancies in dates appear as follows for import entry
113-xxxx028-0: The amounts designated for each of the nine shipments are
115,335 liters per shipment on Attachment 2, apparently in single
strength liters, based on a comparison with Attachment 1 to the drawback
claim. Only the front of the certificate of delivery on the shipment
designating 230,904 single strength liters is in the file so that the
date shown in block 66 of the certificate is not available. However,
there is an annotated copy of Attachment 2 which lists the apparent
discrepancies. With respect to the nine shipments designated from import
entry 113-xxxx728-0, the annotations show the date discrepancies as
follows:

February 2, 1993 vice January 8, 1993

January 29, 1993 vice January 13, 1993

February 11, 1993 vice January 15, 1993

Certificate of delivery missing from claim

Certificate of delivery missing from claim

March 17, 1993 vice January 15, 1993

February 24, 1993 vice January 15, 1993

March 4, 1993 vice January 15, 1993

March 4, 1993 vice January 18, 1993

With respect to the five shipments designated from import entry
113-xxxx744-7 the annotation show the date discrepancies as follows:

March 17, 1993 vice January 18, 1993

March 25, 1993 vice January 18, 1993

March 25, 1993 vice January 18, 1993

April 2, 1993 vice January 18, 1993

April 2, 1993 vice January 18, 1993

The copy of the certificate of delivery designating 228,917 single
strength liters from import entry 113-xxxx228-0 also is the front page
so that block 66 is not shown. The copy of the certificate of delivery
designating 115,717 single strength liters from import entry
113-xxxx228-0 is complete and shows a February 11, 1993 delivery date in
blocks 63 and 66. The copy of the certificate of delivery designating
115,661 single strength liters from import entry 113-xxxx228-0 is
complete and shows a March 17, 1993 delivery date in blocks 63 and 66.
The copy of the certificate of delivery designating 231,322 single
strength liters from import entry 113-xxxx228-0 is complete and lists a
delivery date of March 4, 1993 in blocks 63 and 66. The copy of a second
certificate of delivery designating 115,717 single strength liters from
import entry 113-xxxx-228-0 is complete and lists a delivery date of
February 24, 1993.

There are three complete copies of certificates of delivery involving
import entry

113-xxxx744-7 which list the following dates in blocks 63 and 66:

March 17, 1993 (116,193 single strength liters);

March 25, 1993 (230,503 single strength liters); and

April 2, 1993 (923,720 single strength liters).

The file also contains amended certificates of delivery. The amended
certificate corresponding to the designation of 230,904 single strength
liters from import entry 113-xxxx728-0 asserting delivery dates from
January 1 - 17, 1993 is signed by Citram's President on March 21, 1996.

The amended certificate corresponding to the designation of 228,917
single strength liters asserting delivery dates from January 1 - 17,
1993 is signed March 2, 1996. The amended certificates covering the
remainder of the disputed designations of single strength liters of
115,717, 115,661, 115,717, and 231,322 are also signed March 21, 1996.
Similarly, the amended certificates covering the disputed designations
from import entry 113-xxxx744-7 were signed March 21, 1993.

The requested documentation was not received from either the protestant
or the importer. The protested drawback claim was liquidated July 28,
1995 without any allowance of drawback. [The protestant did not protest
this liquidation under 19 U.S.C. 1514.]{.underline}

Protestant forwarded documentation to Customs on August 9, 14, and 25,
1995. There is a notation in the August 25, 1995 letter that the broker
met with the president of Citram to reconcile the importer\'s records
with the protestant\'s records.

In a letter dated October 20, 1995, the protestant\'s broker requested
Customs to forward a letter dated October 20, 1995 to protestant
regarding the importer\'s certificates of delivery. The letter requested
that the protestant supply new certificates of delivery which contain
the proper dates for receipt and usage and proof that the president of
Citram is allowed to sign documents on behalf of Citram.

There is a letter dated January 30, 1996 in the file to Mr. Tim Hammond,
the account analyst for SunPure, from Customs Miami. The January 30,
1996 letter notifies Mr. Hammond that \"action has been taken regarding
the processing of the pending drawback claims\", and that \"\[n\]o
further action can be taken \... until the necessary information is
received.\"

Customs Miami also sent another letter dated January 30, 1996 to Ms.
Susan Collins, Comptroller of SunPure, Ltd. This letter advices that
Citram\'s amended certificates of delivery received by Customs Miami are
\"not sufficient to accurately demonstrate the needed information found
on the Certificates of Delivery.\" Moreover, Customs Miami in that
letter also requested that all the certificates of delivery be redone
and \"indicate the proper dates for receipt, usage and adequate
signatures along with all other necessary data.\" Customs Miami also
requested the \"legal documentation of the sale of \[Citram\] as well as
verification that Mr. Freeman has the ability to execute documents on
behalf of Citram.\"

In a letter dated March 25, 1996, the protestant enclosed the amended
certificates of delivery which were signed on March 21, 1996. Also
enclosed was a Secretary\'s Certificate for Citram certifying that Mr.
Freeman \"continues to hold of office of President of Citram.\" The
Secretary\'s Certificate was signed on March 20, 1996.

The protestant claims that the entry at issue was inadvertently
liquidated with another drawback claim (claim number AA-0121101-1, which
is not at issue). The protestant also argues that the only change ever
made to the subject drawback claim was to voluntarily change the receipt
date on certain third party importer deliveries, which did not impact
the claim. The protestant cites to Headquarters ruling (HQ) 224417 and
HQ 221080.

The protestant requested by letter dated May 10, 1996 that the drawback
claim be reliquidated with drawback allowed pursuant to 19 U.S.C.
1520(c)(1) alleging the liquidation was erroneous due a mistake of fact.
The mistake of fact asserted was the discrepancy between the dates of
delivery shown on the certificates of delivery and those shown on
Attachment 2 to the drawback claim. The request for reliquidation was
denied by letter dated June 28, 1996. This protest against that denial
was filed August 13, 1996.

**[ISSUE:]{.underline}**

Whether the denial of the request for reliquidation under 19 U.S.C.
1520(c)(1) was proper?

**[LAW AND ANALYSIS:]{.underline}**

A protest against a denial of a request to reliquidate an entry under 19
U.S.C. 1520(c)(1) is a matter covered by 19 U.S.C. 1514(a)(7). Under 19
U.S.C. 1514(c)(3)(B), such a protest must be filed within 90 days after
the date of the decision disputed. In this case, the filing of the
protest on August 13, 1996 against the refusal to reliquidate of June
27, 1996 would be timely.

The key issue is whether 19 U.S.C. 1520(c)(1) covers this situation. We
find that it does not for the following reasons:

19 U.S.C. 1520(c)(1) is an exception to the finality of section 1514.
Under section 1520(c)(1), Customs may 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. The error must be adverse to the
importer and manifest from the record or established by documentary
evidence and brought to the attention of Customs within one year after
the date of liquidation. [The relief provided for under 19 U.S.C.
1520(c)(1) is not an alternative to the relief provided for in the form
of protests under 19 U.S.C. 1514.]{.underline} Section 1520(c)(1) on
affords \"limited relief in the situations defined therein\" ([Phillips
Petroleum Company v. United States]{.underline}, 54 CCPA 7, 11, C.A.D.
893 (1966), quoted in [Godchaux-Henderson Sugar Co., Inc. v. United
States]{.underline}, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), and
[Concentric Pumps, Ltd. v. United States]{.underline}, 10 CIT 505,508,
643 F. Supp. 623 (1986)).

Entries are correctable under 19 U.S.C. 1520(c)(1) which provides:

\(c\) **Reliquidation of entry or reconciliation**

Notwithstanding a valid protest was not filed, the Customs Service may,
in accordance with regulations prescribed by the Secretary, reliquidate
an entry or reconciliation to correct-

> \(1\) a clerical error, mistake of fact, or other inadvertence,
> whether or not resulting from or contained in electronic transmission,
> not amounting to an error in the construction of a law, [adverse to
> the importer]{.underline} 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 Customs Service within [one year after]{.underline}
> the date of liquidation or exaction\...

(Emphasis added.) The regulation implementing section 1520(c)(1) mirrors
the statutory language. [See]{.underline} 19 C.F.R. 173.4(b)(1985).

It is clear that the error must have been brought to the attention of
the Customs Service within one year after the date of liquidation. In
the case at hand, liquidation occurred on July 28, 1995. The
protestant's request of May 10, 1996, was filed May 13, 1996 and would
be timely. However, 19 U.S.C. 1520(c)(1) is not intended to be an
alternative for importers who fail to file timely protests. As stated by
the Court of International Trade in [PPG Industries, Inc. v. United
States]{.underline}, 7 CIT 118, 124 (1984), the following three
conditions must be satisfied under 19 U.S.C. 1520(c)(1): 1) a mistake of
fact must exist; 2) the mistake of fact must be manifest from the record
or established by documentary evidence; and 3) the mistake of fact must
be brought to the attention of the Customs Service within the time
requirements of the statute.

The statute requires that the error which is the subject of the
complaint be adverse to the importer. The import entries and the
certificates of delivery show that Citram, Inc. and Norcam Juice
Products, and not the protestant, Sun Pure, Inc., were the only
importers involved. There is no evidence showing that the liquidation,
even if it was in error, was adverse to either Citram, Inc. or Norcam
Juice Products.

In some cases, the drawback claimant is not the importer of any
merchandise, but is only the exporter of the merchandise, or the
manufacturer or producer of the exported merchandise. In those
situations, the drawback claimant does not meet the requirement of
section 1520(c)(1), since the denial of drawback is not "adverse to the
importer." In this case, the drawback claimant is not the importer of
the merchandise, and therefore does not meet the requirement under
1520(c)(1).

Finally, the protestant has failed to establish any clerical error,
mistake of fact, or other inadvertence caused the failure to complete a
claim within the statutory time limit. As stated above, a mistake of
fact must be manifest from the record or established by documentary
evidence. The CIT has ruled that mere assertion by a complainant without
supporting evidence will not be regarded as sufficient to overturn a
Customs official\'s decision. [Bar Bea Truck Leasing Co., Inc. v. United
States]{.underline}, 5 CIT 124, 126 (1983). In [ITT Corp. v. United
States]{.underline}, 24 F.3d 1384, 1387 (Fed. Cir. 1994), the court
found that reliquidation under 19 U.S.C. 1520(c) requires both notice
and substantiation. Notice of a clerical error, mistake of fact, or
other inadvertence \"with sufficient particularity to allow remedial
action.\" A mistake of fact must be manifest from the record or
established by documentary evidence. [See]{.underline},
[id]{.underline}., (\"Mistakes of fact that are not manifest from
\[the\] record \... must be established by documentary evidence\"). [See
also]{.underline}, [Taban Co. v. United States]{.underline}, 960 F.
Supp. 326 (CIT 1997) (reprinted in Customs Bulletin, March 19, 1997, p.
43), and [Zaki Corp. v. United States]{.underline}, 960 F. Supp. 350
(CIT 1997) (reprinted in Customs Bulletin, April 2, 1997, p. 84).

Clearly, in this case, there is no mistake of fact manifest from the
record. Although the protestant has submitted the necessary documents,
the protestant has failed to explain why the documents were not
submitted in a timely manner, or prior to the expiration of the 3 year
period. The merchandise at issue was exported from March 8, 1993 through
May 24, 1993, and the protestant submitted to Customs the documentation
necessary to complete the drawback claim on March 25, 1996.

The protestant contends that the liquidation of the subject merchandise
with a disallowance for drawback was a clerical error, mistake of fact,
or other inadvertence not amounting to an error in the construction of a
law. This theory is sustainable only if it can be established that a
request to withhold liquidations was made at Customs Miami and some
error or mistake occurred to prevent the withholding. In protestant\'s
attachment for its protest filed in CF 19, the protestant admits that it
\"has no document of agreement withholding liquidation and can only
present circumstantial evidence.\" [See]{.underline} CF 19 (August 13,
1996) p. 4.

The protestant relies on a letter dated October 20, 1995, which is after
the liquidation of the merchandise, and a fax dated December 13, 1995
where the protestant requested Customs to withhold liquidation of the
subject merchandise. There is no evidence to show that Customs Miami
acted on the letter one way or another ([i.e.]{.underline}, denying or
approving the request). Thus, despite the protestant\'s assertions,
[there is no evidence on this record that Customs Miami received a
request to withhold liquidations in any form.]{.underline} Customs Miami
confirmed that there is \"no written evidence that Customs agreed to
withhold liquidation pending \[the protestant\'s\] response.\"
[See]{.underline} Attachment: Reason for Denial of Protest 520196100640.

Another authority cited by the protestant is HQ 221080, which held that
the documentation showed that correctable error was present. In HQ
221080, the documentation clearly indicated that there was an erroneous
omission, and but for that omission, the entry in question would have
received the proper treatment. It was emphasized in HQ 221080 that
\"without this ample evidence, we could not conclude that correctable
error occurred.\" Thus analysis of documentation is crucial in
determining whether correctable error exists. Moreover, the intent of
the person committing the error is considered the essential factor in

determining whether a correctable clerical error or inadvertence
occurred. [Charles Neidert v. United States]{.underline}, 30 Cust. Ct.
189, C.D. 1568 (1953).

We recognize that, in some circumstances, a failure by Customs to
withhold liquidations can be a correctable error under the statute.
[See]{.underline} [Esso Standard Oil Co. v. United States]{.underline},
30 Cust. Ct. 111, C.D. 1506 (1953) (holding that where the record
clearly demonstrates a failure by a Customs official to follow Customs
instruction to withhold liquidation, correctable error exists under the
statute). We emphasize that in [Esso Standard Oil Co.]{.underline},an
intent by Customs to withhold liquidations and a failure to do so is
clearly evident. In the instant case, however, there is [no
evidence]{.underline} of an intent by Customs to withhold liquidations.

It is clear that the statute requires identification and establishment
of a particular mistake, error, or inadvertence. In the absence of
sufficient evidence identifying and establishing the mistake, error, or
inadvertence that occurred, reliquidation cannot be authorized on the
basis of continued liquidations after a withholding request. We submit
that before reliquidation can be authorized, a mistake or error must be
identified in the instant case. Such mistake or error cannot be found
unless it first is established that the request for withholding
liquidation was made by the protestant and received by Customs Miami.
The record fails to establish the foregoing.

In Customs Service Decision (C.S.D.) 79-386, we decided that a failure
to withhold liquidations was an inadvertence correctable under 19 U.S.C.
1520(c)(1). 13 Cust. Bull. 1581 (1979). Two points must be made about
this case. First, the facts of the instant case are distinguishable from
the facts considered in C.S.D. 79-386. In C.S.D. 79-386, there was an
agreement between the importer and Customs that, pending resolution of
the value problem, the importer would increase the transaction value of
the entries by 25%. This establishes that the two parties were engaged
in arms length dealings with one another. Moreover, Customs intended to
withhold liquidations. Given this intention, inadvertence or mistake is
the reason for failure to withhold liquidation.

On the facts of the instant case, it is evident that the protestant and
Customs Miami did not communicate effectively. Unlike C.S.D. 79-386, not
only was there a communication problem involved in the instant case, but
there is no indication on the record that Customs Miami intended but
failed to withhold liquidations due to a mistake or inadvertence.
Consequently, while there was a basis for ruling in favor of the
importer in C.S.D. 79-386, that basis is lacking on the facts of the
case at hand.

The second point to be made about C.S.D. 79-386 pertains to its broad
statement that a disagreement between an importer and Customs as to the
existence of an agreement to withhold liquidations is, without more, a
mistake of fact. As a general proposition, this statement is incorrect
and the C.S.D. was clarified in Headquarters ruling (HQ) 221887, dated
October 8, 1991, which was also cited by the protestant. In HQ 221887 it
was stated that

> \[w\]here a mistake of fact is evident from the facts, and it produces
> a failure to withhold liquidations, one will be recognized; however,
> the mere fact of a disagreement between Customs and an importer as to
> whether or not a request to withhold liquidations had been made is not
> conclusively indicative, by itself, of a mistake of fact. In
> determining whether or not there has been a mistake of fact, or some
> other correctable error, we are limited by the facts of the case.

In the instant case, the evidence is insufficient to establish that
Customs Miami was aware of a request to withhold liquidation. Evidence
demonstrating direct and persistent communication with Customs Miami
during the relevant period is lacking. Evidence establishing that the
protestant and Customs Miami discussed the withholding of liquidation is
lacking. In C.S.D. 79-386 it was evident from the record that Customs
and the broker agreed that some confusion existed regarding a request to
withhold liquidations. On the facts here, Customs Miami makes no such
concessions. Since there is no evidence to the contrary, Customs Miami
was unaware of a request to withhold liquidations, its liquidation of
entries was proper and the bulletin of notices of liquidation, absent
protests, were final and conclusive.

The statute also requires that the error not amount to an error in the
construction of a law. Errors in legal interpretation can be challenged
only by a timely protest under 19 U.S.C. 1514. Correctable errors under
section 1520(c)(1) are defined in T.D. 54848. [See]{.underline} 94
Treas. Dec. 244 (1959). A mistake of fact occurs when a person believes
the facts to be other than what they really are and takes action based
on that erroneous belief. The reason for the belief may be that a fact
really exists but is unknown to the person, or he may believe that
something is a fact when in reality it is not. Clerical errors occur
when a person intends to do one thing but instead does something else,
including mistakes in arithmetic and the failure to associate all the
papers in a record under consideration. Inadvertence connotes
inattention, oversight, negligence, or lack of care. These errors are
not necessarily mutually exclusive. However, errors in the construction
of a law are not correctable under this section. "Those occur where the
facts are known, but their legal consequences are not known or believed
to be different than they really are." [Executone Information Systems v.
United States]{.underline}, 96 F.3d 1383, 1386 (Fed. Cir. 1996),
[citing]{.underline} [Hambro Automotive Corporation v. United
States]{.underline}, 66 CCPA 113, 118, C.A.D. 1231, 603 F.2d 850 (1979);
[See also]{.underline}, [Degussa Canada Ltd. v. United
States]{.underline}, 87 F.3d 1301 (Fed. Cir. 1996). Inadvertence has
been defined as "an oversight or involuntary accident, or the result of
inattention or carelessness, and even as a type of mistake" [Aviall of
Texas, Inc. v. United States]{.underline}, 70 F.3d 1248, 1250 (Fed. Cir.
1995), citing [Hambro]{.underline} supra). Customs has held that the
submission of incorrect or incomplete documentation and failure to
submit, or late submission, of "correct" documentation are not
correctable errors under 19 U.S.C. 1520(c)(1).

In this case, the Customs drawback officer identified the discrepancy by
letter dated March 21, 1994. The available evidence shows that there was
a discrepancy between the dates.

If the later dates shown on the certificates of delivery were the
correct dates, receipt of the imported merchandise after the date of the
manufacture of the exported articles would not meet the terms of the
relevant drawback law, 19 U.S.C. 1313(b) which, in pertinent part,
provides:

> If imported duty-paid merchandise and any other merchandise (whether
> imported or domestic) of the same kind and quality are used in the
> manufacture or production of articles within a period not to exceed
> three years from the receipt of such imported merchandise by the
> manufacturer or producer of such articles, there shall be allowed\..."

The words "within a period not to exceed three years [from the receipt
of such imported merchandise by the manufacturer or producer of such
articles]{.underline}\..." show that if the exported articles were
produced before the manufacturer or producer received the designated
imported merchandise there could be no compliance with the statute. The
Customs Service, by that same letter, notified the protestant that two
certificates of delivery were missing. The failure to include those
certificates of delivery would be contrary to 19 C.F.R. 191.65(a)(1993
ed.). The same requirement is now set forth in 19 C.F.R. 191.10(c), as
amended by T.D. 98-16.

By the letter of July 15, 1995, Customs informed the protestant that the
discrepancy between the dates was not satisfactorily explained. By the
letter of August 9, 1995, from Citram's President, Customs was informed
that the discrepancy was caused by Citram using its invoice date rather
than the delivery date. Moreover, it is clear that additional
submissions raised discrepancies in the amounts designated. The nine
shipments designated from import entry 113-xxxx728-0 compared with the
corresponding amounts shown on the certificates of delivery are as
follows:

Drawback Entry Certificate of Delivery Citram letter of August 9, 1995
AA6-xxxx103-8 Received with a Claim Attached Schedule Dated

Attachment 2 July 26, 1995 Rpt. No. Amount designated Rpt. No. Amt.

1533 115,335 N/A 230,904 1533 115,452

1540 115,335 N/A 228,917 1540 115,452

1545 115,335 N/A 115,717 1545 114,459

1546 115,335 Reported Missing 1546 114,458

1549 115,335 Reported Missing 1549 115,661

1550 115,335 N/A 115,661 1550 115,661

1551 115,335 N/A 115,717 1551 115,717

1552 115,335 N/A 231,322 1552 115,661

1553 115,335 N/A N/A 1553 115,661

The Attachment to Citram letter of August 9, 1995 shows that the amounts
on the certificates received with the claim were calculated as follows:

230,904 = 115,452 (1533) + 115,452 (1540)

228,917 = 114,459 (1545) + 114,458 (1546)

231,322 = 115,661 (1552) + 115,661 (1553)

Assuming that the calculations are correct, it is obvious that the
amount of 228,917 said to be receipts 1545 and 1546 is less than the
corresponding amount of 230,670 (115,335 + 115,335) which was designated
from those shipments on the claim. While the amounts as calculated from
the attachment to the Citram letter of August 9, 1995 exceed the
corresponding calculations asserted on Attachment 2 to the claim, they
do not match them.

The certificates, which are signed by the customhouse broker with the
typed date of June 16, 1994 and the handwritten date of November 9,
1994, do not meet the requirements of former section 191.65(a), Customs
Regulations (1995 ed.) or current section 191.10, Customs Regulations.
The documents fail to bear the signature of the importer who delivered
the goods. The letter of the customhouse broker to Louis Dreyfus shows
that in November, 1994, those parties were aware that Customs lacked
those documents. There is no evidence to show that they were ever filed
with Customs. The handwritten notification on the Customs letter of
March 21, 1994 indicates that the responsible Customs officer was still
waiting to receive certificates that would demonstrate the
manufacturer's compliance with 19 U.S.C. 1313(b).

The fact of the discrepancies and the legal reason underlying the
discrepancies was brought to the attention of the protestant by Customs.
The evidence indicates that the Customs officer was aware of the lack of
certificates which could show compliance with the manufacturing drawback
law when the entry was liquidated. Since even the certificates of August
9, 1995 and March 21, 1996 are not without discrepancies, the
liquidation was not in error due to the filing of correct certificates.
It is not clear that correct certificates exist even now, at least from
the evidence in the file.

The evidence indicates that Customs officers in liquidating the claim
followed the guidelines provided by 19 C.F.R. 191.7(d)(1995 ed.) which
requires Customs to determine the amount of drawback due on the basis of
the complete claim before them. The claim in question has discrepancies
which were brought to the attention of the claimant and there is no
evidence to show that those discrepancies were corrected to the
satisfaction of the Customs officer involved. If a mistake was made by
Customs it would appear to have been a legal error rather than one of
fact. In the instant case, the protestant failed to show that its error
fits within one of the statutory categories as a "clerical error," as a
"mistake of fact," or as some "other inadvertence."

The protestant claims it should be permitted to amend and perfect its
claim by filing corrected Certificated of Delivery. [See]{.underline} p.
3 of CF 19 (August 13, 1996). The protestant cites to HQ 224417
(February 16, 1995), which allowed the importer to verify its claims by
filing properly endorsed certificates of waiver. However, the case for
reliquidation under 19 U.S.C. 1520(c)(1) has not been made. Entries at
Miami were liquidated and bulletin notices were properly posted. The
protest procedure under 19 U.S.C. 1514 provides the statutory remedy to
correct erroneous liquidations is correctable error under 19 U.S.C.
1520(c)(1). The protestant has not established, on the record of this
case, that such an error occurred. On this record, the protest must be
denied. As stated in the FACTS portion of this ruling, the record
reflects a dispute on the dates. The protestant should have protested
before the finality of the Customs liquidation occurred. Moreover,
Customs made a legal determination, not a factual one.

In the instant case, the drawback claimant is not the importer of the
merchandise and therefore does not meet the requirement of section
1520(c)(1). The statute requires that the error which is the subject of
the complaint be adverse to the importer. The import entries and the
certificates of delivery show that Citram, Inc. and Norcam Juice
Products, and not the protestant, Sun Pure, Inc., were the only
importers involved. There is no evidence showing that the liquidation,
even if it was in error, was adverse to either Citram, Inc. or Norcam
Juice Products.

Reliquidation under 19 U.S.C. 1520(c)(1), to correct clerical error,
mistake of fact, or other inadvertence not amounting to an error in the
construction of a law, may be made only when such clerical error,
mistake of fact, or inadvertence is manifest from the record or
established by documentary evidence. The burden of establishing
correctable error is on the petitioner. When the alleged correctable
error is a failure by Customs to withhold liquidation, the petitioner,
in demonstrating that a correctable error occurred, must at least
demonstrate that a request to withhold had been made and was received by
an appropriate Customs officer. Where Customs refutes that a request was
received, and the record lacks sufficient evidence to establish
otherwise, the protest must be denied. Therefore, the denial of the
petition under 19 U.S.C. 1520(c)(1) was proper.

**[HOLDING:]{.underline}**

The protest should be DENIED for the reasons set forth in the LAW AND
ANALYSIS portion of this ruling. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

Director,

Commercial Rulings Division