Taban Co. v. U.S., Slip Op. 97-27.
| Decision Date | 25 February 1997 |
| Docket Number | Court No. 94-05-00305.,Slip Op. 97-27. |
| Citation | 960 F.Supp. 326 |
| Parties | TABAN COMPANY, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Stedina & Deem (Charles P. Deem), Rahway, NJ, for plaintiff.
Frank W. Hunger, Assistant Attorney General of the United States, Washington, DC; Joseph I. Liebman, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (Mikki Graves Walser), Beth C. Brotman, Office of the Assistant Chief Counsel, United States Customs Service, New York City, of counsel, for defendant.
This case is before the Court on cross-motions for summary judgment pursuant to U.S. CIT R. 56. Plaintiff, Taban Company ("Taban"), challenges the United States Customs Service's ("Customs") denial of its request pursuant to 19 U.S.C. § 1520(c)(1) (1988) for reliquidation of four entries of stereos. Plaintiff contends the four entries were classified under the wrong tariff provision due to a mistake of fact by plaintiff's broker and due to a subsequent mistake of fact by Customs as to the physical nature of the merchandise in question. Plaintiff seeks reclassification and reliquidation of the merchandise under 8527.31.40, HTSUS at the duty rate of 3.7% ad valorem, a refund of the excess duty paid, as well as interest as provided by law.
Defendant contends plaintiff has not demonstrated any mistake of fact involving Customs or plaintiff's broker, but only a mistake in the construction of law, which is not remediable by the section of the statute under which plaintiff brings this action. As a result, defendant requests this Court deny plaintiff's motion, grant defendant's cross-motion and dismiss the action. This Court has jurisdiction under 28 U.S.C. § 1581(a) (1994) and this action is before the Court for de novo review under 28 U.S.C. § 2640(a)(1) (1994). For the reasons which follow, this Court grants in part and denies in part plaintiff's motion for summary judgment and grants in part and denies in part defendant's cross-motion for summary judgment.
At issue are four entries of Sony Brand Home Stereos, Model Numbers FH-636CD FH-838CD, and FH-B150, , consisting of dual tape cassette combination stereos, each of which incorporates a tape player incapable of recording. The following chart lists the entries of the merchandise, as well as their dates of entry and liquidation.
Entry Number Entry Date Liquidation Date
917-0024093-9 03/12/92 07/17/92
917-0024311-5 03/14/92 07/17/92
917-0024494-9 04/07/92 07/24/92
917-0025583-8 07/25/92 11/13/92
Plaintiff relies on the following provisions of the Harmonized Tariff Schedules of the United States ("HTSUS"):1
8527 Reception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting
whether or not combined, in the same housing, with sound recording or reproducing
apparatus or a clock
Other radiobroadcast receivers, including apparatus capable of receiving also
radiotelephony or radiotelegraphy
8527.31 Combined with sound recording or reproducing apparatus:
8527.31.05 Articles designed for connection to telegraphic or telephonic
apparatus or instruments or to telegraphic or telephonic networks
...
Other:
8527.31.40 Combinations incorporating tape players which are incapable
of recording ... 3.7%
Defendant relies on the following HTSUS provision:
8527 Reception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting,
whether or not combined, in the same housing, with sound recording or reproducing
apparatus or a clock:
Radiobroadcast receivers capable of operating without an external source of
power, including apparatus capable of receiving also radiotelephony or
radiotelegraphy:
....
8527.11 Combined with sound recording or reproducing apparatus:
....
8527.19.00 Other ... 6%
8527.31.50 Other combinations incorporating tape recorders ... 4.9%
C. Customs Service Classification
Aspen Forwarders & Customs House Brokers, Incorporated ("plaintiff's broker" or "broker") entered the merchandise at issue on behalf of plaintiff under subheading 8527.19.00, HTSUS, the provision which covers radiobroadcast receivers capable of operating without an external source of power. Customs subsequently classified and liquidated the merchandise pursuant to that subheading and imposed duties at the rate of 6% ad valorem.
D. Plaintiff's Request for Reliquidation
On August 7, 1992, Customs issued Headquarters Ruling ("HQ") 950882, which changed the classification and thereby reduced the rate of duty imposed on dual cassette stereo combinations. HQ 950882 stated certain combination stereos with AM/FM radio, incorporating dual cassette decks with tape players incapable of recording, were classifiable under subheading 8527.31.40, HTSUS and dutiable at 3.7% ad valorem. Prior to this headquarters ruling, Customs had classified such merchandise as "other combinations incorporating tape recorders" under subheading 8527.31.50 pursuant to HQ 087179, which did not distinguish between combination stereos incorporating tape players capable or incapable of recording and which assessed a duty of 4.9% ad valorem. (Mem. in Opp'n to Pl.'s Mot. for Summ. J. & in Supp. of Def.'s Cross-Mot. for Summ. J. ("Def.'s Br.") at 12-13.)
Customs officials handling the subject merchandise at the port of New York were aware of the pending or actual issuance of HQ 950882 prior to or within ninety days after liquidation of plaintiff's merchandise, , but were unaware prior to plaintiff's requests for relief under 19 U.S.C. § 1520(c)(1) (1988) that plaintiff's merchandise consisted of articles covered by the ruling. (Pl.'s Stmt. ¶ 7.)
By letters dated July 16, 17, 20 and 27, 1993, more than ninety days but less than one year after the dates of liquidation, plaintiff's broker filed timely requests for reliquidation pursuant to 19 U.S.C. § 1520(c)(1) (1988), claiming the subject merchandise had been entered under the "wrong harmonized number," and requesting the merchandise be reliquidated under subheading 8527.31.40, HTSUS with duties assessed at a rate of at 3.7% ad valorem. (Def. Br. at Exs. 1, 4, 7, 9.) Plaintiff claimed its broker and Customs made mistakes of fact as to the physical nature of the stereos and did not know the merchandise consisted of dual tape combination stereos, each of which incorporated a tape player which was incapable of recording.
By letters dated August 25 and August 26, 1993, Customs denied plaintiff's requests for reliquidation, determining "there is no clerical error, mistake of fact, or other inadvertence correctable under Section 520(c)(1)." (Def.'s Br. at Exs. 2, 5, 10.) Customs indicated the subject of plaintiff's claim fell within the scope of Section 514 of the Tariff Act of 1930, as amended, but as plaintiff had not filed its reliquidation requests within the ninety-day time limit prescribed by Section 514, Customs indicated it could not afford plaintiff review under that section of the statute. (Def.'s Br. at 2-3.) After Customs' denial of plaintiff's timely protests of Customs' refusal to reliquidate, plaintiff commenced this action, challenging Customs' refusal to reliquidate the entries of the merchandise in question under 19 U.S.C. § 1520(c)(1) (1988).
Plaintiff contends its broker, Cecilia Smith, was mistaken as to the physical nature of the subject merchandise, and as a result, incorrectly entered the merchandise under subheading 8527.19.00, HTSUS, instead of under subheading 8527.31.40, HTSUS. (Pl.'s Br. at 4.) Plaintiff explains its broker mistakenly believed the imported merchandise consisted of battery-operated, portable, radiobroadcast receivers not combined with sound recording or reproducing apparatus, as described in 8527.19.00, whereas the imports actually operate on alternating current (AC), are not battery operated and are nonportable radio broadcast receivers combined with sound recording or reproducing apparatus, i.e., dual cassette tape decks, which incorporated tape players incapable of recording, as described in 8527.31.40.2 (Id). Plaintiff argues "had the parties been aware of the true physical nature of the imports at the time they took action," the imports would have been entered under subheading 8527.31.50, HTSUS, dutiable at 6% ad valorem.3 .) Plaintiff adds considering the limited description of the imports, the broker's mistake "seems reasonable." (Pl.'s Br. at 4.) Plaintiff acknowledges mistakes of law are "correctable only by timely protest," (id. at 5), but argues in this case, the broker "did not make any erroneous conclusion of law," but rather, drew the correct legal conclusion "[b]ased on the facts as she mistakenly understood them to be." (Id. at 4.) As a result, plaintiff argues subsequent to the expiration of the time limit for protesting the liquidations, but within one year after liquidation of the entries, the broker learned of the true nature of the goods and filed timely requests for relief under 19 U.S.C. § 1520(c)(1) (1988), by seeking reliquidation of the entries and refund of the excess duties that had been paid. (Id. at 1-2.)
Plaintiff notes Customs, "[p]resented with the same meager invoice...
To continue reading
Request your trial
-
Ford Motor Co. v. U.S.
...unaware of the physical nature of the imported merchandise and Customs relied on agent to enter good properly); Taban Co. v. United States, 960 F.Supp. 326, 338-39 (CIT 1997) (same); NEC Electronics U.S.A., Inc. v. United States, 13 CIT 214, 217, 709 F.Supp. 1171, 1174 (1989) (no remedy for......
-
Chrysler Corp. v. U.S.
...it to have made a wrong choice between two known, alternative sets of facts (i.e., a decisional mistake). See Taban Co. v. United States, 960 F.Supp. 326, 334 (CIT 1997) ("While ... it is well-established that a determination by the Customs Service that merchandise is covered by a certain p......
-
Black & White Vegetable Co. v. U.S., Slip Op. 00-162.
...... not qualify as an `error in the construction of a law.'"). Defendant, relying on the court's decisions in Taban Co. v. United States, 21 C.I.T. 230, 960 F.Supp. 326 (1997) and Zaki Corp. v. United States, 21 C.I.T. 263, 960 F.Supp. 350 (1997), argues that a mistake of fact is limited to......
-
G & R Produce Co. v. U.S.
...an importer may protest the classification of merchandise when the importer believes Customs has erred. See Taban Co. v. United States, 21 CIT 230, 237, 960 F.Supp. 326, 332 (1997). Section 1520(c)(1) is an exception to the finality of liquidation and permits reliquidation of imported merch......