May 24, 1996
LIQ-9/LIQ-4-01:RR:IT:EC 226774 AJS
Area Director U.S. Customs Service JFK Airport Area Building 77 Jamaica, NY 11430
RE: Internal Advice; 19 U.S.C. 1520(a)(4); 19 CFR 173.4a; Refund of antidumping duties prior to liquidation; HQ 225466; HQ 224652; Clerical error.
This is in reply to your request for Internal Advice of February 27, 1996, filed pursuant to 19 CFR 177.11(b)(2), under your file LIQ-01-K:TC:A1 RS, concerning Thor Air Freight Corp.
(Thor) and 19 U.S.C. 1520(a)(4).
On November 13, 1995, Thor filed an entry concerning ball bearings which was subject to a deposit of antidumping (AD) duties with rates varying based on the manufacturer. The Customs Form 7501, Entry Summary, specified the appropriate AD case number as A588-201-000 with a deposit rate of 45.83% (i.e., all other manufacturers rate). Based on this information, AD duties were deposited at that rate. Regarding this information, Thor simply claims that "we realized that a clerical error was made on the antidumping duty". No specifics were given as to how the claimed error occurred or who was responsible. The invoice indicates that the bearings were manufactured by NTN which is subject to the rate of 13.9% under case number A588-201-009. Since the entry has not been liquidated because the AD case is pending, Thor requested a refund of the overpayment in AD duties prior to liquidation pursuant to 19 U.S.C. 1520(a)(4).
Whether a portion of the subject antidumping duties may be refunded prior to liquidation pursuant to 19 U.S.C. 1520(a)(4).
LAW AND ANALYSIS:
19 U.S.C. 1520(a)(4) states that the Secretary of the Treasury is authorized to refund duties or other receipts prior to the liquidation of an entry or reconciliation, whenever it is ascertained that excess duties, fees, charges, or exactions have been deposited or paid by reason of clerical error. 19 CFR 173.4a provides that pursuant to section 520(a)(4), Tariff Act of 1930, as amended (19 U.S.C. 1520(a)(4)), the district director may prior to liquidation of an entry, take appropriate action to correct a clerical error that resulted in the deposit or payment of excess duties, fees, charges, or exactions.
In HQ 225466 (July 5, 1995), Customs addressed the issue of whether Customs possessed the authority under section 1520(a)(4) to refund AD duties prior to liquidation. In that ruling, the Department of Commerce (DOC) published initial AD duty deposit margins and the protestant deposited duties based on these margins. The DOC subsequently revised these margins due to certain ministerial or clerical errors committed in the calculation of the initial AD margins. Prior to liquidation, the protestant sought a refund pursuant to section 1520(a)(4) for the difference between the initial deposit margins and the revised margins. This office stated that on entries involving AD duties, the Secretary of the Treasury has limited authority. We further stated that under 19 U.S.C. 1677(1), the Secretary of Commerce is responsible for the administration of the AD laws. We concluded that under those laws, the Secretary of Commerce alone was authorized to establish procedures to correct clerical or ministerial errors under the AD laws. We also concluded that under the authority given to the Secretary of Commerce over administration of the AD laws, it would be inappropriate to interpret 19 U.S.C. 1520(a)(4) in a manner to expand on any corrective action taken by the DOC without specific instructions from that Department.
Your internal advice request, however, is factually distinguishable from HQ 225466. This request simply involves a claimed clerical error in the deposit of AD duties by Thor. As unlike the case in HQ 225466, no clerical error was committed which involved the authority of the DOC to set dumping margins. A refund in this instance would simply fall within the authority of Customs to correctly collect the amount of cash deposit equal to the estimated weighted-average margin as instructed by the DOC under such regulations as 19 CFR 353.15(a)(3)(ii), 353.20(a)(3)(ii), and 353.21(b). Therefore, the subject AD duty deposit may be refunded if deposited due to a clerical error pursuant to section 1520(a)(4).
In the subject case, the claimed correct AD duty deposit was 13.9% based on the invoice. However, the actual amount of AD duty deposited was 45.83% based on the claimed use of an incorrect case number. This type of error does not involve the authority of the DOC to set
dumping margins. The subject claimed error simply falls within the authority of Customs to correctly collect the amount of cash deposit as instructed by the DOC. Consequently, the subject AD duty deposit may be refunded to reflect the claimed correct amount if it was in fact deposited due to a clerical error.
In HQ 224652 (August 5, 1993), Customs addressed the issue of the refund of duties prior to liquidation due to a clerical error. In that case, we stated that:
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 P.P.G.
Industries, Inc., v. United States, 7 CIT 118, 124 (1984)., and cases cited therein. In addition, T.D. 54848 provides, "clerical error occurs when a person intends to do one thing but does something else . . . It includes mistakes in arithmetic and the failure to associate all the papers in a record under consideration." In Ruth F. Sturm's Customs Law & Administration (3rd ed.), 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 pp. 5 and 6).
In Example 2 of HQ 224652, an incorrect country of origin (i.e., Singapore) was used by the freight forwarder when the correct country of origin (i.e., Indonesia) was available on the bill of lading. We concluded that this type of error was not a clerical error correctable pursuant to section 1520(a)(4) because the freight forwarder did not intend to write down Indonesia and instead write down Singapore. Rather, we concluded that the freight forwarder incorrectly used the documentation presented to ascertain the country of origin and that this type of error would appear to be a type of inadvertence due to inattention or carelessness which should be addressed under 19 U.S.C.
In the subject entry, Thor simply claims that "we realized that a clerical error was made on the antidumping duty". No specifics were given as to how the claimed error occurred or who was responsible. The individual who prepared the CF 7501 in issue has not been identified nor has that individual explained the factual circumstances that resulted in the error. This is not a situation in which the nature of the error is manifest from the record such as the case in which an error in mathematics in carrying out an extension would be. Based on the definition of clerical error in HQ 224652, Thor has not submitted sufficient information in order for a clerical error determination to be made. This office is unable to determine if Thor intended to deposit AD duties under case number A588-201-009 instead of under case number A588-201-000 or if Thor simply incorrectly used the invoice to ascertain the correct case number and deposit amount. Accordingly, Thor's claim for a refund prior to liquidation pursuant to 19 U.S.C. 1520(a)(4) should be denied based on insufficient evidence.
Insufficient evidence was submitted to determine if the subject entry involves a clerical error entitled to a refund of excess duties prior to liquidation pursuant to 19 U.S.C.
This decision should be mailed by your office to the internal advice requestor no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Director, International Trade Compliance Division