B-115724 August 7, 1953

B-115724: Aug 7, 1953

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New York Gentlemen: Reference is made to your letter of June 1. It is reported by the Bureau of Customs that the merchandise involved was initially entered for consumption under New York consumption entry No. 703501. The estimated duties were then deposited. It is stated by you that the merchandise was refused by your client before it was released from Customs' custody. It is reported that it was thereafter experted under immediate exportation entry No. 14012. A notation to that effect was made on the consumption entry. That in the liquidation of that entry the notation thereon that the merchandise had been exported was overlooked as the result of a clerical error. The entry was liquidated with an assessment of customs duty as deposited.

B-115724 August 7, 1953

H. W. Robinson & Co., Inc. Customs Brokers 15-25 Whiteshall Street New York, New York

Gentlemen:

Reference is made to your letter of June 1, 1953, and enclosures, in which you claim refund of $823.13, reported as representing the estimated duties deposited by you with the Collector of Customs in New York on or about July 14, 1949, on the importation of one case of fancy worsted woven fabrics for the account of your client Guabello, Inc., value at $2,697.

It is reported by the Bureau of Customs that the merchandise involved was initially entered for consumption under New York consumption entry No. 703501, dated July 14, 1949, and the estimated duties were then deposited. It is stated by you that the merchandise was refused by your client before it was released from Customs' custody. It is reported that it was thereafter experted under immediate exportation entry No. 14012, dated November 16, 1949, and a notation to that effect was made on the consumption entry, so that in the liquidation of the latter the estimated duties deposited would be refunded, but that in the liquidation of that entry the notation thereon that the merchandise had been exported was overlooked as the result of a clerical error. As a result, the entry was liquidated with an assessment of customs duty as deposited. No protest having been filed, the liquidation became final in 60 days thereafter. 19 U.S.C.A. 1514.

It is also reported by the Bureau of Customs that had a protest been filed within the statutory period of 60 days, the Collecter of Customs would undoubtedly have reliquidated the consumption entry and refunded the amount deposited. Further, under section 520(c)(1) of the Tariff Act of 1930, as amended, 52 Stat. 1086, 19 U.S.C.A. 1520(c)(1), the Secretary of the Treasury may, notwithstanding a valid protest is not filed, authorize a collector to reliquidate an entry to correct a clerical error in any entry or liquidation discovered within one year after the date of entry, or within 60 days after liquidation when liquidation is made more than ten months after the date of entry. It is reported that had the error been discovered within one year, the entry would have been reliquidated under that provision of law and the amount refunded. Hence, even though you did act file a protest within 60 days under 19 U.S.C.A. 1514, it appears, since the matter involved a clerical error, that had you merely called the matter to the attention of the Collector at any time within a year, appropriate action would have been taken by the administrative office to adjust the matter.

Since the liquidation has became final, there is no basis as a matter of law for refund of the amount involved. However, you ask that the matter be considered under the act of April 10, 1928, 45 Stat. 413, which provides:

"That when there is filed in the General Accounting Office a claim or demand against the United States that may not lawfully be adjusted by the use of an appropriation theretofore made, but which claim or demand in the judgment of the Comptroller General of the United States contains such elements of legal liability or equity as to the deserving of the consideration of the Congress, he shall submit the same to the Congress by a special report containing the material facts and his recommendation thereon."

It thus appears you had a remedy in the form of a protest in the matter, which, however, you failed to pursue within the prescribed time and, further, that notwithstanding you did not file a protest within 60 days, administrative action could have been taken to correct the liquidation had you called attention to it within a year. It has been held consistently by this Office that the cited act of April 10, 1928, may not be employed as a means to revive a claim barred by statutory or regulatory limitation. This rule has been applied in several cases involving claims for the refund of duties where the claimant failed to exercise his remedy of filing a protest within the statutory period, among which is a decision of November 14, 1938, which appears in 18 Comp. Gen. 454, to which your attention is invited, and is controlling in this case.

Accordingly, your request that the claim be reported to the Congress under the cited act of April 10, 1928, must be and is denied.

Very truly yours,

Lindsay C. Warren Comptroller General of the United States