Zaki Corp. v. United States

Opinion Carman, Chief Judge: This case is before this Court on cross-motions for summary judgment pursuant to U.S. CIT R. 56. Plaintiff, Zaki Corporation (“Zaki”), 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 seven entries of stereos. Plaintiff contends the seven entries were classified under the wrong tariff provision due to a mistake of fact by plaintiffs 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, 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 plaintiffs broker, but only a mistake in the construction of law, which is not remediable in the section of the statute under which plaintiff brings this action. As a result, defendant requests this Court deny plaintiffs 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 plaintiffs motion for summary judgment and denies defendant’s cross-motion for summary judgment. Background A. Subject Merchandise: At issue are seven entries of merchandise invoiced as (1) Hi Fi Component System, Model Numbers FH-411R, FH-B50CD, FH-E636CD, FH-E737CD, FH-B150, FH-B170 and FH-E838CD; Hi Fi Audio, Model Numbers FH B-50 CD, FH 411R and FH 636 CD; (3) Sony Home Brand Stereo, Model Number FHB150; (4) E858 Mini Compo and (5) E656 Mini Compo (Pl.’s Stmt, of Mater. Facts Not in Issue (“Pl.’s Stmt.”) at ¶ 2; Def.’s Resp. ¶ 2), consisting of dual tape cassette combination stereos, each of which incorporates a tape player incapable of recording. (Pl.’s — 265 — Stmt. ¶ 4; Def.’s Resp. ¶ 4.)1 The following chart lists the entries of the merchandise, as well as their dates of entry and liquidation: Entry Number Entry Date Liquidation Date 917-0024666-2 4/21/92 8/14/92 917-0025277-7 6/14/92 10/23/92 917-0025702-4 8/4/92 11/27/92 917-0025850-1 8/11/92 12/4/92 917-0025981-4 8/17/92 12/11/92 917-0026033-3 8/31/92 1/22/93 917-0027148-8 12/08/92 3/26/93 B. Statutory Provisions: Plaintiff relies on the following provisions of the Harmonized Tariff Schedules of the United States (“HTSUS”):2 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 radiotelepho-ny 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% — 266 — 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 radiotele-phony or radiotelegraphy: 8527.11 Combined with sound recording or reproducing apparatus:^ 8527.11.20 Other: Radio-tape recorder combinations 4.9% >1: * ***** 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 (“plaintiffs broker” or “broker”) entered the merchandise at issue on behalf of plaintiff under subheading 8527.19.00, HTSUS and in the case of one entry 8527.11.20, provisions which cover radiobroadcast receivers capable of operating without an external source of power.3 Customs subsequently classified and liquidated the merchandise pursuant to those subheadings and imposed duties at the rates of 6% ad valorem and 4.9% 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. (HQ 950882 at 2, reprinted in Mem. in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Br.”) at Ex. A.) Prior to this headquarters ruling, Customs had classified such merchandise as “other combinations incorporating tape — 267 — 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 resulted in the assessment of a 4.9% ad valorem duty. (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 1-2 n.l.) 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 plaintiffs merchandise (Pl.’s Stmt. ¶ 6; Def.’s Resp. ¶ 6), but were unaware prior to the requests for relief under 19 U.S.C. § 1520(c)(1) that plaintiffs merchandise consisted of articles such as those covered by the ruling. (Pl.’s St. ¶ 7.) By letters dated July 27, and August 6,1993, more than ninety days but less than one year after the dates of liquidation, plaintiffs broker filed timely requests for reliquidation on behalf of plaintiff pursuant to 19 U.S.C. § 1520(c)(1) (1988) (Pl.’s St. ¶ 8; Def.’s Resp. ¶ 8), 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 3.7% ad valorem. (Def. Br. at Exs. 1-7.) 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 September 9, 1993, Customs denied plaintiffs 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 3.) Customs indicated the subject of plaintiffs 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. (Id.) After plaintiffs timely protest of Customs’ denial of reliquidation, 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). Contentions of the Parties A. Plaintiff: 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, whereas the imports actually operate on alternating current (AC), are not battery operated and are nonportable radio broadcast receivers combined with — 268 — sound recording or reproducing apparatus, i.e., dual cassette tape decks, which incorporated tape players incapable of recording, as described in 8527.31.40.4 (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 .5 Plaintiff adds considering the limited description of the imports, the broker’s mistake “seems reasonable.” (Id. at 4.) Plaintiff acknowledges mistakes of law are correctable “only by timely protest,” (id. at 5), but argues in this case, however, 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 timely filed requests for relief under 19U.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 contends “[t]he same can be said for Customs with respect to their classification/liquidation mistakes here. Presented with the same meager invoice descriptions as confronted the broker, Customs accepted the erroneous entry classification, and liquidated the entries with no corrections or changes.” (Id. at 4.) Plaintiff argues although some of the entries were filed prior to the new headquarters ruling on August 7, 1992, all seven entries were liquidated after that date “with incorrect classifications and duty rates* * *. These mistakes of fact in the liquidations are alone sufficient to warrant reliquidation of the entries as sought by plaintiff. ” (Id. at 5.) Plaintiff argues “the mistakes of fact were adverse to the importer as a matter of law, the applicable rate of duty for * * * Zaki’s imports having beenreduced by then from 6% to3.7%.” (Id.) B. Defendant: Defendant responds plaintiffs claim for reliquidation under 19 U.S.C. § 1520(c)(1) is improper because “Zaki has not demonstrated * * * a ‘mistake of fact’ by either its broker or of Customs.” (Def.’s Br. at 9.) Instead, defendant maintains, “if there was a mistake, it was a mistake which amounted to an error in the construction of law; and therefore is not cognizable under section 520(c)(1).” (Id. at 12.) Defendant further — 269 — argues, “Customs liquidated the entries, and given the information it had at the time, classified the merchandise properly.” {Id.) In addition, defendant adds “it is fundamental that a determination by the Customs Service that merchandise is covered by a certain provision of the HTSUS is a conclusion of law. Therefore, an erroneous classification of imported merchandise is not remediable as a mistake of fact under section 520(c).” {Id. at 13.) (citations omitted). Defendant argues although the Customs Service officers were aware of the existence of HQ 950882 when the entries were liquidated, the importer’s broker had no such knowledge, and “[cjonsequently, Zaki’s broker would likely have entered the merchandise under the liquidated provision even if it had been aware that the merchandise incorporated a tape player incapable of recording because prior to the ruling, classification was the same whether the merchandise had that function or not.” {Id. at 13.) Defendant also argues plaintiff “did not demonstrate any mistake of fact to Customs within one year of liquidation with sufficient particularity to allow remedial action as required by section 520(c)(1).” (Id. at 6.) The letters requesting reliquidation submitted by plaintiffs broker “only alleged that the imported merchandise was entered under the wrong HTSUS provision.” {Id. at 14.) Defendant maintains although copies of the invoices and other descriptive materials were submitted with the imported articles, “none of these documents offered guidance concerning any evaluation of a ‘mistake of fact. ’ Zaki’s documentary evidence established only that there was a possible error in the construction of law * * (Id. at 14r-15 (footnote omitted).) Finally, defendant counters “[i]f the broker was actually mistaken as to the nature of the imported merchandise, it should have made that mistake known to Customs by documentary evidence in a timely fashion.” (Id. at 16 (citation omitted).) In the end, defendant suggests, plaintiffs claim that its broker made a mistake of fact in classifying the merchandise under subheading 8527.19.00, HTSUS, is an attempt to “circumvent the consequences of failing to file a timely section 514 protest.” (Id.) Defendant argues the decision not to reliquidate the merchandise under subheading 8527.31.40, HTSUS, “was due only to the fact that a proper protest had not been filed under section 514.” (Id. at 14-15n.6.) Defendant concludes, plaintiff did not timely provide documentary information concerning factual error, i.e., that the broker was unaware of the nature of the goods at the time of entry or liquidation; rather, it would appear that the broker made a judgment about the classification of these goods, which, it later considered incorrect * * *. [Pjlaintiff is belatedly attempting to transform a legal error into a factual one. (Id. at 17 (citation omitted).) — 270 — Standard of Review The government’s classification decision is presumed to be correct, see 28 U.S.C. § 2639 (a)(1) (1988 & Supp. V), and the party challenging the decision has the burden of overcoming the statutory presumption by a preponderance of the evidence. See St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir. 1993). Where, as here, there are no material facts in dispute and only questions of law remain, plaintiff must show legal error to overcome the presumption of correctness. See Commercial Aluminum Cookware Co. v. United States, Slip Op. 96-135 at 13 (CIT Aug. 13,1996) (citations omitted). If the Court finds, because of evidence or other authority presented by plaintiff, that the presumption has been overcome, this Court must reach the correct classification on its own or after remand to the agency. See Jarvis Clark Co. v. United States, 2 Fed. Cir. (T) 70, 74-75, 733 F.2d 873, 878 (1984). Discussion A. Summary Judgment: This case is before the Court on cross-motions for summary judgment. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” U.S. CIT R. 56(d). “The Court will deny summary judgment if the parties present ‘a dispute about a fact such that a reasonable trier of fact could return a verdict against the movant.’” Ugg International, Inc. v. United States, 17 CIT 79, 83, 813 F. Supp. 848, 852 (1993) (citation omitted). Both parties in this case agree there are no genuine issues of material fact which would prevent this Court from deciding this action on the basis of the pending motions for summary judgment. (Pl.’s Br. at 3; Def.’s Br. at 9.) B. Reliquidation: Section514of the Tariff Act of 1930, as amended, setsforththe procedure for an importer to protest the classification of merchandise when the importer believes Customs has misinterpreted the applicable law and improperly classified his merchandise. See 19 U.S.C. § 1514 (1988); see also Boast, Inc. v. United States, 17 CIT 114,116,1993 WL 45902 **1 (1993); Occidental Oil & Gas Co. v. United States, 13 CIT 244, 246 (1989). In general, Section 514 makes decisions regarding tariff treatment of merchandise “final and conclusive upon all persons” unless a protest is filed within ninety days of notice of liquidation. See 19 U.S.C. § 1514(a), (c)(2) (1988). Section 520(c)(1) of the Tariff Act of 1930, as amended, establishes an exception to the finality of Section 514 by allowing reliquidation of imported merchandise to correct clerical errors, mistakes of fact, or other inadvertencies not amounting to errors of law, if they are brought to the attention of the appropriate customs officer within one year of the date — 271 — of liquidation. See 19U.S.C. § 1520 (c)(1) (1988). Section 520(c)(1) is not a remedy for all conceivable mistakes or inadvertencies adverse to the importer, but rather “offers ‘limited relief in the situations defined therein.’” PPG Industries, Inc. v. United States, 7 CIT 118, 123, 1984 WL 3749 **4 (1984) (citation omitted). Section 520(c)(1) provides in relevant part: (c) Reliquidation of entry 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. 19 U.S.C. § 1520 (c)(1) (1988) (emphasis added). The regulation implementing this portion of the statute, provides: § 173.4 Correction of clerical error, mistake of fact, or inadvertence. (a) Authority to review and correct. Even though a valid protest was not filed, the district director, upon timely application, may correct pursuant to * * * 19U.S.C. 1520(c)(1), a clerical error, mistake of fact, or other inadvertence meeting the requirements of paragraph (b) of this section, by reliquidation or other appropriate action. (b) Transactions which may be corrected. Correction pursuant to * * * 19 U.S.C. 1520(c)(1), may be made in any entry, liquidation, or other Customs transaction if the clerical error, mistake of fact, or other inadvertence: (1) Does not amount to an error in the construction of a law; (2) Is adverse to the importer; and (3) Is manifest from the record or established by documentary evidence. (c) Limitation on time for application. A clerical error, mistake of fact, or other inadvertence * * * shall be brought to the attention of the district director at the port of entry * * * within 1 year after the date of liquidation or exaction. 19 C.F.R. § 173.4 (1992). Case law is clear that “[sjection 1520(c)(1) does not afford a second bite at the apple to importers who fail to challenge Customs’ decision within the 90-day period set forth in § 1514* * *. [U]nder no circumstances may the provisions of § 1520(c)(1) be employed to excuse the failure to satisfy the requirements of § 1514.” ITT Corp. v. United States, 24 E3d 1384, 1387n.4 (Fed. Cir. 1994). See Boast, Inc. 17 CIT at 116, 1003 WL 45902 **3 (“It is well-established — 272 — * * * [§ 1520(c)(1)] ‘is not an alternative to the normal liquidation-protest method of obtaining review [under § 1514], but rather affords ‘limited relief where an unnoticed or unintentional error has been committed.’”) (quoting Computime, Inc. v. United States, 9 CIT 553, 556, 622 F. Supp. 1083, 1085 (1985) (further quotation and citations omitted)) In this case, plaintiff could not have filed protests against the liquidations because they would have been time-barred. See 19 U.S.C. § 1514 (1988). Instead, plaintiff brings its protest pursuant to 19 U.S.C. § 1520(c) (1988), arguing its broker and Customs made mistakes of fact which were adverse to the importer, manifest from the record or established by documentary evidence and brought to the attention of Customs within one year after the dates of liquidation as required by 19 U.S.C. § 1520(c)(1) (1988). (Pl.’s Br. at 6.) Defendant maintains plaintiffs protest only could have been pursued under 19 U.S.C. § 1514 (1988) and, as a result, is now untimely. Based on the statutory provisions set forth above, the question before this Court is whether plaintiff has overcome the presumption of correctness attaching to Customs’ decision not to reliquidate the entries of the subject merchandise pursuant to plaintiffs requests for reliquidation under 19 U.S.C. § 1520(c)(1). This question turns on whether Customs is correct in arguing plaintiffs broker made no mistake of fact when she classified the entries under subheading 8527.19.00, HTSUS and in one case under subheading 8527.11.20, HTSUS instead of under subheading 8527.31.40. If the mistake is one of law, as Customs maintains, plaintiff has no relief for any of the entries because plaintiff did not protest Customs’ classification decision within the ninety-day period required under 19 U.S.C. § 1514(c)(2) (1988). If, however, this Court finds the mistake is one of fact, the issue turns on whether plaintiff met the requirements of 19 U.S.C. § 1520(c)(1) (1988); 19 C.F.R. § 173.4 (1992). C. The Entries at Issue: The first three entries were entered prior to the issuance of HQ 950882 on August 7, 1992 and were liquidated after its issuance. The last four entries were both entered and liquidated after the issuance of HQ 950882. As set out above, the regulation implementing 19 U.S.C. § 1520(c)(1) (1988) requires three conditions be satisfied before the appropriate Customs officer is authorized to reliquidate an entry to correct a “mistake of fact.”6 The regulation requires the mistake to be (1) not an error in the construction of a law; (2) adverse to the importer; and (3) manifest from the record or established by documentary evidence. See 19 C.F.R. § 173.4(b)(1) — (3) (1992). This Court also notes plaintiffs letters to Customs requesting reliquidation were submitted within one year of liqui — 273 — dation, thus satisfying the timeliness requirement of 19 U.S.C. § 1520(c)(1) (1988). (1) Mistake of Fact: Plaintiff argues it satisfies the regulation’s first requirement — that the mistake must be one that “[d]oes not amount to an error in the construction of a law.” 19 C.F.R. § 173.4(b)(1) (1992). Plaintiff contends both its broker and Customs made mistakes of fact when they entered and liquidated the merchandise because they misunderstood its physical nature. Defendant, however, argues Customs’ classification and assessment of duties was not based on a factual determination that they consisted of dual tape combination stereos incorporating a tape player incapable of recording. Rather, defendant asserts, “Customs made a legal determination * * * on the basis of facts before it.” (Def.’s Br. at 12.) In Hambro Automotive Corp. v. United States, 66 C.C.RA. 113, 118, 603 F.2d 850, 853 (1979) (quoting 58 C.J.S. Mistake p. 852), the United States Court of Customs and Patent Appeals held that “[a] ‘mistake of fact exists where a person understands the facts to be other than what they are’” and takes some action based on that erroneous belief, “whereas a mistake of law exists where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of the facts,” and acts on that mistaken belief. See Degussa Canada Ltd. v. United States, 87 F.3d 1301, 1304 (Fed. Cir. 1996) (“A ‘mistake of fact * * * in [the] liquidation’ is a factual error that, if the correct fact had been known, would have resulted in a different classification.”); Boast, Inc., 17 CIT at 116,1993 WL 45902 **1 (a mistake of fact has been defined as “ ‘a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist.’”) (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, 336 F. Supp. 1395,1399 (1972), aff’d C.C.PA. 90, 499 F.2d 1277 (1974)) An error in the construction of law, however, would occur when the exact physical properties of certain merchandise and all other pertinent facts for classification of that merchandise are known. In applying the law the merchandise is classified as an entirety but it should have been classified as separate articles. Or, the claim is made that an appraiser acts on incomplete information but the appraiser concludes he would have acted in the same way even if the missing information had been before him. If the appraiser errs in such a case, he commits error of law. PPG Industries, Inc., 7 CIT at 123-24,1984 WL 3749 **5 (1984) (quoting 94 Treas. Dec. 244, 246, T.D. 54848 (1959)). Decisions of this Court have established a distinction between cases involving a mistake of law and those involving a mistake of fact based on whether the importer had actual knowledge of the nature and use of the good at issue. In cases where the Court has concluded an importer did not know the facts as they really were, and therefore lacked true knowledge of the ultimate character of the merchandise, the Court has found a mistake of fact existed. See Universal Cooperatives, Inc. v. United States, — 274 — 13 CIT 516, 518, 715 F. Supp. 1113, 1114 (1989) (distinguishing “deci-sional” mistakes, where party makes wrong choice between two known alternate set of facts, and “ignorant” mistakes, where party is unaware of the existence of the correct set of facts; holding decisional mistakes must be challenged by protest under 19 U.S.C. § 1514, whereas ignorant mistakes may be remedied pursuant to 19 U.S.C. § 1520(c) (1988)); cfi Degussa Canada Ltd., 87 F.3d at 1304 (holding no mistake of fact where there was no factual misapprehension about the nature of the imported merchandise); PPG Industries, Inc., 7 CIT at 125, 1984 WL 3749 **6 (holding mistake of law exists when importer is fully aware of the merchandise’s nature but believes the legal consequences of it to be other than what they were); Hambro Automotive Corp., 66 C.C.EA. at 119,603 F.2d at 855 (finding mistake of law exists when exporter knew the facts regarding the cost of production but erred in the assessment of those costs under the applicable law). Based upon the above precedent, this Court finds plaintiffs broker made a mistake of fact when she entered the merchandise believing the entries to be radiobroadcast receivers instead of combination articles. This Court finds the “exact physical properties” of the merchandise were not known to the broker or to Customs in this case. This Court notes the claim in the broker’s affidavit that she “mistakenly believed the imported articles covered by the protests to be radiobroadcast receivers such as were described in HTSUS subheading 8527.19.00” and “radio-tape recorder combinations such as were described in HTSUS subheading 8527.11.20” and she “did not then know that they were combination articles and included tape players which were incapable of recording.” (Pl.’s Br. Ex. B. at 1) The Court also notes defendant’s Response to Plaintiffs First Set of Interrogatories, which states “[t]he involved commodity team was not apprised by plaintiff, and therefore had no knowledge, at the time of entry and/or classification, that [the entries] * * * consisted] of dual tape cassette combination stereos.” (Pl.’s Br. Ex. G at 2.) As a result, this Court finds plaintiff s broker understood the facts to be other than what they were and made a mistake of fact based on her erroneous belief. In C.J. Tower & Sons of Buffalo Inc. v. United States, 68 Cust. Ct. 17, 336 F. Supp. 1395 (1972), aff’d 61 C.C.EA. 90, 499 F.2d 1277 (1974), a leading case discussing what constitutes a mistake of fact sufficient to fall within the scope of Section 520(c), the Customs Court found a mistake of fact existed where neither the importer nor the Customs officer was aware that the merchandise was emergency war materials entitled to duty-free treatment until after the liquidations became final. The Court held this mistake was one of fact because the importer and the Customs Service were unaware of the nature of the materials being imported prior to liquidation and sometime thereafter. This Court subsequently noted, “under Tower, a mistake of fact * * * is correctable under § 1520(c) when the mistake goes to the nature of the merchandise and is the underlying cause for its incorrect classification.” Boast, Inc., 17 CIT — 275 — at 117,1993 WL 45902 ** 2. (citation omitted). See ITT Corp., 24 F.3d at 1387-88 (holding mistake of fact occurred in initial creation of broker’s records, resulting in subsequent misclassification of entries because product was understood to be other than it actually was). While this Court notes it is well-established that “a determination by the Customs Service that merchandise is covered by a certain provision of the TSUS is a conclusion of law,” Cavazos v. United States, 9 CIT 628, 630 (1985), Customs must make its classification determinations based on accurate and complete information. This Court notes plaintiff’s argument that although an erroneous classification of imported merchandise is not immediately remediable as a mistake of fact under 19 U.S.C. § 1520(c)(1) (1988), “[w]hen the erroneous classification results from a misunderstanding of the nature of the merchandise being classified, the misclassification may well be remediable under section 520.” (Pl.’s Resp. to Def.’s Opp’n to Pl.’s Mot. For Summ. J.(“Pl.’s Resp.) at 1.) This case does not present a typical challenge to a Customs classification where Customs evaluated the merchandise and, based on its construction of the tariff schedule, determined into which of two categories the merchandise must be placed, e.g., whether a pager should be classified as a radio receiver or as a signaling apparatus. In such a case, there is no dispute that the only proper course of action would have been to file a timely protest under section 1514. Executone Information Systems v. United States, 96 F.3d 1383, 1388 (Fed. Cir. 1996). Rather, here, plaintiffs broker and Customs were unaware the merchandise consisted of stereos incorporating a tape player incapable of recording until more than ninety days after their liquidation and therefore plaintiffs broker could not have relayed that information to Customs for its consideration in classifying and liquidating the merchandise at issue. Therefore, this Court finds Customs was unable to classify the entries properly. As a result, this Court finds plaintiff has satisfied the regulation’s first requirement that the mistake of fact committed by plaintiffs broker and by Customs “not amount to an error in the construction of a law.” 19 C.F.R. § 173.4(b)(1) (1992). (2) Adverse to the Importer: The regulation’s second requirement mandates the mistake of fact be “adverse to the importer.” 19 C.F.R. § 173.4(b)(2) (1992). This Court finds the broker’s entry of the merchandise at issue under subheading 8527.19.00 and in one case under 8527.11.20, HTSUS was adverse to the importer because it resulted in the imposition of a duty rate of 6% ad valorem instead of a rate of 3.7% ad valorem. Due to the different dates of entry and liquidation, this Court will examine the first three entries and the last four entries separately. — 276 — (a) The First Three Entries: The first three entries7 were classified under subheading 8527.19.00, HTSUS and liquidated at a duty rate of 6% ad valorem. At the time of entry, the first three entries should have been classified as “other combination stereos” under subheading 8527.31.50, which assesses a duty rate of 4.9% ad valorem pursuant to HQ 087197, the headquarters ruling in effect at that time. (Def.’s Br. at l-2n.l.) Subsequent to these entries but prior to liquidation, Customs issued HQ 950882, which changed the classification and reduced the rate of duty imposed on dual cassette stereo combinations, classifying merchandise such as plaintiff s under subheading 8527.31.40, HTSUS, and assessing a duty rate of 3.7% ad valorem. Although the broker’s mistake with respect to the first three entries occurred at the time she entered the merchandise under subheading 8527.19.00, HTSUS before the new headquarters ruling was issued, that ruling had already taken effect when Customs liquidated the first three entries. Regulation 19 C.F.R. § 177.9(a), which addresses the “[e]ffect of ruling letters generally,” states “a ruling letter is effective on the date it is issued and may be applied to all entries which are unliqui-dated, or other transactions with respect to which the Customs Service has not taken final action on that date.”819C.F.R. § 177.9(a) (1992). Accordingly, this Court finds because these three entries were unliquidat-ed as of the date of the issuance of HQ 950882, Customs should have liquidated the entries under subheading 8527.31.40, HTSUS in accordance with the new ruling and assessed duties at a rate of 3.7% ad valo-rem. Therefore, this Court holds the mistake of fact committed by the broker and subsequently by Customs when they entered and liquidated the first three entries at a duty rate of 6% ad valorem was adverse to the importer. This Court holds the first three entries should be reliquidated and assessed a duty of 3.7% ad valorem.9 Plaintiff has satisfied the regulation’s second requirement that the mistake of fact be “adverse to the importer.” 19 C.F.R. § 173.4(b)(2) (1992). (b) The Last Four Entries: This Court’s determination that plaintiff has satisfied the regulation’s second requirement with respect to the last four entries logically follows from the fact that they were entered after the issuance of the HQ 950882. At the time plaintiffs broker mistakenly entered the goods under the wrong subheading, HQ 950882 was already in effect, changing the classification and thereby reducing the rate of duty imposed on merchandise like plaintiffs. As a result, this Court finds the broker should have entered plaintiffs entries under subheading 8527.31.40, HTSUS and Customs should have assessed a duty of 3.7% ad valorem instead of — 277 — 6% ad valorem. Accordingly, this Court finds both the broker’s and Customs’ mistakes of fact in assessing a duty of 6% ad valorem instead of 3.7% ad valorem were adverse to the importer at the time the mistakes were made. This Court holds the last four entries should be reliquidated and assessed a duty of 3.7% ad valorem,10 Plaintiff has satisfied the regulation’s second requirement with respect to the last four entries that the mistake of fact be “adverse to the importer.” 19 C.F.R. § 173.4(b)(2) (1992). (3) Manifest from the Record or Established by Documentary Evidence: The regulation’s third requirement mandates that the mistake be manifest from the record or established by documentary evidence submitted to the appropriate customs officer. See 19 C.F.R. § 173.4(b)(3) (1992). Defendant argues the letters requesting reliquidation submitted by plaintiffs broker “only alleged that the imported merchandise was entered under the wrong HTSUS provision,” and none of the documents submitted with the imported articles “offered guidance concerning any evaluation of a ‘mistake of fact.’” (Def.’s Br. at 14.) Defendant claims “plaintiff did not provide sufficient information to Customs, or to this Court, to satisfy its claim of ‘mistake of fact.’” (Def.’s Reply to Pl.’s Opp’n to Def.’s Cross-Mot. for Summ. J. (“Def.’s Reply”) at 1-2.) Plaintiff, however, argues the letters to Customs requesting reliquidation reasonable [sic] show, especially to the experienced Customs 520 claim reviewer(s) involved, that the broker had originally understood the imports to be just radios, when in fact they were Hi Fi Components, that is, dual cassette stereo decks which included tape players that were incapable of recording * * *. There can be no real question but that Customs knew, from the 520 documented claims made by the broker, that “the document preparer simply understood the nature of the merchandise to be other than what it was.” (Pl.’s Resp. at 3 (citation omitted).) This Court notes defendant’s argument that neither plaintiffs entry papers nor its initial letters to Customs requesting reliquidation indicated the imported merchandise consisted of dual cassette combination stereos incorporating a tape player incapable of recording, and that the papers plaintiff submitted to Customs did not substantiate plaintiffs allegation of a mistake of fact with sufficient particularity to allow remedial action. This Court also notes, however, § 1520(c)(1) requires only that the mistake of fact be “brought to the attention of the appropriate customs officer within one year after the date of liquidation.” 19 U.S.C. § 1520(c)(1) (1988). See Everflora Miami, Inc. v. United States, 885 F. Supp. 243,246 (CIT1995), aff’d 86 F.3d 1174 (Fed. Cir. 1996) (“Although plaintiff did not specifically claim that it was seeking relief under § 1520(c)(1), in compliance with ITT [Corp.] the gravamen of plaintiff s claims is spelled out with sufficient particularity in the protests and at — 278 — tached documents to allow remedial action for mistake of fact or other inadvertence under § 1520(c)(1) * * *.”); ITT Corp., 24 F.3d at 1387-88 (holding this Court erred by interpreting § 1520(c)(1) as precluding at a trial de novo the Court’s consideration of additional evidence, documentary or otherwise, which further substantiated the alleged mistake of fact). But see Fabrene, Inc. v. United States, 17 CIT 911, 914 (1993) (holding plaintiff failed to allege sufficient facts to support its claim that a mistake of fact was committed by Customs as contemplated by 19 U.S.C. § 1520(c)(1) (1988), where plaintiff did not allege any facts to demonstrate the existence of a mistake of fact). In ITT Corp. v. United States, 24F.3d 1384,1388 (Fed. Cir. 1994) (citation omitted), the Federal Circuit noted “the Court of International Trade correctly recognized that the one-year provision of § 1520(c)(1) applies only to the notification to Customs of an alleged mistake of fact, and ‘not * * * to efforts to document the error. ’ ” The Federal Circuit continued to note “ [w]hile a prudent importer would submit all its supporting documentary evidence along with its timely notice alleging a mistake of fact before Customs’ consideration in order to facilitate a prompt and favorable decision by Customs,” failure to do so did not preclude other evidence from being submitted after Customs made its initial reliquidation decision. Id. “The remedial purpose of § 1520(c)(1) would be substantially frustrated by the harsh results that could flow from a rule that a timely assertion of a mistake of fact cannot be proven at atrial de novo after Customs denies the reliquidation request.” Id. at 1389. This Court finds plaintiffs letters requesting reliquidation under 19 U.S.C. § 1520(c)(1) (1988) due to the merchandise’s entry under the “wrong” HTSUS subheading were sent within a year of liquidation, and properly “brought to the attention of the appropriate customs officer,” plaintiffs alleged mistake of fact with respect to the merchandise at issue. See 19 U.S.C. § 1520(c)(1) (1988). Further, this Court finds the information contained in plaintiffs protests of Customs’ denial of its request for reliquidation substantiated the alleged mistake of fact. Plaintiff’s protests state the merchandise at issue “in fact incorporates a dual cassette deck (AC) featuring a tape recorder and a tape player* * *. [T]he tape player is incapable of recording. Headquarters Ruling * * * [950882] * * * directs classification of such merchandise in HS 8527.31.40.” United States Customs Service Protest Nos. 10013-107413 & 10013-107414 (December 27,1993). While plaintiff sprotests of Custom’s refusal to reliquidate was submitted to Customs more than one year after liquidation, this Court finds the protests are nevertheless part of the record for review by this Court in the present action. The record for review consists of all information that was before the administrative agency when it rendered its decision, and plaintiffs protests were reviewed by Customs prior to their denial. In addition, in the broker’s affi — 279 — davit, which was also reviewed by Customs and is before this Court as part of the record, Cecilia Smith states subsequent to filing the entries of these articles and more than 90 days after the most recent of their liquidations, I learned that all of the imports at issue consisted of combination articles or stereos in which were incorporated dual cassette decks (AC), featuring a tape recorder and a tape player * * * incapable of recording. ❖ * ❖ ‡ * * * * * * [I]n my meetings with Customs officials, at the times I filed the 520 requests, or, in any event, thereafter, but prior to the dates of their denials, I described the imports orally or provided descriptive literature and/or illustrations to Customs to show that the articles were dual cassette stereos such as were covered by HQ 950882. At no time did Customs give any indication of dissatisfaction with my proof of the identity of the imports. (Pl.’s Br. Ex. B at 1-2.) Further, this Court notes Customs, in its denial of plaintiffs request for reliquidation, did not state its denial was for want of sufficient proof by plaintiff that the alleged mistakes of fact were manifest from the record or established by documentary evidence, but rather because Customs determined the subject of plaintiffs claim fell within the scope of 19 U.S.C. § 1514 (1992) (Letters from Customs Protest Reviewer of September 1, 1993 denying Pl.’s requests for reliquidation). Had Customs notified plaintiff that it had not submitted sufficient proof to establish a mistake of fact, plaintiff might have been able to submit supporting evidence to Customs before the reliquidation decision. See ITT Corp., 24 F.3d at 1388n. 5. As a result of the above reasons, this Court finds plaintiff “brought to the attention of the appropriate customs officer” the alleged mistake of fact as required by the regulation and substantiated the mistake with sufficient particularity to allow remedial action. See 19 C.F.R. § 173.4(b)(3) (1992). Conclusion For the reasons discussed above, this Court grants plaintiffs motion for summary judgment and denies defendant’s cross-motion for summary judgment. This Court finds plaintiff has overcome the presumption of correctness attached to Customs’ classification. Plaintiff has satisfied 19 U.S.C. § 1520(c)(1) (1988) and the three requirements of 19 C.F.R. § 173.4(b) by demonstrating the mistake committed byplaintiffs broker and subsequently by Customs was not an error in the construction of a law, was adverse to the importer and was manifest from the record or established by documentary evidence. As a result, this Court holds Customs shall reclassify and reliquidate the seven entries under subheading 8527.31.40, HTSUS and assess a duty of 3.7% ad valorem. Customs shall refund excess duties to plaintiff with interest as provided by law. Footnotes [1] In response to an inquiry from this Court, the parties filed astipulation with this Court on March 5,1997, in which they stipulated and agreed that all of the model numbers at issue consisted of dual tape cassette combination stereos, each of which incorporates a tape player incapable of recording. [2] The HTSUS provisions cited by this Court appeal* in HTSUS (4th ed. 1992 & Supp 1). [3] In its brief, defendant states ‘Tilnasmuch as the protests filed by plaintiff only contest the classification of merchandise under subheading 8527.19.00, HTSUS, that merchandise is the only merchandise in issue.” (Def.’s Br, at 2 n.3.) Plaintiff, however, argues “the protest is not one directed at classification decisions, but rather at distinct and separate protestable section 514 decisions not to reliquidate under section 520.” (Pl.’s Resp. to Def.’s Opp’n to Pl.’s Mot. for Summ. J. at 1-2.) This Court finds plaintiff s protest dated August 6,1993 specifically states “Itera # CFS 720S was entered under [sic] wrongclassificationnumber #8527.112040 at the rate of 4.9% instead of 3.7%, ” andreferences this item as pertaining to entry number 917-0027148-8. (Letter from Aspen Forwarders & Custom House Brokers, Inc. to U.S. Customs Service of August 6,1993, at 1.) Plaintiffs protest of Customs’ refusal to reliquidate also references the entry number. As a result, this Court finds Customs’ refusal to reliquidate this entry is properly before the Court in this decision. [4] In her affidavit, Cecilia Smith, the broker responsible for preparing and submitting the entries, stated at the time I made these entries, with the exception of Model No. CFS-720S in Entry No. 917-0027148-8,1 mistakenly believed the imported articles covered by the protests to be radiobroadcast receivers such as were described in HTSUS subheading 8527.19.00 * * *. I did not know that they were combination articles and included tape players which were incapable of recording. [■Alt the time I made entry 917-0027148-8,1 believed Model No. CFS-720S to be radio-tape recorder combinations such as were described in HTSUS subheading 8527.11.20 and entered them accordingly, at the rate of 4.9%. I did not know then that they were combination articles and included tape players which were incapable of recording. (Pl.’s Br. at Ex. B.) Ms. Smith stated subsequent to the filing and entry of the articles and more than ninety days after the most recent of their liquidations, she learned of both the true nature of the imports, as well as the new HQ ruling which changed the duty rate for the merchandise at issue. (Id.) [5] While plaintiffs brief originally argued the imports would have been entered under 8527.31.50 at a duty rate of 6% ad valorem, plaintiff, after consulting with defendant and obtaining defendant’s concurrence with plaintiffs notice of error and request for correction, indicated in a letter to the Court dated February 13,1997 that subheading 8527.31.50 actually assesses a duty of 4.9% ad valorem and not 6% ad valorem on merchandise covered by that subheading. [6] 19 U.S.C. § 1520(c)(1) (1988) also addresses clerical errors or other inadvertencies. Plaintiff does not contend that entry or classification by the broker or Customs involved either a clerical error or an inadvertence. Plaintiff relies solely on the “mistake of fact" element of 19 U.S.C. 8 1520(c)(1) (1988). [7] See chart, supra p.3-4. [8] Although the parties did not cite to 19 C.ER. § 177.9(a) in their papers, in accordance with Jarois Clark Co. o. United States, 2 Fed. Cir. (T) 70,733 E2d 873, (1984), this Court reaches the correct classification decision on its own. [9] See infra, p.28. [10] See infra, p.28.