Protest 94442-K of Honig

Eicwall, Judge: The merchandise involved in this case consists of 36 pieces, watch movements, imported from Switzerland. Duty was levied thereon under the provisions of paragraph 367 (a) (1), Tariff Act of 1930, as modified by the trade agreement with Switzerland (T. D. 48093), at $1.20 each, plus an additional 9 cents each jewel for each jewel in excess of seven, plus 50 cents for each adjustment. [277] The pertinent portions of said paragraph 367 (a), as amended, are as follows: 367 (a) Watch movements * * * (1) * * * If more than -Ko of 1 inch but not more than 1 inch wide_ $1.20 each. (3) Any of the foregoing having more than seven jewels shall be subject to an additional duty of 90 for each jewel in excess of seven. (4) Any of the foregoing shall be subject for each adjustment'of whatever kind (treating adjustment to temperature as two adjustments) in accordance with the marking as provided in subpara-graph (b) of paragraph 367 to an additional duty of-500 for each adjustment. The issue presented by the protest is that a clerical error was made by the examiner of merchandise in that he found these 36 pieces had 3 adjustments, whereas, it is alleged, the examiner’s notation should have been “no adjustments.” Plaintiff moved to amend the protest by adding the following: The 36 pieces watch movements referred to in this protest are dutiable under paragraph 367 (a), as amended by the Swiss Trade Agreement, T. D. 48093, as follows: At 900 each (over 1" wide) plus 90 for each jewel in excess of 7 (paragraph 367 (a) (3)) or At $1.20 each (more than 9/10 of 1 inch but not more than 1 inch wide) plus 90 for each jewel in excess of 7. (Paragraph 367 (a) (1) (3).) Prom the testimony' produced at the hearing by the Government appraiser at the port of entry it is clear that plaintiff’s claim cannot be sustained. Prom the appraiser’s testimony it appears that when these movements were imported they were marked “3 adjustments,” and the examiner so returned them, that being the only evidence as to whether the movements were adjusted. The importer testified, among other things, that the involved movements had not been adjusted, that he had received permission to repack the movements in smaller packages, and that he received permission to change the marking “3 adjustments” to “non-adjusted” and he made that change. The deputy collector in charge of the liquidating division testified in substance that the liquidation of the entry was in accordance with the examiner’s notation, and that said liquidation was as he intended it. Government counsel at the first hearing moved to dismiss the original protest as untimely ‘ in that it was filed 7 months subsequent to liquidation and that plaintiff’s claim of clerical error in the appraiser’s or examiner’s description of the merchandise was an attempt to evade the provisions of section 514, Tariff Act of 1930, which require that protest be filed within 60 days after liquidation. The motion was based on the further ground that the motion to amend is also untimely. At the conclusion of the hearing counsel entered into a stipulation that if the examiner were called to testify he would state that he fully intended to classify the merchandise covered by this protest as having three adjustments, that they were so marked, and it was further stipulated that the watches were marked “3 adjustments” at the time of importation. The case was submitted subject to the ruling of the court on the motions to dismiss. Insofar as the original protest is concerned the alleged error was discovered within 1 year after the date of entry and protest filed within that time. Although the claim set forth in that protest is termed clerical error it is clearly a protest [278] against the collector's classification. Even if we were to find that the protest was. timely, plaintiff has failed to prove clerical error as that term has been defined by the courts. In Cheney Bros. v. United States, 38 Treas. Dec. 577, T. D. 38468 (G. A. 8363), clerical error was defined as a physical variance between the mental intention and the physical execution, or registering of the intention. See also. J. J. McQuillan v. United States, 18 C. C. P. A. 215, T. D. 44401; United States v. Wyman & Co., 4 Ct. Cust. Appls. 264, T. D. 33485. In the case at bar liquidation had become final unless there has been a clerical error within the meaning of section 520 (a) as more than 60 days have elapsed since the date of liquidation without the alleged error being corrected. To allow' an amendment in the form of a classification claim to such a protest would nullify the statute of limitations in section 514, Tariff Act of 1930. The motion to. amend the protest is therefore denied. Inasmuch as plaintiff has failed to prove clerical error we think the better-practice would be to overrule the protest rather than dismiss the same. Judgment will be rendered accordingly.