30 F.3d 1469 (Fed. Cir. 1994), 93-1518, American Alloys, Inc. v. United States

Docket Nº:93-1518, 93-1539.
Citation:30 F.3d 1469
Party Name:AMERICAN ALLOYS, INC., Elkem Metals Company, Globe Metallurgical, Inc. and SKW Alloys, Inc., Plaintiffs/Cross-Appellants, Simetco, Inc., Plaintiff, v. The UNITED STATES, Defendant-Appellant.
Case Date:July 27, 1994
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1469

30 F.3d 1469 (Fed. Cir. 1994)

AMERICAN ALLOYS, INC., Elkem Metals Company, Globe

Metallurgical, Inc. and SKW Alloys, Inc.,

Plaintiffs/Cross-Appellants,

Simetco, Inc., Plaintiff,

v.

The UNITED STATES, Defendant-Appellant.

Nos. 93-1518, 93-1539.

United States Court of Appeals, Federal Circuit

July 27, 1994

Rehearing Denied Sept. 15, 1994.

Page 1470

Charles M. Darling, IV, Baker & Botts, L.L.P., Washington, DC, argued for plaintiffs/cross-appellants. With him on the brief were William D. Kramer and David E. Maranville. Of counsel were Stephen L. Teichler, Martin Schaefermeier, Michael X. Marinelli and Clifford E. Stevens.

A. David Lafer, Senior Trial Counsel, Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendant-appellant. With him on the brief were Frank W. Hunger, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Stephen J. Powell, Chief Counsel for Import Admin., Berniece A. Browne, Sr. Counsel for Antidumping Litigation, and Robert E. Nielsen, Sr. Atty., Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

Page 1471

Before NEWMAN, Circuit Judge, SKELTON, Senior Circuit Judge, and RADER, Circuit Judge.

RADER, Circuit Judge.

Domestic producers of silicon metal, including American Alloys, Inc., initiated an antidumping complaint against their Argentine competitor, Electrometalurgica Andina, S.A.I.C. (Andina). The Department of Commerce (Commerce) determined Andina sold silicon metal at less than fair value. Commerce, however, reduced Andina's dumping margin to account for rebated taxes. On review, the Court of International Trade determined that Commerce erred by not calculating the actual amount of the rebated taxes passed on to domestic consumers of Andina's products. American Alloys, Inc. v. United States, 810 F.Supp. 1294 (Ct. Int'l Trade 1993).

Based on statutory construction, this court reverses the Court of International Trade's holding that the rebated taxes were automatically applicable for a reduction of the dumping margin. Commerce adequately determined that Argentine taxes were included in the domestic price. Therefore, this court reverses the trial court's decision that Commerce must calculate the pass-through tax incidence for the rebates.

BACKGROUND

In August 1990, American Alloys petitioned Commerce to impose antidumping duties on silicon metal imports from Argentina. Commerce initiated an investigation and determined that Andina sold silicon metal in the United States at less than fair market value.

To determine the fair market value, Commerce assessed the domestic price of silicon metal products in Argentina. The price of silicon metal products in Argentina included several domestic taxes. For exported goods, Argentina either does not assess these taxes or grants a rebate upon export under the "Reembolso" program. The Reembolso program covered national taxes for, among others, the Export Promotion Fund, the Tire Tax, the Truck Engine Tax, the Retirement Fund, the Public Works Fund, the Social Assistance Fund, the Family Subsidies Fund, the National Housing Fund, and Real Estate Taxes.

Commerce verified that Andina's domestic prices for silicon metal products included taxes covered by the Reembolso program. Commerce analyzed the legal requirements of the Reembolso program, required Andina to answer a questionnaire about the taxes, and examined shipping licenses including applications for the rebate. Finally, Commerce analyzed a sales transaction to verify that the rebated taxes were included in the price. Commerce concluded that these inquiries verified that the price of Andina's domestic products was 12.5% higher than the price of exports due to the rebates for "Reembolso" taxes on exported goods.

Commerce did not, however, conduct an inquiry to determine whether Argentina directly imposed the rebated taxes on the exported silicon metal and whether Andina actually passed these taxes on to its domestic consumers in the form of higher prices. According to Commerce, this form of physical incorporation inquiry occurs in a counter-vailing duty investigation, which American Alloys had not requested.

In Final Determination of Sales at Less Than Fair Value: Silicon Metal from Argentina, 56 Fed.Reg. 37,891, 37,895 (Dep't Comm. Aug. 9, 1991), Commerce found that silicon metal from Argentina was sold at less than fair value. In setting the dumping margin, Commerce increased the United States Price by 12.5% to offset the Reembolso tax rebate. American Alloys, 810 F.Supp. at 1295. This adjustment reduced the dumping margin on Andina's United States export sales. Id.

Before the Court of International Trade, American Alloys moved for judgment on the agency record under 28 U.S.C. Sec. 1581(c)...

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