783 F.Supp. 1421 (CIT. 1992), 91-02-00155, American Permac, Inc. v. United States
|Citation:||783 F.Supp. 1421|
|Party Name:||AMERICAN PERMAC, INC., et al., Plaintiffs, v. The UNITED STATES, Defendant.|
|Case Date:||February 04, 1992|
|Court:||Court of International Trade|
Barnes, Richardson & Colburn (Rufus E. Jarman, Sandra Liss Friedman, and Alan Goggins), for plaintiffs.
Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, U.S. Dept. of Justice, Civ. Div. (Velta A. Melnbrencis), for defendant.
This matter is before the court on plaintiffs' Rule 56.1 motion for summary judgment on the administrative record. Plaintiffs challenge the final results of the administrative review of the antidumping duty determination regarding drycleaning machinery from Germany. The review resulted in a dumping margin of 1.35 percent for machinery of the plaintiff exporter. Drycleaning Machinery From Germany; Final Results of Antidumping Duty Administrative Review, 56 Fed.Reg. 2901, 2902 (Jan. 25, 1991) (" Final Results").
Plaintiffs claim that almost all of the duties imposed are attributable to five machines which represented less than five percent of sales and which were of a design that was being replaced in the U.S. market. In fact, these five machines were the last of the particular model imported into the United States.
As this was the only model of plaintiffs which was also sold in the home market and as home market sales were made exclusively to end users as opposed to both end users and distributors, plaintiffs sought a level of trade adjustment for this model. See 19 C.F.R. § 353.58 (1991). The level of trade adjustment, which involved bad debt and indirect sales office expenses, was granted. Final Results at 2902.
Plaintiffs assert that they also requested an additional level of trade adjustment, exclusion of the sales, or some other adjustment, because sales of the model at issue were discontinued in the United States. The court finds no evidence that exclusion or some other adjustment for model discontinuance was claimed at the time the questionnaire response was submitted. Plaintiffs allege that this claim was made in its prehearing brief of December 5, 1990. Pub.Doc. 19. They also allege that there is ample factual support in the record for such a claim.
First, the court finds that the only claim made in the prehearing brief was for a level of trade adjustment. Furthermore, although there was a passing reference to
obsolescence, no claim was made in the brief for a level of trade adjustment based on the fact that the model had been discontinued or was "obsolete." 1 Assuming arguendo that the prehearing brief asked for an additional level of trade adjustment, the court fails to see how an adjustment for differences in levels of trade in the home market versus the U.S. market is applicable to a problem of model discontinuance in the United States. This has never been explained. Although plaintiffs might have attempted to support a circumstance of sale adjustment, ( see 19 U.S.C....
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