984 F.Supp. 621 (CIT. 1997), 94-10-00589, American Permac, Inc. v. United States

Docket NºCourt No. 94-10-00589.
Citation984 F.Supp. 621
Party NameAMERICAN PERMAC, INC., Plaintiff, v. UNITED STATES, Defendant. Slip Op. 97-149.
Case DateNovember 12, 1997
CourtCourt of International Trade

Page 621

984 F.Supp. 621 (CIT. 1997)

AMERICAN PERMAC, INC., Plaintiff,

v.

UNITED STATES, Defendant.

Slip Op. 97-149.

Court No. 94-10-00589.

United States Court of International Trade.

Nov. 12, 1997

Page 622

Barnes, Richardson & Colburn (Rufus E. Jarman, Jr. and Alan Goggins), New York City, for plaintiff.

Frank W. Hunger, Assistant Attorney General of the United States; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Civil Division, United States Department of Justice (James A. Curley), Edward N. Maurer, Office of the Assistant Chief Counsel, International Trade Litigation, United States Customs Service, of Counsel, for defendant.

OPINION

CARMAN, Chief Judge.

This matter is before the Court on cross-motions for summary judgment pursuant to U.S. CIT R. 56(a). Plaintiff offers three alternative arguments in support of its contention the entries of dry cleaning machinery from Germany in question became liquidated by operation of law prior to Customs' liquidation of the entries on April 22, 1994. Plaintiff asserts the entries became liquidated by operation of law "as entered", at the amount of "the duty paid upon entry, not the amount of the bond." (Pl.'s Br. in Supp. of Mot. for Summ. J. ("Pl.'s Br.") at 18.)

In opposing plaintiff's motion for summary judgment, defendant argues the entries at issue were not eligible to become liquidated by operation of law, and asserts that if the entries did become liquidated by operation of law, "then the liquidated duty is the amount of the bond posted for each entry." (Answer ¶ 40.) Additionally, defendant has filed a counterclaim pursuant to 28 U.S.C. § 1583, maintaining the entries in question were not liquidated correctly in 1994 and that as a result, plaintiff is liable for the difference between the proper antidumping duties and the amount of antidumping duties assessed when the entries were liquidated in 1994.

BACKGROUND

A. The Facts

This matter concerns three entries of dry cleaning machinery from Germany which entered the United States in late 1979. At the time of its entry into the United States, the imported merchandise was subject to an antidumping duty order, see Final Determination of Sales at Less Than Fair Value; Drycleaning Machinery From the Federal Republic of Germany, 37 Fed.Reg. 23,715 (Dep't Comm.1972), and liquidation of the merchandise was suspended pending the completion of an administrative review covering subject merchandise which entered the United States between July 1, 1979 to June 30, 1980. This final results of the administrative review were published by the Department of Commerce ("Commerce") on January 10, 1985. See Drycleaning Machinery From West Germany; Final Results of Administrative Review of Dumping Finding, 50 Fed.Reg. 1,256 (Dep't Comm.1985).

The findings of Commerce's administrative review were challenged in this Court. In the course of that litigation, the Court issued a preliminary injunction which further suspended liquidation of the merchandise at issue, pending the issuance of a final judgment. Following a remand to Commerce, this Court affirmed the findings made in Commerce's administrative review. See American Permac, Inc. v. United States, 714 F.Supp. 1244, 13 CIT 487 (1989)

Page 623

(" American Permac I "). When the time for appeal expired on August 14, 1989, the Court's judgment became final and conclusive. See 28 U.S.C. § 2645(c) (1988) (providing a decision by the United States Court of International Trade "is final and conclusive, unless a retrial or rehearing is granted ... or an appeal is taken to the Court of Appeals for the Federal Circuit by filing a notice of appeal with the clerk of the Court of International Trade within the time and in the manner prescribed").

Once this Court's judgment became final on August 14, 1989, this Court's order suspending liquidation of the entries in question was lifted. See, e.g., Volume Footwear Retailers of America v. United States, 10 CIT 12, 14 (1986) (absent special circumstances, "[i]t is abundantly clear that a preliminary injunction dissolves when the case is dismissed or final judgment is entered"). On October 24, 1989, slightly more than two months after this Court's judgment in American Permac I became final, the Customs Information Exchange distributed instructions from Commerce to liquidate the entries covered by the administrative review and to assess antidumping duties in accordance with the remand determination affirmed by this Court in American Permac I. The entries at issue were ultimately liquidated by Customs on April 22, 1994, approximately four and one-half years after the Customs Information Exchange issued its liquidation instructions.

B. Statutory Provisions

The statute principally at issue in this matter is 19 U.S.C. § 1504. The statute in effect at the time this Court's judgment in American Permac I became final, and thus when the entries in question were first eligible to be liquidated, provides in relevant part:

(a) Liquidation

Except as provided in subsection (b) of this section, an entry of merchandise not liquidated within one year from:

(1) the date of entry of such merchandise; ...

shall be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer of record....

(b) Extension

The Secretary may extend the period in which to liquidate an entry by giving notice of such extension to the importer of record in such form and manner as the Secretary shall prescribe in regulations, if--

...

(2) liquidation is suspended as required by statute or court order;....

....

(d) Limitation

Any entry of merchandise not liquidated at the expiration of four years from the applicable date specified in subsection (a) of this section, shall be deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record, unless liquidation continues to be suspended as required by statute or court order. When such a suspension of liquidation is removed, the entry shall be liquidated within 90 days therefrom.

19 U.S.C. § 1504 (1988).

In 1993, 19 U.S.C. § 1504 was amended by the North American Free Trade Agreement Implementation Act, Pub.L.No. 103-182, § 641, 107 Stat. 2057, 2204-05 (1993) [hereinafter "NAFTA Implementation Act"]. The NAFTA Implementation Act revised the statute to provide in relevant part:

(d) Removal of Suspension

Except as provided in section 1675(a)(3) of this title, when a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry within 6 months after receiving notice of the removal from the Department of Commerce, other agency, or a court with jurisdiction over the entry. Any entry not liquidated by the Customs Service within 6 months after receiving such notice shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record.

19 U.S.C. § 1504(d) (1994). This section of the Act took effect on December 8, 1993, the

Page 624

date the Act was signed into law by the President. See id. at § 692, 107 Stat. 2225.

CONTENTIONS OF THE PARTIES

A. Plaintiff

Plaintiff raises three principal arguments in support of its position that the entries in question became liquidated by operation of law prior to Customs' purported liquidation of the entries on April 22, 1994. First, plaintiff argues, pursuant to 19 U.S.C. § 1504(d) (1988), the three entries at issue became liquidated by operation of law ninety days after this Court's judgment in American Permac I became final. Plaintiff argues "[p]ursuant to [the statute], ... Customs was required to liquidate the entries within 90 days after the removal of the suspension from liquidation"...

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3 practice notes
  • 116 F.Supp.2d 1317 (CIT. 2000), 94-10-00589, American Permac, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • September 1, 2000
    ...28 U.S.C. § 1581(a). BACKGROUND The facts in this case have been recounted in greater detail in American Permac, Inc. v. United States, 984 F.Supp. 621, 622 (CIT 1997), and American Permac, Inc. v. United States, 191 F.3d at 1381. The facts pertinent to this opinion are set forth This case ......
  • American Permac, Inc. v. United States, 090100 uscit, 94-10-00589
    • United States
    • September 1, 2000
    ...[15] BACKGROUND [16] The facts in this case have been recounted in greater detail in American Permac, Inc. v. United States, 984 F.Supp. 621, 622 (CIT 1997), and American Permac, Inc. v. United States, 191 F.3d at 1381. The facts pertinent to this opinion are set forth below. [17]......
  • 512 F.3d 1332 (Fed. Cir. 2008), 2007-1094, United States Tsubaki, Inc. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • January 9, 2008
    ...Permac were deemed liquidated at the duty rate asserted by the importer at the time of entry. Am. Permac, Inc. v. United States, 984 F.Supp. 621 (Ct. Int'l Trade 1997). This court, however, reversed, holding that to apply the 1993 version of section 1504(d) would give that statute "an ......
3 cases
  • 116 F.Supp.2d 1317 (CIT. 2000), 94-10-00589, American Permac, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • September 1, 2000
    ...28 U.S.C. § 1581(a). BACKGROUND The facts in this case have been recounted in greater detail in American Permac, Inc. v. United States, 984 F.Supp. 621, 622 (CIT 1997), and American Permac, Inc. v. United States, 191 F.3d at 1381. The facts pertinent to this opinion are set forth This case ......
  • American Permac, Inc. v. United States, 090100 uscit, 94-10-00589
    • United States
    • September 1, 2000
    ...[15] BACKGROUND [16] The facts in this case have been recounted in greater detail in American Permac, Inc. v. United States, 984 F.Supp. 621, 622 (CIT 1997), and American Permac, Inc. v. United States, 191 F.3d at 1381. The facts pertinent to this opinion are set forth below. [17]......
  • 512 F.3d 1332 (Fed. Cir. 2008), 2007-1094, United States Tsubaki, Inc. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • January 9, 2008
    ...Permac were deemed liquidated at the duty rate asserted by the importer at the time of entry. Am. Permac, Inc. v. United States, 984 F.Supp. 621 (Ct. Int'l Trade 1997). This court, however, reversed, holding that to apply the 1993 version of section 1504(d) would give that statute "an ......