991 F.Supp. 648 (CIT. 1997), 95-09-01173, Pyke Mfg. Co. v. United States

Docket Nº:Court No. 95-09-01173.
Citation:991 F.Supp. 648
Party Name:PYKE MANUFACTURING COMPANY, Plaintiff, v. UNITED STATES, Defendant. Slip Op. 97-174.
Case Date:December 17, 1997
Court:Court of International Trade
 
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Page 648

991 F.Supp. 648 (CIT. 1997)

PYKE MANUFACTURING COMPANY, Plaintiff,

v.

UNITED STATES, Defendant.

Slip Op. 97-174.

Court No. 95-09-01173.

United States Court of International Trade.

Dec. 17, 1997

Irving A. Mandel (Thomas J. Kovarcik, Steven R. Sosnov), New York City, for Plaintiff.

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Frank W. Hunger, Assistant Attorney General of the U.S.; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Shalom Brilliant); Karen Bland, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, Washington, DC, for Defendant.

OPINION

CARMAN, Chief Judge.

This case is before the Court on cross-motions for summary judgment pursuant to U.S. CIT R. 56. Plaintiff challenges the United States Customs Service's ("Customs") retention of antidumping duties paid on ten entries of man-made fiber sweaters from Taiwan following their liquidation in March 1992. The duties were assessed pursuant to an antidumping duty order which was in effect at the time of the entries' liquidation, but was revoked in July 1994, subsequent to the liquidation of the ten entries at issue. Plaintiff moves for summary judgment contending it is entitled to a refund of the $105,920 in antidumping duties it paid in April 1992, plus interest, and asserts this Court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (1988) to decide its claim.

Defendant opposes plaintiff's Motion for Summary Judgment and has filed a Cross-Motion for Summary Judgment. Defendant asserts this Court does not have jurisdiction to hear plaintiff's claim pursuant to 28 U.S.C. § 1581(i), and alternatively argues that should this Court determine it does have jurisdiction pursuant to 28 U.S.C. § 1581(i) to decide plaintiff's claim, defendant is entitled to the entry of summary judgment in its favor.

BACKGROUND

On October 19, 1989, the Department of Commerce ("Commerce") initiated an antidumping duty investigation of imports of sweaters wholly or in chief weight of man-made fiber from Taiwan. See Initiation of Antidumping Duty Investigations: Sweaters Wholly or in Chief Weight of Man-Made Fiber From Hong Kong, the Republic of Korea, and Taiwan, 54 Fed. Reg. 42,972 (Dep't Comm. 1989). Commerce published its preliminary determination that the sweaters in question were being, or were likely to be, sold in the United States at less than fair value on April 27, 1990, and instructed Customs to suspend liquidation of entries of man-made fiber sweaters from Taiwan that were entered, or withdrawn from warehouse for consumption, on or after that date. See Preliminary Determination of Sales at Less Than Fair Value: Sweaters Wholly or in Chief Weight of Man-Made Fiber From Taiwan, 55 Fed. Reg. 17,779 (Dep't Comm. 1990) (prelim. determ.) (" Preliminary Determination "). Pursuant to the instructions to suspend liquidation, importers were required to post a bond or remit a cash deposit in the amount equal to the estimated antidumping duties calculated in the Preliminary Determination. See 19 U.S.C. § 1673b(d)(2) (1988) (following issuance of affirmative preliminary determination Commerce "shall order the posting of a cash deposit, bond, or other security, as it deems appropriate, for each entry of the merchandise concerned equal to the estimated average amount by which the foreign market value exceeds the United States price"). Following Commerce's publication of its affirmative preliminary determination, plaintiff made ten entries of man-made fiber sweaters from Taiwan between May 13, 1990 and September 19, 1990.

On September 24, 1990, based upon its final determination that imports of man-made fiber sweaters from Taiwan were being sold at less than fair value, and a final determination by the International Trade Commission ("ITC") that a United States industry was materially injured by reason of these imports, Commerce issued an antidumping duty order covering imports of man-made fiber sweaters from Taiwan. See Antidumping Duty Order and Amendment to the Final Determination of Sales at Less Than Fair Value: Sweaters Wholly or in Chief Weight of Man-Made Fiber From Taiwan, 55 Fed. Reg. 39,033 (Dep't Comm. 1990) . Several importers and exporters of man-made fiber sweaters from Taiwan contested the ITC's material injury determination before this Court. See Chung Ling Co., Ltd. v. United States, 16 CIT 636, 805 F.Supp. 45 (1992) ( " Chung Ling I "). Plaintiff was not a

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party to that challenge and did not seek a preliminary injunction suspending the liquidation of its entries.

On September 19, 1991, Commerce published a notice informing interested parties of their opportunity to request an administrative review of its antidumping duty order covering man-made fiber sweaters from Taiwan. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 56 Fed. Reg. 47,450 (Dep't Comm. 1991). The notice informed interested parties that if Commerce did not receive a timely request for an administrative review, it would instruct Customs to assess antidumping duties upon entries of man-made fiber sweaters from Taiwan at a rate equal to the cash deposit or bond rate for estimated duties required on the merchandise at the time of entry. Pyke did not request an administrative review of Commerce's antidumping duty order on sweaters of man-made fiber from Taiwan, making its ten entries subject to the automatic assessment of antidumping duties at the estimated rate required on the merchandise at the time of entry pursuant to 19 C.F.R. § 353.22(e) (1992) (providing where administrative review of antidumping duty order is not requested, Commerce "without additional notice, will instruct the Customs Service to assess antidumping duties on the merchandise ... at rates equal to the cash deposit of, or bond for, estimated antidumping duties required on that merchandise at the time of entry"). Customs liquidated the entries in question on March 6, 1992, and the liquidated duties were paid by plaintiff on April 16, 1992.

On July 28, 1992, this Court remanded the ITC's material injury determination, finding it to be unsupported by substantial evidence on the record and not otherwise in accordance with law. See Chung Ling I, 805 F.Supp. at 56. On remand, the ITC determined that a United States industry was not materially injured or threatened with material injury by reason of imports of man-made fiber sweaters from Taiwan. See Sweaters Wholly or in Chief Weight of Manmade Fibers from Hong Kong, the Republic of Korea, and Taiwan, USITC Pub. 2577, Views on Remand in Inv. Nos...

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