Thermacote Welco Co. v. U.S.
| Decision Date | 07 January 2003 |
| Docket Number | SLIP OP. 03-3.,Court No. 93-08-00431. |
| Parties | THERMACOTE WELCO COMPANY, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Wigman, Cohen, Leitner & Myers, P.C. (Edward J. Farrell) for the plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General; John J. Mahon, Acting Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (James A. Curley); and Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs Service (Chi S. Choy), for the defendant, of counsel.
In this action, the plaintiff importer seeks relief from denial by the U.S. Customs Service of a request for refund of duties voluntarily deposited to the extent those deposits proved to be in excess of its liability therefor, as determined by the International Trade Administration, U.S. Department of Commerce ("ITA").
Following joinder of issue, the parties have interposed cross-motions for summary judgment. They have done so in the belief that their pleadings show that there is no genuine issue as to any material fact within the meaning of USCIT Rule 56(c) and that each is entitled to judgment as a matter of law. Plaintiffs Statement of Material Facts Not in Dispute, submitted pursuant to Rule 56(i) [since relettered (h) ], avers, among other things, that:
1. The [twelve] entries in question consist of low-fuming brazing rod (LFB) from New Zealand.
2. At the time of each of these entries there was in place a suspension of liquidation of entries of LFB from New Zealand pursuant to outstanding antidumping and/or countervailing duty orders.
3. The U.S. Customs Service failed to collect the deposit of countervailing and/or antidumping duties required by the relevant suspension order on each of the entries in question.
4. At the request of ... Customs ... plaintiff voluntarily tendered deposits of countervailing and/or antidumping duties ... with the understanding that the entries were not liquidated.
5. The entries were in fact mistakenly liquidated....
6. The voluntarily tendered deposit amounts exceeded Plaintiffs antidumping/countervailing duty liability as finally determined by the U.S. Department of Commerce.
7.... Customs ... refused to refund the excess of Plaintiffs deposits over its liabilities.
Defendant's response to this statement admits paragraph 1 and denies paragraph 6. That response also:
2. Admits that the entries in issue were made and there were outstanding antidumping and/or countervailing duty orders directed to low-fuming brazing rod from New Zealand; denies that liquidation of the entries was suspended....
3. Admits that the Customs Service did not collect antidumping or countervailing duties on the entries in issue; avers that the plaintiff or its broker, D.J. Powers, indicated on the entry summaries (CF7501) that the entries were consumption entries not subject to antidumping or countervailing duties; avers further that the plaintiff or its broker did not deposit antidumping or countervailing duties on the entries in issue when the entry summaries were filed....
4. Admits that at the request of ... Customs ... the plaintiff voluntarily tendered antidumping or countervailing duties for Entry Nos. 85-164232-9 and 85-164230-3; denies there was any understanding between ... Customs ... and the plaintiffs broker that the entries had not been liquidated at the time the voluntary tenders were made....
5. Admits that the entries were liquidated on the dates stated in [plaintiffs] Exhibit A; denies that the entries were mistakenly liquidated.
* * * * * *
7. Admits that ... Customs ... refused to allow the refunds requested by the plaintiff; denies the remainder of the statement.
Defendant's own Statement of Material Facts Not in Dispute adds that:
2. Neither antidumping nor countervailing duties were deposited when the entry summaries were filed[;] estimated regular duties were deposited[ ] for the entries in issue.
3. An entry code of "01" appears in Box 2 on each entry summary (CF7501) for the entries in issue.
4. A bulletin notice of liquidation for each entry in issue appeared on or about the date of liquidation.
None of these averments is controverted by the plaintiff. Indeed, after reviewing the papers in this action, the court concludes that there is no issue of material fact which requires trial. The dispositive issue(s) are matters of law that can be resolved by this opinion. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) () (emphasis in original).
The thrust of defendant's cross-motion for summary judgment is that this action be dismissed for lack of subject-matter jurisdiction. Sometime subsequent to entry and to liquidation, Customs requested that plaintiffs broker, D.J. Powers Company, Inc., tender voluntarily antidumping/countervailing duties at the deposit rates on at least some of the entries,1 whereupon monies were advanced for all twelve entries now at bar. See Plaintiffs Brief, Exhibit B.
The plaintiff claims to have learned that those entries had been liquidated on the various dates listed on the schedule of entries2 when they and many others were processed for refunds in conjunction with an administrative review conducted by the ITA pursuant to 19 U.S.C. § 1675. See Plaintiffs Brief, p. 2. Its request for refunds of excess amounts tendered was denied by Customs on the ground that "no regulatory authority exist[ed] for processing the[m] for a refund."3 The plaintiff thereupon lodged a protest of this decision with Customs, which was denied. This action ensued.
The Court of International Trade has exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. 28 U.S.C. § 1581(a). See also 28 U.S.C. § 2631(a). The plaintiff pursues this action under 19 U.S.C. § 1520(c)(1) or, in the alternative, under section 1520(a)(2). Those provisions of that act were as follows at the times of entry, liquidation and tender of additional duties herein:
§ 1520. Refunds and errors
(a) Cases in which refunds authorized
The Secretary of the Treasury is authorized to refund duties or other receipts in the following cases:
. . . . .
(2) Fees, charges, and exactions.— Whenever it is determined in the manner required by law that any fees, charges, or exactions, other than duties and taxes, have been erroneously or excessively collected;....
. . . . .
(c) Reliquidation of entry
Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct—
(1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction;....
While the court may have subjectmatter jurisdiction over an action such as this pursuant to 28 U.S.C. § 1581(a),4 when, as here, the government contests that jurisdiction, the plaintiff must establish that the statutory requirements have been satisfied.5
The plaintiff takes the position that its section 1520(c)(1) protest was timely. It argues that because liquidation occurred prior to the tender of the antidumping/countervailing-duty deposits, the liquidation is irrelevant. Instead, the date of exaction is controlling as a "statutory alternative to the date of liquidation". Plaintiffs Brief, p. 4. Furthermore, that moment of exaction in this matter was not the date of the voluntary tender(s), rather
the date on which Customs informed Plaintiff that it would not refund the difference between the countervailing and antidumping deposits made by Plaintiff and the countervailing and antidumping liabilities finally found by the Department of Commerce.
Id. The plaintiff attempts to rely on New Zealand Lamb Co. v. United States, 40 F.3d 377 (Fed.Cir.1994). In that case, estimated duties had been deposited with the Service for each of eight entries, as well as monies estimated to cover countervailing duties. Upon liquidation, the latter were found to be greater than those estimated. Customs marked the entries as liquidated for the higher duty amounts and posted the appropriate bulletin notices for each. The company tendered the additional countervailing duties but not interest that had accrued on them. After the 19 U.S.C. § 1514-90-day period of limitation had run, the Service billed New Zealand Lamb for the interest, which was paid. Ninety days later, the company filed a protest with Customs, which denied it. The Court of International Trade thereafter concluded that the Service's failure to charge the interest by the time of the liquidation meant that the entries liquidated without interest were final. New Zealand Lamb Co. v. United States, 16 CIT 1039 (1992). The court of appeals vacated that ruling, concluding that "there was no decision regarding interest—so as to trigger the running of the ninety-day limitations period— until Customs actually billed New Zealand Lamb for interest on March 23, 1990". 40 F.3d at 381.
... [T]hat interest on the underpayment of duties is a charge.... We do not see how there can be a decision on a charge—at least for purposes of starting the running of a limitations period— until the party levying the charge announces that the charge is being levied and states the...
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U.S. v. Washington Intern. Ins. Co., Slip Op. 05-57.
...e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Thermacote Welco Co. v. United States, 27 CIT ___, ___, 246 F.Supp.2d 1327, 1328 (2003). And, in addressing those matters, the Tariff Act provides that, if the monetary penalty is based on ne......