No Request for Review or Court Challenge Means Importer Must Pay High 374.15% Cash Deposit Rate, CIT Says
An importer of aluminum extrusions from China that paid a 374.15% AD duty cash deposit owes a 374.15% assessment, even though the "all others" rate was subsequently lowered to 7.37% in litigation, the Court of International Trade said in a decision issued July 20 (here). Because the importer did not participate in the court case that lowered the rate, or in any administrative review that could have resulted in a different assessment, Capella Sales & Services owes duties at the cash deposit rate in effect at time of entry, even if it was later invalidated, the court said.
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Capella had entered merchandise subject to aluminum extrusions duties in November 2011, and again in March and June 2012. Because the extrusions were from Chinese exporters that weren’t assigned their own rates in the investigation and subsequent administrative reviews, the entries were subject to the 374.15% “all others” rate Commerce set in the original AD duty order. In the meantime, MacLean-Fogg, joined by other U.S. importers and Chinese exporters, had filed a challenge to the "all others" rate. Decisions over the ensuing years from CIT and the U.S. Court of Appeals for the Federal Circuit forced Commerce to lower the rate first to 137.65% effective Dec. 10, 2012, and then to 7.37% effective Nov. 10, 2015 (see 1511090024).
In a challenge filed in 2014, Capella challenged Commerce’s cash deposit instructions, as well as liquidation instructions sent to CBP in July 2012 for the 2011 entries and in June 2013 for the 2012 entries, arguing Commerce should have applied the lower court-ordered rates.
However, the laws governing antidumping proceedings say entries are to be liquidated at the cash deposit rate in effect at time of entry if no review is requested of the entries, and Capella requested no review, CIT said. Importers can also file court challenges to AD rates and obtain an injunction preventing liquidation until the end of the case, but Capella filed no challenge and didn’t join MacLean-Fogg’s. Capella’s merchandise was subject to liquidation, and was entered before the effective date of the Federal Register “Timken Notices” announcing the new court-ordered rates, CIT said. As such, Commerce properly liquidated them at the rate in effect at time of entry, 374.15%, it said.
(Capella Sales & Services Ltd. v. U.S., Slip Op. 16-72, dated 07/20/16, CIT# 04-00304, Judge Pogue)