CIT Dismisses AD Liquidation Instruction Case; Can't Challenge CBP for ITA Mistake
The Court of International Trade dismissed Celta Agencies’ challenge of liquidation instructions for its entries subject to the antidumping order on steel concrete reinforcing bars from Latvia (A-449-804). Celta said its entries of reinforcing bars should have been liquidated at the company-specific rate of the producer instead of the all others rate. CIT, however, said it had no subject matter jurisdiction under the 28 USC 1581(a) customs protest denial challenge provision, because Celta was in fact challenging International Trade Administration liquidation instructions, not an action by Customs. CIT said the challenge was correctly filed under the 28 USC 1581(i) residual jurisdiction provision, but the statute of limitations for its use, two years, had already expired.
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In December 2004, Celta imported an entry of steel concrete reinforcing bars made by Latvian producer Joint Stock Company Liepajas Metalurgs (JSCLM). The merchandise was subject to the AD order on steel concrete reinforcing bars from Latvia, and Celta paid an AD cash deposit at JSCLM’s rate of 0.87 percent. When the ITA issued its importer-specific assessment instructions following the administrative review for the period in which Celta made entry, it did not mention Celta. As a result, in March 2007, CBP liquidated Celta’s entry at the all others rate of 17.21 percent. Celta paid additional duties totalling $412,316.29. Celta then filed a protest with CBP in June 2007, which was denied in December 2009, and a CIT complaint in May 2011.
Celta said CIT had jurisdiction under the 28 USC 1581(a) provision granting CIT jurisdiction of CBP protest denials. But according to CIT, Celta was not challenging any non-ministerial decision by CBP, and instead directed all of its claims to the ITA’s assessment instructions. An importer may challenge CBP’s duty assessment through the protest procedure when CBP made an error in carrying out the ITA’s assessment instructions, but not when the ITA and not CBP made the error, CIT said.
Instead, CIT said, Celta could have directly challenged the ITA’s assessment instructions under the 28 USC 1581(i) residual jurisdiction provision. Celta failed to bring suit within two years of the date on which its cause of action accrued, however, as is required for Section 1581(i) cases. In this case, CIT said, the cause of action accrued no later than June 2007, when Celta filed its protest, because it is apparent from the protest that Celta was already aware that CBP’s actions were due to ITA liquidation instructions.
(Celta Agencies, Inc. v. United States, Slip Op. 12-128, dated 10/09/12, Judge Stanceu)
(Attorneys: Andrew Jaxa-Debicki of International Legal and Consulting Services for plaintiff Celta; Aimee Lee for defendant U.S. government)