HQ 226415 - Protest 1801-79-000030; Timely liquidation of antidumping duties; HQ 226417; Pasco Terminals, Inc. v. U.S., purchase price; 19 U.S.C. 162; F.W. Meyers & Co. v. U.S.; Harold Elton Ladwig v. U.S.; Voss International Corp. v. U.S.; applicable antidumping law to entries prior to 1980; Timken Co. v. U.S.; Melex USA, Inc. v. U.S. - United States International Trade Commision Rulings

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HQ 226415

March 4, 1997

LIQ-4-01-RR:IT:EC 226415 AJS

CATEGORY: LIQUIDATION

Port Director of Customs
U.S. Customs Service
4430 East Adamo Drive
Tampa, FL 33605

RE: Protest 1801-79-000030; Timely liquidation of antidumping duties; HQ 226417; Pasco Terminals, Inc. v. U.S., purchase price; 19 U.S.C. 162; F.W. Meyers & Co. v. U.S.; Harold Elton Ladwig v. U.S.; Voss International Corp. v. U.S.; applicable antidumping law to entries prior to 1980; Timken Co. v. U.S.; Melex USA, Inc. v. U.S.

Dear Sir or Madame:

This is in reply to a correspondence concerning protest 1801-79-000030, dated November 2, 1979, which this office received on September 5, 1995, from the Department of Commerce involving the application of antidumping duties.

FACTS:

The subject merchandise is elemental sulphur from Mexico. It was entered on September 16, 1974, and this entry was liquidated on October 19, 1979. The importer of record and protestant is Gardinier, Inc.

The chronology of events provided by the protestant in HQ 226417 is incorporated by reference into this decision.

ISSUE:

Whether the subject entry was timely liquidated.

Whether Customs erred in ascertaining foreign market value (FMV) by using the purchase price paid by the foreign seller to the producer instead of the purchase price paid by the protestant.

LAW AND ANALYSIS:

Initially, we note that the subject protest was timely filed in 1979 pursuant to 19 U.S.C. 1514(b)(2)(1979). The date of decision as to which protest is made was October 19, 1979, and the date of this protest is November 2, 1979. We also note that the liquidation of an entry was protestable pursuant to 19 U.S.C. 1514(a)(5)(1979). We additionally note that section 1514 was amended concerning issues not related to the filing deadline of or the subject matter of protests. See Pub. L. 96-39, Title X, section 1001(b)(3), 93 Stat. 305 (July 26, 1979). The effective date of these amendments was January 1, 1980. Id. at sect. 1002. These amendments to section 1514 do not apply with respect to any protest filed before January 1, 1980. Id. at sect. 1002(b)(1)(A). Therefore, these amendments do not apply to the subject protest because it was filed on November 2, 1979.

The protestant asserts that Customs is barred by the statute of limitations from collecting the subject antidumping duty. In HQ 226417 (February 13, 1997), Customs determined that a similar entry was timely liquidated and that there was no statute of limitations barring the collection of the antidumping duties at issue. That decision thoroughly discussed this issue and the analysis from the decision is incorporated by reference into the subject protest.

The protestant raises three issues regarding actions of the U.S. Tariff Commission (USTC). The protestant states that these were the precise issues then being litigated in Pasco Terminals, Inc. v. U.S., Court No. 74-5-01357. These issues are whether the USTC failed to follow its own Rules of Practice and Procedure in its injury investigation; whether the USTC abused its discretion in denying cross-examination of crucial evidence in conducting its injury investigation; and whether the USTC failed to consider critical evidence on the operation of the Tampa sulfur market in its injury determination. The Customs Court ruled against the protestant in summary judgement on all three of these issues in 83 Customs Court 65, C.D. 4823 (1979). Furthermore, all three of these issues involved the injury determination conducted by the USTC under 19 U.S.C. 160 and 19 CFR 201 and 207 and its Rules of Practice and Procedure, and not any decision of a customs officer protestable pursuant to 19 U.S.C. 1514(a). Therefore, these injury issues are not protestable matters under the authority of the Customs Service pursuant to 19 U.S.C. 1514.

The protestant asserts that Customs used as a starting point an incorrect purchase price in ascertaining FMV. Specifically, the protestant claims that the purchase price should be the price paid by it to the foreign seller, Societe Commerciale Baezner, S.A. (Baezner). Customs determined the purchase price to be the price Baezner paid Azufrera (i.e., one of the two Mexican producers) for the sulfur f.o.b. Coatzacoalcos. The protestant claims this approach is incorrect under section 162 because the price paid by Baezner is not the price at which sulphur had been agreed to be purchased by the protestant, the person by whom of for whose account the sulfur was imported, as the protestant claims is clearly reflected on the consumption entry. We note that the file for this protest does not contain the subject consumption entry.

19 U.S.C. 160 (1978) requires the Secretary of the Treasury to determine that a class or kind of foreign merchandise is being, or is likely to be sold in the United States at less than its fair value. 19 U.S.C. 161 (1978) states that in the case of imported merchandise in which the Secretary of the Treasury has made a finding of sales at less than fair value under section 160, if the purchase price is less than the FMV there shall be levied, collected and paid a special dumping duty in an amount equal to such difference. 19 U.S.C. 162 (1978) provides that "[f]or purposes of section 160 . . . the purchase price of imported merchandise shall be the price at which such merchandise has been purchased or agreed to be purchased, prior to the time of exportation, by the person by who, or for whose account the merchandise is imported . . . less the amount, if any, included in such price, attributable to any additional costs, charges, and expenses incident to bringing the merchandise from the place of shipment in the country of exportation to the place of delivery in the United States."

The courts have stated that since value determinations made pursuant to the 1921 Antidumping Act (Act) are presumed by statute to be correct (see section 210 (19 U.S.C. 169 and 28 U.S.C. 2635), plaintiffs must prove that the district director erred in determining the adjusted foreign market values and then establish that they are entitled to the additional allowance claimed under section 202(b) of the Act. F.W. Meyers & Co. v. U.S., 72 Cust. Ct. 219, C.D. 4544 (1974). The courts have also stated that unless and until the challenging party introduces evidence to meet every material issue the value found by Customs under the Act remains unrebutted. Harold Elton Ladwig v. U.S., 81 Cust. Ct. 71, C.D. 4768 (1978). The courts additionally stated that the plaintiff must establish all the material elements of the value it claims is proper under the Act. R. Sturm, A Manual of Customs Law, 136 (1974). In this case, the protestant claims that the purchase price is ascertainable from the consumption entry which shows it as purchaser by dividing the declared value by the number of long tons entered. As stated previously, the file does not contain the subject consumption entry. In addition, the file also does not contain a copy of any invoices or sales agreement to indicate that the purchase price paid by the protestant is the price paid or agreed to be paid for the subject merchandise prior to the date of exportation. The Customs Court has looked at the sales agreement between the parties to determine the purchase price for purposes of 19 U.S.C. 162. Pasco Terminals, Inc. v. U.S., 76 Cust. Ct. 204, C.D. 4658 (1976). The Customs Court has also looked at invoices as well as the sales contract to determine purchase price for purposes of section 162. Voss International Corp. v. U.S., 82 Cust. Ct. 190, C.D. 4801 (1979). Therefore, inasmuch as the protestant has not produced evidence to establish that the district director erred in determining the purchase price nor establish its claimed purchase price the protest may not be granted.

This conclusion is supported by previous Customs decisions. Customs has ruled that the scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. HQ 956944 (November 23, 1994). In that ruling, Customs denied the protest when no evidence was submitted in support of the claim nor was there other evidence of record which could be used
to independently determine the validity of the claim. As discussed above, the protest file also contains no evidence in support of the protestant's claim. Therefore, we find this decision instructive for denying the subject protest.

The Court of International Trade (CIT) (i.e., the successor to the Customs Court) has recognized that the substantive provisions of the Act apply to unliquidated entries made prior to 1980. Timken Co. v. U.S., 10 CIT 86, 95, n. 5 (1986). If the substantive provisions of the Act apply to unliquidated entries, they would certainly apply to liquidated entries which were generally final and conclusive on all persons unless a protest was filed within 90 days after notice of liquidation. The subject entry was liquidated prior to 1980 (i.e., October 19, 1979). The CIT has also held that the application of the methodological changes of the 1979 and 1984 amendments to the formulation of FMV of entries which occurred prior to 1980 was not required by clear congressional intent and is therefore not in accordance with law. Melex USA, Inc. v. U.S., Slip. Op. 95-152, p. 85 (August 25, 1995). Therefore, the law concerning FMV as it existed at the time of entry is applicable to the subject entry.

HOLDING:

The protest is denied. The subject entry was timely liquidated. In addition, the protestant has not established that the district director erred in determining the purchase price for the subject merchandise nor established its claimed purchase price.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office, with the Customs Form 19, to the protestant no later tan 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of this decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

Director

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