United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 116312 - HQ 230242 > HQ 229951

Previous Ruling Next Ruling
HQ 229951




October 17, 2003

HQ 229951 MK

LIQ-4-01 RR:CR:DR
CATEGORY: PROTEST

Port Director
Bureau of Customs and Border Protection
40 South Gay Street
Baltimore, MD 21202
Attention: Sandra Ceaserini

RE: Protest number 1303-02-100091; Mitsui Foods, Inc.; antidumping duties

Dear Port Director:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant, Mitsui Foods, Inc., and your office.

Our decision follows.

FACTS:

On April 16, 2002, Mitsui Foods, Inc. filed Protest number 1303-02-100091, stating that, “at the time of entry, the manufacturer’s MID was stated on the commercial invoice as INAGRDUTCHA for Agro Dutch in India Due to clerical error, the shipper’s MID [manufacturer’s identification number] was stated on the CF 7501 as NLSCEMUS3389VEN for Scelta Mushrooms in Netherlands. Based on this information, the importer respectfully requests reliquidation with a refund for the remainder of the antidumping duties paid.”

According to the Customs Form (“CF”) 7501 on November 30, 1999, the importer of record, Mitsui Foods, Inc. (“Mitsui”), made entry of goods described as “OTHR MUSHRMS, NO VINEGAR,” with entry number 653-6. These goods were classified under subheading 2003.10.00, Harmonized Tariff System of the United States (“HTSUS”). The goods are shown as imported from India and of Indian origin. The CF 7501 states “NLSCEMUS3389VEN” as the Manufacturer I.D. and Custom’s automated data collection system (“ACS”), shows a duty rate of .062% and an antidumping rate of 6.28%. This is in accordance with antidumping case number A533-813-001 listed on the CF 7501. According to the Notice of Final Determination of Sales at Less Than Fair Value: Certain Preserved Mushrooms from India, antidumping case number A-533-813, published in the Federal Register on December 31, 1998 (63 FR 72246), the Department of Commerce (“DOC”) “considered all products produced by Agro Dutch and Ponds covered by the description in the “Scope of Investigation” section, above, and sold by Agro Dutch to the Netherlands.” The 6.28% duty rate on the CF 7501 has been manually crossed off and replaced with a 2.55% rate. The computation of the new antidumping duty rate has been written in and there is a note in the margin stating “1288204 dtd 10/15/01,” presumably referring to “liquidation instructions for certain preserved mushrooms from India (A-533-813) produced by Agro Dutch Foods Ltd. (Agro Dutch).”

Also included are three commercial invoices from Scelta Mushrooms in Holland, all dated September 30, 1999 and addressed to Mitsui Foods, Inc. The first page of each invoice (invoice numbers 8752, 8751, 8753 and order numbers PO 113234, 113250-000, and 113272-000) states that “Mushrooms sliced pieces & stems,” produced by Agro Dutch, Chandigarh, India, were shipped to Mitsui Foods in New Jersey through the Port of Baltimore. The delivery address is Mitsui Foods Inc. of Norwood, New Jersey. The second page of each invoice states that Agro Dutch Foods Limited of Chandigarh, India is the shipper, and Mitsui Foods Inc. of Norwood, New Jersey is the cosignee and the party to notify (presumably upon delivery).

According to Initiation of Antidumping and Countervailing Duty Administrative Reviews, published on March 30, 2000, in the Federal Register (65 FR 16875), the Department of Commerce (“DOC”) initiated a review of Certain Preserved Mushrooms from India, A-533-813, including Agro Dutch Foods, Ltd. for the period from August 5, 1998 to January 31, 2000.

On August 13, 2001, DOC issued Certain Preserved Mushrooms From India: Final Results of the Antidumping Duty Administrative Review (66 FR 42507). The results state that where Agro Dutch Foods Ltd. is the manufacturer or exporter the dumping margin is 2.26%.

On October 15, 2001, Message number 1288204 was sent to the Directors of Field Operations and Port Directors regarding antidumping case A-533-813 for the period covered from August 5, 1998 to January 31, 2000. The message was regarding liquidation instructions for certain preserved mushrooms from India produced by Agro Dutch Foods Ltd. The message stated in relevant part:

For all shipments of certain preserved mushrooms from India produced by Agro Dutch Foods Ltd. (Agro Dutch) (A-533-813), imported by or sold to (as shown on the commercial invoice or Customs document) the following companies, entered or withdrawn from warehouse for consumption during the period 08/05/1998 through 01/31/2000, assess an antidumping liability equal to the below-listed percentage of the entered value. Manufacturer: Agro Dutch
Importer or Customer: Scelta
Antidumping Liability (percent) 2.55

According to ACS, entry number 653-6 was liquidated with 2.55% antidumping duties paid and 4.4% refunded on February 8, 2002.

On April 16, 2002, Mitsui Foods, Inc. filed the above listed Protest number 1303-02-100091.

ISSUE:

Is the Protestant entitled to a refund of the antidumping duty paid on the protested entry?

LAW & ANALYSIS:

We note initially that the instant Protest was timely filed, i.e., filed within 90 days of the liquidation of the entry (19 U.S.C. § 1514(c)(3)(BA)). Under 19 U.S.C. § 1514(a)(5) “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . the liquidation or reliquidation of an entry. . . are final unless a protest of that decision is filed within 90 days of the decision” (19 U.S.C. §1514(c)(3)(A)). The entry was liquidated on February 8, 2002, and this Protest was filed on April 16, 2002.

The Protestant states that due to a clerical error the shipper’s identification number, NLSCEMUS3389VEN for Scelta Mushrooms in Netherlands, was inserted in box 21 of the CF 7501 intended for the manufacturer’s ID. The Protestant argues that had the correct manufacturer’s ID, INAGRDUTCHA for Agro Dutch in India, been inserted the antidumping duty rate would have not been reduced to 2.55% but rather to zero.

Generally, we have held that the role of Customs in the antidumping process is "... simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation." See HQ 225382, July 3, 1995; see also Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973, 976, 977 (Fed. Cir. 1994) ("Section 1514(a) applies exclusively to Customs ‘decisions’ within the enumerated categories [and it] expressly refers to ‘decisions of the Customs service.’ Section 1514(a) does not embrace decisions by other agencies Customs has a mere ministerial role in liquidating antidumping duties under 19 U.S.C. 1514(a)(5). Customs cannot ‘modify [Commerce’s] determinations, their underlying facts, or their enforcement.’").

Here, DOC issued final results of an antidumping administrative review for the period of August 5, 1998 through January 31, 2000, that subjected “certain preserved mushrooms from India” manufactured or exported by Agro Dutch Foods Ltd to a 2.26% antidumping margin to be collected by Customs. On October 15, 2001, DOC then issued instructions to Customs that stated specifically “For all shipments of certain preserved mushrooms from India produced by Agro Dutch Foods Ltd. (Agro Dutch) (A-533-813), imported by or sold to (as shown on the commercial invoice or Customs document) the following companies, entered or withdrawn from warehouse for consumption during the period 08/05/1998 through 01/31/2000, assess an antidumping liability equal to the below-listed percentage of the entered value.Manufacturer: Agro Dutch Importer or Customer: SceltaAntidumping Liability (percent) 2.55/.”

All the invoices clearly state Agro Dutch of India as the producer of the mushrooms who then sold them to Scelta Mushroom of the Netherlands. Therefore, per liquidation instructions number 1288204 this entry was to be liquidated including antidumping duties of 2.55%, which Customs did on February 8, 2002. Regardless of what company’s identification number has been inserted in the CF 7501, antidumping duties have been properly assessed.

The Customs liquidation was based on liquidation instructions issued by DOC to Customs dated October 15, 2001 (message number 1288204)." Customs followed DOC’s liquidation instructions by liquidating the merchandise on February 2, 2002, with antidumping rates assessed according to the stated manufacturer of mushrooms.

The instructions also provided for the assessment of a zero rate of dumping duty if the Agro Duth produced mushrooms were bought from a different reseller other than Scelta. However, the entry invoice shows that Mitsui bought the mushrooms from Scelta and, therefore, were liable for dumping duties of 2.55%.

HOLDING:

The Protestant is not entitled to a refund of the antidumping duty paid on the protested entry. The Protest should be denied in full.

Consistent with the decision set forth above, you are hereby directed to deny the subject protest. 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 to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the 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,

Myles Harmon, Director

Previous Ruling Next Ruling

See also: