HQ 230074 - Protest/AFR No. 5301-03-100259; 19 U.S.C. § 1401a(b)(3)(B); HQ 225382 (July 3, 1995); Mitsubishi Electronic America, Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994); United States v. Utex International, Inc., 857 F.2d 1408 (Fed. Cir. 1988); HQ 221591(Feb. 13, 1990); HQ 223139(Aug. 29, 1991). - United States International Trade Commision Rulings

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HQ 230074

March 9, 2004

LIQ-4-02; LIQ-11 RR:CR:DR
230074 LLB

Category: LIQUIDATION

Bureau of Customs and Border Protection
2350 North Sam Houston Parkway East, Suite 100 Attn: Jeffrey Mitchell
Houston, TX 77032

RE: Protest/AFR No. 5301-03-100259; 19 U.S.C. § 1401a(b)(3)(B); HQ 225382 (July 3, 1995); Mitsubishi Electronic America, Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994); United States v. Utex International, Inc., 857 F.2d 1408 (Fed. Cir. 1988); HQ 221591(Feb. 13, 1990); HQ 223139(Aug. 29, 1991).

Dear Mr. Mitchell:

The above-referenced protest was forwarded to this office for further review. We have considered the arguments raised by the protestant, Sidex Trading SRL Galati, as well as your office. Our decision follows.

FACTS

The subject protest covers an entry of hot-rolled carbon steel sheets in coils made on July 31, 2002. According to the entry documentation, the merchandise was exported and imported by Sidex Trading SRL Galati (Sidex), a Romanian company. At the time of entry, hot-rolled carbon steel sheet from Romania was the subject of an antidumping duty order. See Notice of Amended Final Antidumping Duty Determination and Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products from Romania, 66 Fed. Reg. 5966 (Nov. 29, 2001). The order stated that the weighted-average margin for Sidex was 16.34%. According to the CF-7501, the protestant paid a cash deposit on the merchandise.

According to the sales invoice submitted with the entry Voest Alpine Intertrading AG (Voest AG), purchased the merchandise from the Sidex pursuant to contract no. 27304 dated May 16, 2003. The merchandise was shipped from Romania to the ultimate consignee, Voest Alpine Intertrading USA, Inc., a subsidiary of Voest AG. The commercial invoice did not identify antidumping duties. According to the 7501, the sales invoice, and handwritten notes, the protestant calculated the entered value of the merchandise by taking the Delivered Duty Paid (DDP) value from the sales invoice, and subtracting freight, CBP duty, antidumping duties, user and harbor maintenance fees.

On November 20, 2002, Commerce issued liquidation instructions to The Bureau of Customs and Border Protection (CBP). The instructions informed CBP that it had not received a request for administrative review on certain hot-rolled carbon steel flat products from Romania (A-485-806). CBP was directed to “liquidate all entries for all firms” for the period of September 1, 2001 through August 31, 2002 at the cash deposit or bonding rate in effect at the time of entry with interest. The instructions further stated that the instructions constituted the immediate lifting of suspension of liquidation of the entries and merchandise for the periods listed therein. The instructions stated that there was no limitation on the release of this information

However, subsequently, on December 26, 2002, Commerce initiated a review of hot-rolled carbon steel flat products entered between May 3, 2001 and October 31, 2002. See Initiation of Antidumping and Countervailing Duty Administrative Review, 67 Fed. Reg. 78772 (Dec. 26, 2002). CBP did not have notice of the foregoing. The administrative review was rescinded on February 6, 2003. Certain Hot-Rolled Carbon Steel Flat Products from Romania: Notice of Rescission of Antidumping Duty Administrative Review, 68 Fed. Reg. 6114 (Feb. 6, 2003). As noted below, CBP did not get notice of the rescission until July 17, 2003.

On March 21, 2003, CBP liquidated the entry. The merchandise was appraised under transaction value and the antidumping duties were included in the entered value. Pursuant to Commerce’s November 20, 2002, instructions, CBP liquidated the entry.

After CBP liquidated the subject entry, on April 3, 2003, Commerce issued instructions to CBP directing it to liquidate all entries of hot-rolled carbon steel flat products made between May 3, 2001 and October 31, 2002, for all firms except, inter alia, Sidex Trading SRL/Sidex International. Further, the instructions stated that entries of merchandise from the excepted firms should not be liquidated until receipt of specific instructions and that liquidation of the merchandise should continue to be suspended.

On July 17, 2003, Commerce issued instructions informing CBP that the administrative review on hot-rolled carbon steel products from Romania for the period of May 3, 2001 through October 31, 2002 was rescinded on February 6, 2003. The instructions further stated that CBP should liquidate all of the subject merchandise for all firms for the foregoing review period at the cash deposit rate or bonding rate required at the time of entry, with interest. Although the foregoing instruction was consistent with the November 20, 2002, instruction, it did not cross-reference or refer to it.

On June 5, 2003, the protestant filed its protest and application for further review arguing that the antidumping duties should be deducted from the Delivery Duty Paid Houston invoice value and that CBP prematurely liquidated the entry.

We note that the protest is timely insofar as it was filed within 90 days of the March 21, 2003 liquidation date. See 19 U.S.C. § 1514(c)(3). Included with the protest is the purchase contract for the subject merchandise.

ISSUES

1.) Whether antidumping duties were identified separately from the price actually paid or payable by Voest AG to the protestant such that they are not included in the transaction value of the imported merchandise

2.) Whether CBP prematurely liquidated the entry

LAW AND ANALYSIS

ISSUE 1

The protestant argues that antidumping duties should not be included in the transaction value. Merchandise imported into the United States is appraised in accordance with section 402 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C. § 1401a). The primary method of appraisement is transaction value, which is defined as “the price actually paid or payable for the merchandise when sold for exportation to the United States,” plus amounts for certain statutorily enumerated additions to the extent not otherwise included in the price actually paid or payable. The transaction value of imported merchandise does not include “customs duties and other federal taxes currently payable on the imported merchandise by reason of its importation,” provided such customs duties and other federal taxes are identified separately from the price actually paid or payable and any additions thereto. 19 U.S.C. § 1401a(b)(3)(B). For purposes of this decision, and inasmuch as we understand that the buyer and seller of the imported merchandise are not related, we have assumed that transaction value is the appropriate method of appraisement.

In HQ 545304(Jan. 4, 1994), “we determined that antidumping duties constitute ‘customs and other Federal taxes’ such that they would not be included in transaction value, provided the amount of the duties was identified separately from the price actually paid or payable for the imported merchandise.” HQ 547612(Dec. 27, 2001). In the instant case, the antidumping duties are listed on the entry summary. The terms of sale for the subject merchandise were DDP, and the price included antidumping duties paid by the seller. The purchase contract separately identifies the antidumping duties from the price of the imported merchandise. The purchase contract separately identifies the antidumping duties from the price of the imported merchandise. Accordingly, the antidumping duties at issue should not have been included in the transaction value. To this end, however, please note that the antidumping duties “currently payable” are the actual duties, which are determined at the time of liquidation based on the rate in effect for the subject entries. See HQ 547612, at 4-5.

ISSUE 2

The protestant argues that CBP prematurely liquidated the entries because as of the date of the protest (June 5, 2003), CBP had not received liquidation instructions. The protestant therefore requests, without citation to authority, that the bill be cancelled, the liquidation rescinded, and the entry be accepted as entered.

First, the entry was not prematurely liquidated. CBP received liquidation instructions on November 20, 2002, directing it to liquidate all entries of hot rolled carbon steel flat products made between September 1, 2001 and August 31, 2002, for all firms, at the cash deposit or bonding rate at the time of entry. CBP’s role 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.” HQ 225382 (July 3, 1995); Mitsubishi Electronic America, Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994). Insofar as the subject entry was filed on July 31, 2002, the entry was subject to the November 20, 2002, liquidation instruction. Therefore, CBP March 21, 2003, liquidation was not premature. We note that although CBP received an instruction, subsequent to liquidation, directing it to “continue to suspend” liquidation of the protestant’s entries for the period of May 3, 2001 to October 31, 2002, CBP had no legal obligation to re-evaluate the entry to determine if that post-liquidation instruction was applicable to the protestant’s entry. See Fujitsu Compound Semiconductor, Inc v. United States, 246 F. Supp. 2d 1334 (Ct. Int’l Trade 2003)(1520(c)(1) case)(holding that for CBP to make mistake in failing to take an action, the protestant must show that CBP had a legal obligation to take that action). Second, even if CBP did prematurely liquidate the entry, CBP cannot rescind or “unliquidate” a premature liquidation. United States v. Utex International, Inc., 857 F.2d 1408 (Fed. Cir. 1988); HQ 221591(Feb. 13, 1990); HQ 223139(Aug. 29, 1991). However, CBP can reliquidate or liquidate an entry as entered if that result is correct.

HOLDING

1.) In accordance with 19 U.S.C. § 1401a(b)(3)(B), the antidumping duties are not included in transaction value. The protest should be GRANTED as to this issue.

2.) CBP did not prematurely liquidate the entry. The protest should be DENIED as to this issue.

In accordance with Section 3A(11)(b) of CBP Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles Harmon, Director
Commercial Rulings Division

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