Tak Yuen Corp. v. United States , 29 Ct. Int'l Trade 543 ( 2005 )

Slip Op. 05 - 60
UNITED STATES COURT OF INTERNATIONAL TRADE
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TAK YUEN CORP., :
Plaintiff, :
v. : Court No. 00-10-00490
:
UNITED STATES OF AMERICA,
:
Defendant.
:
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Memorandum
[Upon cross-motions as to goods from
China that have been denied entry,
summary judgment for the defendant.]
Decided: May 20, 2005
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
(Erik D. Smithweiss, Robert B. Silverman and Michael T. Cone)
for the plaintiff.
Peter D. Keisler , Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley); and Office of Assistant Chief Counsel,
U.S. Bureau of Customs and Border Protection (Edward N. Maurer), of
counsel, for the defendant.
AQUILINO, Senior Judge: This action is the last of four
commenced with regard to merchandise described in its complaint as
mushrooms produced in the People's Republic of China and of the
species agaricus bisporus , marinated in water, sugar, vinegar,
acetic acid, citric acid and several other ingredients. Among
other things therein, that complaint avers that the above-
Court No. 00-10-00490 Page 2
encaptioned plaintiff importer tendered duties prescribed by its
preferred subheading of the Harmonized Tariff Schedule of the
United States ("HTSUS") but that the U.S. Customs Service1 "ex-
cluded the subject merchandise from entry" on the ground that it
was within the ambit of an antidumping-duty order and that duties
pursuant thereto had not been paid.
I
The first of the four actions, CIT No. 99-03-00143,
contested a determination by the U.S. International Trade Commis-
sion of material injury by reason of imports of such merchandise
that included a finding by three of the commissioners that "criti-
cal circumstances exist with respect to subject imports from
China". Certain Preserved Mushrooms From China, India, and In-
donesia, 64 Fed.Reg. 9,178 (Feb. 24, 1999). The three other
voting members of the Commission had disagreed with that view,
hence the issue in that action was whether or not it, the "finding"
in the affirmative, was equivalent to a "determination" within the
meaning of the tie-vote provision of 19 U.S.C. §1677(11) 2 insofar
as the International Trade Administration, U.S. Department of Com-
1
Now known as the Bureau of Customs and Border Protection per
the Homeland Security Act of 2002, §1502, Pub. L. No. 107-296, 116
Stat. 2135, 2308-09 (Nov. 25, 2002), and the Reorganization Plan
Modification for the Department of Homeland Security, H.R. Doc.
108-32, p. 4 (Feb. 4, 2003).
2
The wording of this section is that, if the
Commissioners voting on a determination . . . are even-
ly divided as to whether the determination should be
affirmative or negative, the Commission shall be deemed
to have made an affirmative determination.
Court No. 00-10-00490 Page 3
merce ("ITA") was concerned. That agency concluded that it was.
See Notice of Amendment of Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Certain Preserved
Mushrooms From the People's Republic of China, 64 Fed.Reg. 8,308,
8,309 (Feb. 19, 1999). This court affirmed that conclusion and
thus dismissed the complaint. See Tak Fat Trading Co. v. United
States, 26 CIT 46, 185 F.Supp.2d 1358 (2002).
The second action, CIT No. 00-07-00360, contested the
determination by the ITA that the aforementioned merchandise is
within the scope of the antidumping-duty order, while the third,
CIT No. 00-08-00416, takes issue with that agency's Final Results
of Antidumping Duty Administrative Review for Two Manufactur-
ers/Exporters: Certain Preserved Mushrooms From the People's Re-
public of China, 65 Fed.Reg. 50,183 (Aug. 17, 2000), essentially on
the ground that they should not have been subjected to that
administrative review since the merchandise is not genuinely
covered by the underlying order.
In each of those three matters, the court's jurisdiction
was invoked pursuant to 28 U.S.C. §1581(c). The plaintiffs in the
third one obtained an immediate, preliminary injunction, suspending
liquidation of any implicated entries pending final disposition of
their complaint. Thereafter, they moved for a stay of their action
pending resolution of the second matter, CIT No. 00-07-00360, which
relief was also granted.
Court No. 00-10-00490 Page 4
The plaintiffs in that second action, including the
above-named importer, also sought a stay until final decision in
this matter at bar, which, unlike the others, has been brought
pursuant to 28 U.S.C. §1581(a), but that motion was denied because
classification of merchandise by Customs does not govern an ITA
determination of the scope of an antidumping-duty order. See Tak
Fat Trading Co. v. United States , 24 CIT 1376 (2000). Moreover,
the ITA's determination that the plaintiffs' goods are covered by
the Notice of Amendment of Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Certain Preserved Mush-
rooms From the People's Republic of China, 64 Fed.Reg. 8,308 (Feb.
19, 1999), has been upheld in Tak Fat Trading Co. v. United States,
396 F.3d 1378 (Fed.Cir. 2005).
II
The mandate of that decision which issued April 4, 2005
has significance for this action, as able counsel have obviously
understood from the beginning, not because the ITA can dictate
classification by Customs, but because the latter must enforce
affirmative dumping determinations of the former.
A
The sum and substance of plaintiff's instant complaint is
as follows:
9. On August 29, 2000, plaintiff submitted to
. . . Customs . . . an Entry and Entry Summary for
the subject merchandise under Entry No. 445-0066241-4
requesting entry and delivery of the subject merchandise
to plaintiff.
Court No. 00-10-00490 Page 5
10. The Entry and Entry Summary assert that the
subject merchandise is properly classifiable in subhead-
ing 2001.90.39, HTSUS, and therefore is exempt from anti-
dumping duties.
11. Plaintiff tendered a deposit of regular cus-
toms duties at the rate of 9.6% ad valorem, but did not
tender a deposit of antidumping duties on the subject
merchandise.
12. On August 31, 2000, Customs excluded the sub-
ject merchandise from entry and/or delivery, and noti-
fied plaintiff that the . . . merchandise is subject to
the order and requires a cash deposit of antidumping
duties.
13. Upon information and belief, the basis for
Customs' decision to exclude the merchandise is Customs'
decision to classify the subject merchandise in HTS
subheading 2003.10.00, which provides for mushrooms pre-
pared or preserved otherwise than by vinegar or acetic
acid.
14. On September 1, 2000, plaintiff filed a protest
with the Port Director contesting Customs' decision to
exclude the subject merchandise from entry or delivery.
The protest was assigned . . . no. 2704-00-102410.
15. Protest no. 2704-00-102410 was denied by
Customs on October 5, 2000, or was denied by operation of
law on October 1, 2000.
Following joinder of issue, the plaintiff interposed a motion for
summary judgment that focuses on the classification of its mer-
chandise, which it claims should be under HTSUS heading 2001
(2000), to wit:
2001 Vegetables, fruit, nuts and other edible parts
of plants, prepared or preserved by vinegar or
acetic acid:
Other:
Other:
Vegetables:
2001.90.39 Other[.]
Court No. 00-10-00490 Page 6
B
According to plaintiff's complaint, the defendant prefers
HTSUS heading 2003 ("Mushrooms and truffles, prepared or preserved
otherwise than by vinegar or acetic acid") as the correct classifi-
cation herein. Be that as it may, paragraphs 12-14 of its answer
deny that Customs excluded the merchandise; paragraph 13 goes on to
aver that
the basis for the rejection of the Entry and Entry
Summary was a determination that not all entry and
statistical requirements had been complied with, and/or
that the indicated values and rates of duty (including
antidumping duties) did not appear to be correct.
Hence, defendant's answer denies that the court has jurisdiction
over this action pursuant to 28 U.S.C. §1581(a). And it has filed
a cross-motion for summary judgment on this primary ground.
(1)
Although importers in America since the British colonial
epoch have had access to court to recover duties collected to an
unsustainable excess3, with statutes enacted last century having
codified a requirement that payment of all duties, charges and
exactions precede such entrée4, on their face the pleadings at bar
show that this controversy has not advanced that far, certainly not
3
See, e.g., Campbell v. Hall , 98 Eng.Rep. 848 (1774); Ste-
venson v. Mortimer, 98 Eng.Rep. 1372 (1778).
4
See, e.g., Tariff Act of 1930, ch. 497, Title IV, §515, 46
Stat. 590, 734-35; The Customs Courts Act of 1970, Pub. L. No. 91-
271, Title I, §110, 84 Stat. 274, 278.
Court No. 00-10-00490 Page 7
to the moment specified, for example, by the Customs Courts Act of
1980, 28 U.S.C. §2637(a), when "all liquidated duties, charges, or
exactions have been paid". As for the Tariff Act of 1930, as
amended, an importer's protest of steps taken by Customs must
satisfy the requirements of 19 U.S.C. §1514. See, e.g., Koike
Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed.Cir. 1999).
Subsection 1514(c)(3)(A), upon which the defendant relies, requires
that a protest of a decision be filed with Customs "within ninety
days after but not before . . . notice of liquidation or
reliquidation".
Subsection 1514(a)(4) does contemplate protest to Customs
upon exclusion of merchandise from entry, a denial of which can be
contested in the Court of International Trade. That is not the
essence of this action, however. Defendant's Statement of Material
Facts Not in Dispute, which has been filed pursuant to USCIT Rule
56(h), states in pertinent part:
3. The Customs Form 7501 submitted by the plaintiff
. . . indicated the entry Type Code in Box 2 to be "01."
Entry Type 01 signifies a consumption entry, and Entry
Type 03 signifies a consumption entry in which the
merchandise is subject to antidumping duties. . . .
4. The plaintiff did not identify an antidumping
case number on the Customs Form 7501, and did not tender
to Customs a deposit of antidumping duties. . . .
5. . . . Customs rejected the Entry Summary docu-
mentation. The rejection notice stated in part that the
importer should "comply with instructions shown below and
return entry package with original CF 7501 attached
beneath corrected 7501." . . .
Court No. 00-10-00490 Page 8
6. The rejection notice also stated in part that
the "Entry is subject to dumping. A cash deposit is
required." Customs also indicated on the notice that the
antidumping Case No. was "570-851-014," that the entry
type should be "Type 03," and that the antidumping rate
was "198.63%." . . .
7. The Customs Forms 3461 and 7501, the Entry or
Entry Summary Reject and the entire Entry/Entry Summary
package were returned to the plaintiff by Customs.
. . .
8. The plaintiff did not resubmit the Entry and
Entry Summary documentation to Customs. . . .
9. The plaintiff did not tender to Customs a cash
deposit of antidumping duties on the subject mushrooms.
. . .
Citations omitted. The plaintiff admits each of these representa-
tions. See Plaintiff's Response to Defendant's Statement of Mater-
ial Facts Not in Dispute, pp. 1-2. Indeed, plaintiff's complaint
prays for judgment
(1) classifying the subject merchandise in subheading
2001.90.39, HTSUS; (2) directing Customs to accept
plaintiff's entry and entry summary classifying the sub-
ject merchandise under [that] subheading . . .; and (3)
directing Customs to admit the subject merchandise for
entry and delivery to plaintiff without deposit of anti-
dumping duties.5
Of course, this prayer was more tenable at the time
originally pleaded6, but the Court of Appeals for the Federal
5
Plaintiff's Complaint, p. 5. See also id., paras 16-18.
The court notes in passing that the classification prayed for
entailed a duty of 9.6 percent ad valorem as opposed to 6 cents per
kilogram drained weight plus 8.5 percent ad valorem per HTSUS sub-
heading 2003.10.00 (2000).
6
Cf. Tak Fat Trading Co. v. United States , 27 CIT , 294
F.Supp.2d 1352 (2003).
Court No. 00-10-00490 Page 9
Circuit has now concluded, finally, that plaintiff's merchandise is
subject to the antidumping-duty order, supra. Whereupon a hearing
was held May 12, 2005 on the parties' cross-motions herein. Coun-
sel were unable to convince this court that it has jurisdiction to
reach now the substantive issue of classification by Customs.
In Alberta Gas Chemicals, Inc. v. United States, 84 Cust.
Ct. 217, 226, C.R.D. 80-1, 483 F.Supp. 303, 311 (1980), the court
held that it "clearly ha[d] jurisdiction to determine the legality
of the exclusion of plaintiff's merchandise from entry for refusal
to file an antidumping bond". This holding of the U.S. Customs
Court was founded on 28 U.S.C. §1582(a)(4), which provided subject-
matter jurisdiction over "civil actions instituted by any person
whose protest . . . has been denied . . . where the administrative
decision, including the legality of all orders and findings
entering into the same, involve[d] . . . the exclusion of merchan-
dise from entry or delivery under any provisions of customs laws"7.
That court emphasized that
plaintiff's challenge to the legality of the finding of
dumping as underlying the imposition of an antidumping
bond does not involve any question of rate or amount of
duties.
84 Cust.Ct. at 224, 483 F.Supp. at 309. It did so to distinguish
Central Commodities Corp. v. United States, 6 Cust.Ct. 452, C.D.
7
The full text of that section 1582(a) is recited at 84 Cust.
Ct. 220 and 483 F.Supp. 307. That statute was supplanted by the
Customs Courts Act of 1980.
Court No. 00-10-00490 Page 10
514 (1941), wherein the plaintiff importer had protested an
additional 25-percent countervailing duty at the submission of its
entry forms and tender of a bond to cover estimated such duties.
The Customs Court determined that the plaintiff's
argument relates to the rate or amount of duties and the
law gives the importer the right to protest against the
rate or amount of duties within 60 [now 90] days after,
but not before, liquidation. The legality of that
contemplated assessment cannot be determined in this
proceeding because the rate or amount of duty has not yet
been definitely determined. The plaintiff must wait
until after liquidation before he can litigate that
issue.8
Likewise, this action contesting classification of
plaintiff's merchandise was commenced prematurely, given the Tariff
Act's unambiguous directive that a protest regarding a classifica-
tion decision by Customs be filed within 90 days after but not
before notice of liquidation. See generally Defendant's Cross-
Motion, Declaration of David K. Shaw. See also United States v.
Boe, 64 CCPA 11, 17-18, 20, C.A.D. 1177, 543 F.2d 151, 156, 158
(1976):
. . . Classification is but one step in the liquidation
process, appraisement being another.
* * *
8
6 Cust.Ct. at 455. The court understood its jurisdiction
under section 514 of the Tariff Act of 1930 to be limited to
whether the words "estimated duties," which section 505
of the Tariff Act of 1930 provides shall be deposited on
entry, should be construed as the duties which the
importer estimates are due or those which the collector
estimates are payable.
Id. (holding that "it is the duty of the collector to estimate the
duties").
Court No. 00-10-00490 Page 11
. . . The importer has paid the estimated duties to
obtain entry of the merchandise. However, there having
been no liquidation, the full amount of liquidated duties
due can be neither known or paid. Until those duties are
paid, the [] Court has no jurisdiction to hear any com-
plaint concerning the classification of the merchandise
entered.
* * *
However sincere and well-intentioned may be the
judge, an attempt, by any court, to exercise a non-
existent jurisdiction is an exceptional circumstance of
import most grave.
Citations omitted; italics in original. Cf. Lowa, Ltd. v. United
States, 5 CIT 81, 84-86, 561 F.Supp. 441, 444-45 (1983), aff'd, 724
F.2d 121 (Fed.Cir. 1984).
Furthermore, given the facts and circumstances underlying
this action, the court cannot equate the return of the entry papers
to the plaintiff with an actionable exclusion, in particular
because Tak Yuen Corp. was invited by Customs to resubmit. Cf. In-
ner Secrets/Secretly Yours, Inc. v. United States, 19 CIT 496, 499,
885 F.Supp. 248, 251 (1985); Mast Industries, Inc. v. United
States, 9 CIT 549, 550 (1985), aff'd, 786 F.2d 1144 (Fed.Cir.
1986); Western Dairy Products, Inc. v. United States, 72 Cust.Ct.
75, 78-79, C.D. 4506, 373 F.Supp. 568, 571 (1974), aff'd, 62 CCPA
37, C.A.D. 1142, 510 F.2d 376 (1975); In re McKesson & Robbins
(Inc.), T.D. 39511, 43 Treas.Dec. 214 (1923). If, as seems to have
been the case, this importer considered the requested antidumping
duties a real disincentive, at least it had (and continues to have)
Court No. 00-10-00490 Page 12
access to the courts with regard thereto via 19 U.S.C. §1516a(a)
and 28 U.S.C. §§ 1581(c), 2631(c), 2632(c), 2636(c). These stat-
utory provisions were codified after the controversy that resulted
in the opinion in Alberta Gas Chemicals, Inc. v. United States,
supra, during the time of which Customs, not the ITA, was directly
responsible for administering the antidumping law and for fielding
protests thereof.
In sum, the court must conclude that it is not now
properly possessed of subject-matter jurisdiction herein pursuant
to 28 U.S.C. §1581(a) (2000).
(2)
In its papers in opposition to defendant's cross-motion
for summary judgment, the plaintiff raises (for the first time) 28
U.S.C. §1581(i), the Court of International Trade's residual
jurisdiction to hear and decide certain matters with respect to
administration and enforcement of the Tariff Act of 1930, as
amended. But the courts have held that this subsection
may not be invoked when jurisdiction under another
subsection of § 1581 is or could have been available,
unless the remedy provided under that other subsection
would be manifestly inadequate. . . . Where another
remedy is or could have been available, the party as-
serting § 1581(i) jurisdiction has the burden to show how
that remedy would be manifestly inadequate.
Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir. 1987)
(citations omitted), cert. denied, 484 U.S. 1041 (1988). See,
Court No. 00-10-00490 Page 13
e.g., CDCOM (U.S.A.) Int'l, Inc. v. United States, 21 CIT 435, 439,
963 F.Supp. 1214, 1218 (1997), citing Milin Industries, Inc. v.
United States, 12 CIT 658, 661, 691 F.Supp. 1454, 1456 (1988), and
R.J.F. Fabrics, Inc. v. United States, 10 CIT 735, 740, 651 F.Supp.
1431, 1434 (1986); United States Cane Sugar Refiners Ass'n v.
United States, 12 CIT 907, 909, 698 F.Supp. 266, 267 (1988), citing
Nat'l Corn Growers Ass'n v. Baker, 840 F.2d 1547 (Fed.Cir. 1988).
Here, the plaintiff has not shown how jurisdiction under
28 U.S.C. §1581(a) would be manifestly inadequate. Indeed, that
section would be available -- if and when the plaintiff complies
with the outstanding, traditional requirements of Customs.9 More-
over, to the extent that the antidumping duties are and have been
the crux of plaintiff's dilemma, the above-referenced, third
action, CIT No. 00-08-00416, which has been commenced pursuant to
28 U.S.C. §1581(c) to contest the ITA's Final Results of Antidump-
ing Duty Administrative Review for Two Manufacturers/Exporters:
Certain Preserved Mushrooms From the People's Republic of China, 65
Fed.Reg. 50,183 (Aug. 17, 2000), still remains to be resolved, at
least according to counsel on May 12, 2005.
III
Whatever may yet develop, for now "[w]ithout jurisdiction
the court cannot proceed at all in any cause", Agro Dutch Indus-
9
Plaintiff's counsel indicated during oral argument on May
12, 2005 that his client's merchandise is still poised to enter the
United States.
Court No. 00-10-00490 Page 14
tries, Ltd. v. United States, 29 CIT , , 358 F.Supp.2d 1293,
1296 (2005), appeal docketed, No. 05-1288 (Fed.Cir. March 22,
2005), quoting Ex parte McCardle, 74 U.S. (7 Wall.) 264, 265
(1869). Defendant's cross-motion to dismiss this action therefore
must be granted. Summary judgment will enter accordingly.
Decided: New York, New York
May 20, 2005
Thomas J. Aquilino, Jr.
Senior Judge