NEC Home Electronics, Ltd. v. United States

ORDER

Musgrave, Judge:

Upon consideration of plaintiffs’ motion for leave to file proposed remand order and defendant’s opposition to the proposed remand order as not being in conformity with NEC Home Elecs., Ltd. v. United States, No. 94-1390, Slip Op. (Fed. Cir. Apr. 2, 1990), it is hereby

Ordered that this case is remanded to the Department of Commerce; and it is further

Ordered that, upon remand, (1) the Department of Commerce will consider plaintiffs’ Japanese commodity tax argument, advanced in support of the claim that NECHE’s sales to NECSCs were made at arm’s length and, therefore, should have been used to calculate foreign market value, based upon the information contained in the administrative record with respect to this argument, including the affidavit of Mr. Ken-taro Kano; and,

(2) if the Department of Commerce rejects plaintiffs’ commodity tax argument and refuses to use NEC’s related-party sales in the home market for calculating foreign market value, the Department of Commerce will consider the evidence and arguments presented by plaintiffs with regard to their claim for a level-of-trade adjustment, including the affidavits of Messrs. Kazuyoshi Hatamiya and Sadao Yamazaki; and (a) if the Department of Commerce finds either of plaintiffs’ methods for calculating the level-of-trade adjustment satisfactory, it will grant the adjustment; and (b) if the Department of Commerce finds both plaintiffs’ methods for calculating the level-of-trade adjustment unsatisfactory, it will reject the claim for a level-of-trade adjustment, stating its reasons for the rejection; and it is further

Ordered that the Department of Commerce will file its remand results within 90 days from the date of the entry of this order; and it is further

Ordered that, within fifteen days after the filing of the remand results, plaintiffs will file their comments to the remand results, and, within fifteen days after the filing of plaintiffs’ comments, defendant and the intervenor will file their responses to plaintiffs’ comments.