CIT Rules Refund for AD Cash Deposit on Auto Glass from China Is Time-Barred

December 28, 2011 by Elizabeth Parker|Penalties and Courts

The Court of International Trade has ruled to dismiss a case in which C.B. Imports Transamerica Corp. sought a refund of a cash deposit it made on an entry of automotive safety glass from China that was subject to an antidumping duty order (A-570-867) at the time of entry. The CIT dismissed the case as it found C.B. Imports' refund claim was made after the statutory two-year limit and thus was time-barred.

Importer Sought Refund of AD Cash Deposit After AD Order Was Revoked

C.B. Imports, an importer located in Puerto Rico, imported an entry of automotive safety glass from China in September 2002. U.S. Customs and Border Protection entered the goods in October 2002 subject to an antidumping (AD) duty of 124.50%, requiring C.B. Imports to make a $51,250 cash deposit. CBP liquidated the entry on February 6, 2004 with a doubling of AD duties and then reliquidated the entry on February 27, 2004 to correct the erroneous doubling of duties.

C.B. Imports claimed that the AD duty order for automotive safety glass from China was revoked on June 5, 2007 and, on August 24, 2009, requested CBP refund its cash deposit. CBP responded on August 26, 2009 that it would not refund the deposit because the entry had already been liquidated.

(See ITT's Online Archives 04102265 for summary of the 124.50% AD rate for automotive glass from China for the period 09/19/2001 -- 03/31/2003.)

CIT Dismissed Case as Refund Claim Was Beyond Statutory 2 Year Limit

The CIT ruled to dismiss this case as C.B. Imports' claim under to 28 USC 1581(i) was time-barred. Actions brought pursuant to 1581(i) must be brought within two years after the cause of action first accrues -- when a claimant has, or should have had, notice of the final agency act or decision being challenged. However, C.B. Imports filed suit in the CIT on February 17, 2011 to challenge CBP's February 27, 2004 liquidation of its entry- thus its refund claim was far beyond the statutory two-limit.

Giving C.B. Imports the benefit of the doubt, the CIT assumed that the cause of action accrued when the AD duty order was revoked on June 5, 2007 and C.B. Imports became eligible for the refund of its cash deposit. Using this date as the date of accrual, the CIT stated that C.B. Imports' refund claim under 1581(i) was time-barred as of June 6, 2009. However, C.B. Imports did not request a refund until August 24, 2009, which was still beyond the two-year limit.

(C.B. Imports also argued that it wasn't subject to the statute of limitations applicable to 1581(i) claims because it had an independent cause of action under section 10 of the Administrative Procedures Act (APA) (5 USC 702). However, to hear an APA claim, the CIT must have an independent basis for jurisdiction under section 1581. As C.B. Imports did not assert a timely 1581(i) claim, the CIT stated it could not assert a cause of action under the APA.)

(Slip Op. 11-156, dated 12/14/11)