CAFC Affirms Denial of Shell's Duty Drawback Claims for HMT & ET as Time-Barred

The Court of Appeals for the Federal Circuit affirmed the Court of International Trade’s 2011 ruling against Shell’s duty drawback claims for Harbor Maintenance Tax and Environmental Tax payments. In June 2011, CIT said the claims were time barred because duty drawback claims may only be filed within the three years after exporting the substitute merchandise. Shell had filed duty drawback claims in 1995 and 1996, within the three-year window, but its claims only requested drawback on import duties, and not on the HMT and ET payments. Shell didn’t file new duty drawback claims for HMT and ET payments during the six-month grace period for untimely drawback claims offered by Congress’ 1999 amendments to the drawback statute, either.

CAFC agreed with CIT, saying Shell was required to file new claims during the 1999 grace period. The burden is on the party seeking drawback, not CBP, to show that an amount certain is eligible for refund; it was not CBP's duty to automatically refund Shell's HMT and ET payments without a request to do so, CAFC said. CAFC said Shell’s claims are time barred by the 2004 amendments to the drawback statute as well, because the 2004 amendments did not apply retroactively and didn’t change the three-month window for drawback claims.

(See ITT’s Online Archives 11062920 for summary of CIT’s June 2011 ruling, affirmed by this CAFC opinion.)