Importer Seeks Refunds of AD/CVD After Selecting Entry Date Prior to Scope Ruling

Three entries of crystaline silicon photovoltaic (CSPV) products should not have been assessed antidumping and countervailing duties since the importer properly selected entry dates on its entry summary that preceeded the effective date of a scope ruling that found them covered by AD/CVD orders, Puerto Rico company Aireko Construction argued in a June 4 motion for summary judgment. Though Aireko had indicated the newly selected entry dates in a timely amendment to its protest, CBP ignored the amendment when it assessed AD/CV duties as if the entries had been filed after the scope ruling took effect, Aireko said (Aireko Construction LLC. v. United States, CIT #20-00128).

About $1 million in AD/CV duties are at stake in the challenge. The arrival date for the three entries all fell between Dec. 14 and Dec. 21, 2014. Aireko elected entry dates of Dec. 19 for two of the entries and Dec. 22 for the other; the scope ruling that found the entries subject to the orders on solar cells from China was effective for Aireko entries on or after Dec. 23, 2014. CBP liquidated the entries in September 2016, and Aireko filed a protest. The company subsequently amended its protest in November 2019 to reflect that it had elected entry dates prior to the effective date of the scope ruling.

Nonetheless, when CBP came to a decision on the protest in 2020 following CIT's decision to sustain Commerce's scope ruling, it denied the protest "without any reference to the amendment to the protest." Aireko also didn't get a chance to request that the protest be voided for CBP to consider the amendment, because the protest denial was received over 90 days from denial, past the 30-day deadline. Aireko filed this second lawsuit.

"While the entry dates on the scope ruling request differ from the entry dates on Aireko's [entry summaries], Aireko had the lawful right to select the entry dates on the [CBP Form] 3461s," the company's motion said. "CBP liquidated the three entries based on the [scope ruling] dated Dec. 23, 2014. This was an unlawful liquidation. There were no pending liquidation instructions from Commerce on Aireko's entry dates," it said.