CIT Denies Bid for Reconsideration of AD Duty Assessment Challenge

The Court of International Trade rejected an importer's bid for reconsideration of its challenge of the countervailing duty rate assessed on its tire imports. The court found for the second time that the importer lacked proper jurisdiction due to an untimely filed protest of a liquidation decision. “The lesson is both clear and stark: Don’t sit on your rights,” Judge Stephen Alexander Vaden said.

In April, Vaden originally dismissed the case, finding that the 180-day deadline for protests of CBP decisions runs from the date of liquidation, rather than the date CBP received updated assessment instructions from the Commerce Department (see 2104210066). Strategic Import Supply, the plaintiff and importer of passenger vehicle and light truck tires from China, originally filed the case seeking a lower CVD rate on its entries. In the underlying CVD administrative review, Commerce counted a 30.61% duty rate for the subject entries. After uncovering errors in the case, Commerce amended the final results and reduced the rate to 15.56%. Commerce then instructed CBP to liquidate entries at the new rate.

But for Strategic Import Supply, it was too late, as some of its entries had already liquidated more than 180 days prior to Commerce's instructions. Nevertheless, the importer filed a protest with CBP, arguing that it was valid because it was filed within 180 days of the instructions. Vaden rejected this claim, finding that the protest was challenging a Commerce decision, not a Customs one. As such, it belonged under Section 1581(c), as opposed to Section 1581(a), as the plaintiffs had claimed, Vaden said.

Strategic Import Supply then moved for reconsideration after CBP later granted another of the importer's protests pushing for the same CVD rate correction (see 2105200053). The difference between the two protests is that this second one was timely filed, whereas the original protest was not, Vaden said. “That Plaintiff later filed a timely protest of a different liquidation cannot grant the Court jurisdiction to review previous, untimely protests.”

The importer also sought to apply CIT's Section 1581(i) “residual” jurisdiction to its case, arguing that CBP acted in a manner that would give the court jurisdiction regardless of the denied protest. Not so, Vaden said, since Section 1581(i) can't be invoked when another Section 1581 subsection could have been available. “Plaintiff had at least one clear route to properly invoke this Court’s jurisdiction,” the judge said. “Had Plaintiff filed its protest within 180 days of Customs’s liquidation of the challenged entries, this Court would have had jurisdiction to review Customs’s decision.”

(Acquisition 362, LLC DBA Strategic Import Supply v. United States, Slip Op. 21-120, CIT #20-03762, dated 09/20/21, Judge Stephen Vaden. Attorneys: Heather Marx of Cozen O'Connor for plaintiff Strategic Import Supply; Hardeep Josan for defendant U.S. government)