CIT Has Jurisdiction to Hear Case Over Lack of Full Section 301 Refunds, Importer Argues

The Court of International Trade has jurisdiction to hear a case over CBP's failure to issue full Section 301 refunds, importer FD Sales Company argued in an Oct. 8 reply brief. Although CBP "approved" the importer's protest covering 60 entries seeking the refunds, FD Sales argued that the protest was effectively denied when CBP failed to fully grant the refunds, thus giving CIT jurisdiction under Section 1581(a) (FD Sales Company, LLC v. United States, CIT #21-00224).

FD Sales brought in 60 entries of "clicking/locking vinyl flooring" under subheading 3918.10.10, which were granted exclusions from the Section 301 tariffs. The importer then sought a refund of $767,290.10 in duties paid on the goods, of which $294,342.70 was granted by CBP. In its complaint, FD Sales the entries were granted exclusions by the Office of the U.S. Trade Representative (see 2105110057).

The Justice Department then filed a motion to dismiss the case, arguing that CIT does not have jurisdiction to hear the matter. DOJ claimed that the complaint was not timely filed since it did not come 180 days after a denied protest. But the U.S. also said in its motion to dismiss that there was no denial of a protest, FD Sales pointed out.

"This is evidently based upon the fact, with which Defendant readily agrees, that the Protest was 'approved' by CBP -- or at least that was the information communicated to Plaintiff by CBP," the motion said. "In reality however, and despite the fact that CBP 'approved' the Protest, CBP failed to fully refund the Section 301 duties paid by Plaintiff. Thus, the Protest was effectively denied when CBP failed to remit all of the refund payments due to Plaintiff and 'approved' by CBP. Accordingly, the Protest was denied in part even though CBP notified Plaintiff that it had been 'approved' on November 3, 2020." Consequently, CIT has jurisdiction over 46 of the 60 entries for which a full refund was not granted, FD Sales said.