AD Respondent Vies for Full Duty Drawback Adjustment at CIT

The Commerce Department was wrong to deny antidumping duty review respondent Noksel's claimed duty drawback adjustment due to the fact that its inward processing certificate (IPC) wasn't closed, plaintiff Noksel Celik Borun Sanayi told the Court of International Trade in a Dec. 23 brief. Noksel argued that it properly demonstrated that it qualifies for the full duty drawback adjustment since all imports and exports under the IPC have been completed and it is no longer permitted by the Turkish government to add import or export information (Noksel Celik Boru Sanayi A.S. v. U.S., CIT #21-00140).

The case concerns the final results of the 2018-2019 administrative review of the antidumping duty order on light-walled rectangular pipe and tube from Turkey. During the review, Commerce didn't grant Noksel a duty drawback adjustment since the agency wasn't convinced its IPC was closed until it could provide sufficient documentation establishing the closure by the Turkish government.

Noksel argues that it had sufficient documentation establishing such a closure, since it had applied for closure to the Government of Turkey (GOT) while certifying that it had fulfilled its import and export requirements and was no longer allowed to add import or export information. In response, the Justice Department argued that Noksel failed to exhaust administrative remedies on this claim and that it used non-record evidence to support its claims.

Noksel told CIT that it urged Commerce to accept its position that the IPC was closed, per Commerce's definition of "closed," warranting a full drawback adjustment. The agency addressed Noksel's argument that the application for closure of an IPC should be deemed sufficient, the brief said. "Noksel is raising this same issue -- whether final approval from the GOT is required for an IPC to be considered closed -- on appeal," the brief said. "Nevertheless, the parties baselessly argue that Noksel has failed to exhaust administrative remedies because it 'now raises various new arguments' in support of its position. These arguments are unsupported by the record and the precedent of the reviewing courts."

Noksel told the trade court that now that it better understands Commerce's determination as a "change of position in what constitutes IPC closure," rather than a misunderstanding of its IPC status, Noksel has included additional arguments to back its finding that an IPC is closed when it applies for closure, it said. These arguments are an extension of the same issue, so administrative remedies have been exhausted, the brief said.

The respondent then turned to the substance of its duty drawback claim, arguing that it satisfies Commerce's two-prong duty drawback test. DOJ argued that the first prong of the test wasn't satisfied. Noksel, in its brief, said that the prong is satisfied since the Turkish government's import processing regime "specifies and restricts that only exports that contain qualifying incorporated imported inputs may be used to claim drawback."