CIT Says Lack of 'Protest' Means It Has No Jurisdiction in Chrysal Case
The U.S. Court of International Trade granted a Justice Department motion to dismiss for lack of jurisdiction in the case of Chrysal USA vs. the U.S. Chrysal had sought to challenge the tariff classification of "flower food" which was among the various products included in 17 entries of merchandise that Chrysal imported into the U.S. in 2008.
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Chrysal had cited 28 U.S.C. § 1581(a), which gives the court exclusive jurisdiction over "any civil action commenced to contest the denial of a protest." But the Justice Department said that jurisdiction is predicated on CBP's denial of a valid protest, and said no such protest was filed in this case.
A key question was whether an August 2009 letter to CBP from Chrysal's Dutch parent company constituted a "protest."
At issue are 17 entries of merchandise that Chrysal imported into the U.S. in 2008, including various plant-related products -- such as "leafshine," "Chrysal cleaner," and "rose liquid." At the time of importation, Chrysal filed entry documents with Customs claiming that the products were classifiable under assorted specified provisions of the Harmonized Tariff Schedule of the United States. In particular, Chrysal claimed that the imported "flower food" was properly classifiable under HTSUS subheading 3824.90.92 as a "chemical product[] [or] preparation[] of the chemical or allied industries" and thus subject to customs duties at the rate of 5%.
In mid-April 2009, before the subject entries were liquidated, Chrysal filed post summary adjustments with CBP, asserting that "flower food" was "wrongly classified" and seeking a refund of duties.
In August 2009, Chrysal International BV -- Chrysal's Dutch parent company -- sent Customs a letter, which Chrysal contends is the formal "protest" required as a basis for invoking this court's jurisdiction. The court said it's "noteworthy" that the Material Safety Data Sheet for "Chrysal Clear Professional 2" is not the same as the Material Safety Data Sheets (plural) for "Chrysal Clear Professional 2 T-bag" that the import specialist reviewed.
When subject matter jurisdiction is in dispute, the court said, the party asserting jurisdiction bears "the burden of showing that he is properly in court." In this case, it said, Chrysal never filed a protest so there was no denial of a protest to be appealed, and the court lacks jurisdiction.