CIT Says Importer's Continuous Bond Doesn't Satisfy Duty Payment Requirement in Protest Cases
The Court of International Trade dismissed on Sept. 18 an importer’s challenge to the assessment of additional antidumping duties on nine entries of wooden bedroom furniture from China, because the importer hadn’t yet paid the duties as required for a court hearing. Importer E & S Express said CBP could have assessed at least some of the duties on a continuous bond E & S had with a surety. CIT ruled that what CBP could have done is irrelevant, because the law makes actual payment of duties mandatory before a denied protest can be challenged under 28 USC 1581(a).
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The additional AD duties had been assessed on top of the amount of the importer E&S Express’ cash deposit on nine entries, two to three years after the goods had been entered. E&S Express argued that the CBP had assessed the additional duties in error, and that the cash deposit was enough to cover the AD duties owed by the company. It filed a protest at CBP, which was subsequently denied. It then filed this challenge at CIT under Section 1581(a) denied protest jurisdiction, which requires payment of duties before a case can be heard.
Although E & S did not itself make payment of the additional duties, it had a continuous bond worth $50,000. That would be enough to cover the additional duties on six of the nine entries at issue in the case. CIT has in the past treated partial payment on all entries in a lawsuit to be a full payment on a subset of those entries, and allowed a case to proceed only on that subset. E & S said the court should do the same here, applying that $50,000 to six of the nine entries and allowing the challenge of those six entries to proceed.
CIT said the situation faced by E & S is different. The company argued that CBP should have gotten the $50,000 from the surety. But CBP said it tried and the surety didn’t pay out. The requirement for duty payment in protest denial cases is not at CIT’s discretion, the court said. And E & S is making arguments that go “several ‘ifs’ too far.” Without actual payment of the duties owed by the importer, CIT said it is legally barred from hearing the case.
(E & S Express Inc. v. U.S., Slip Op. 13-122, dated 09/18/13, Judge Ridgway)