GSP Refund Claims Denied


In other news, the Court of International Trade has dismissed a claim seeking refunds of duties paid while GSP was lapsed. The case, Industrial Chemicals Inc. v. United States involves 65 entries on which the importer paid duties for goods that would have been duty-free if the Generalized System of Preferences was in effect. When GSP was renewed, the importer had a statutory 180-day period (ending December 28, 2015) in which to make a claim. Due to some undefined misunderstanding between the importer and its customs broker, the claim was not made until February 2, 2016. Customs promptly denied the request as untimely. The importer filed a protest challenging . . . well, something. Customs and Border Protection denied the protest and the importer sued in the Court of International Trade.

In the CIT, the United States moved to dismiss for lack of subject matter jurisdiction. There is some ambiguity about the plaintiff’s theory. The protest might be directed at the original refusal to grant GSP preferences at the time of liquidation. That theory does not work because the protest was filed well after the 180-day limit for protesting a liquidation. That protest would be invalid and would not give the Court a basis for review.

The alternative theory is that the protest addressed the denial of the request for a refund. On this front, the plaintiff was also late. The statute specifically set December 28, 2015 as the last date for claims covering entries during the period GSP had lapsed. The claim was made on February 2, 2016, which was over a month too late. Given the statute, Customs had no authority to grant the requested refunds. Apparently, if CBP has no discretion, there is no decision to be made and, therefore, no decision to protest. Hence, the protest would be invalid and would not give the Court a basis for review.

This all appears perfectly reasonable. It seems to follow from other cases where the Court held that CBP’s ministerial role in something (e.g., the collection of Harbor Maintenance Tax) did not amount to a protestable decision. Personally, I think there is a close call in many of these cases between a lack of jurisdiction and an obvious result on the merits. Could the Court have held that it had jurisdiction and then just as quickly held that Customs properly denied the protest as untimely? Same result but the importer gets its day in Court.

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