Two for One

This being the last day of 2013, I am trying to do some real and virtual desk cleaning. Part of that is making sure I have reviewed the relevant CIT cases for the year. It turns out I am behind by three. Here is a brief discussion of two of them:

United States v. Alejandro Santos and Alejandro Santos, CHB

This decision follows the entry of a default judgment against a customhouse broker who apparently misidentified entries of pesticides as animal fat and misidentified the importer of record. The broker also made unsupported claims for duty-free treatment under the NAFTA and other violations. Customs and Border Protection issued a prepenalty and penalty notice informing him of a $30,000 penalty to be assessed. Santos waived service but did not appear to defend the claims against him. The first round of this case was discussed here.

Given the facts presented in the unchallenged complaint, the Court of International Trade found that Santos violated a number of regulations enforced by Customs and Border Protection. Consequently, a penalty was appropriate. The Court stated that the violations were both numerous and qualitatively significant. Further, he had been warned previously with respect to some of the violations. Consequently, the Court found that the $30,000 penalty, which is the statutory maximum, was reasonable.

Shah Bros., Inc. v. United States

This is another case with some background. I first posted about it here. The underlying issue is the correct tariff classification of smokeless tobacco products from India known as gutkha. Customs and Border Protection initially classified it as snuff rather than as chewing tobacco. The importer challenged that classification in the Court of International Trade. The government has now agreed with the classification of the merchandise subject to the case and, therefore, has moved to "confess judgment." While that may sound good, the importer is annoyed because it actually wants a binding decision on the classification of the merchandise to prevent future litigation on the same point. Unfortunately, because Customs and Border Protection agreed with Shah Bros. in the case before the Court, there is no longer a "case or controversy" for the Court to resolve. Further, this is not a case where the plaintiff will not be able to secure relief in repeated entries. Rather, the importer got the relief it requested. consequently, the Court dismissed the case as now being moot.

Two down, one to go.

Comments

Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Target on Finality

Image
In the last post , about the Federal Circuit’s very important decision on due process and allegations of evasion of antidumping duties, I made a snarky, offhand comment that the government believes “liquidation is magic.” That was in the context of the government arguing that Customs’ liquidation of entries mooted an appeal, thereby taking away the importer’s right to further judicial review. I said that knowing full well that I still needed to write this post summarizing Target Corp. v. United States in which Target made what I want to be a valid and righteous argument that Customs’ improper liquidation of entries at a favorable rate of antidumping duty prevents the Court of International Trade from ordering Customs to collect the legally applicable duties. But it turns out that while liquidation is an important legal step, in at least one unusual circumstance it is not sufficiently powerful to overcome the full force of an Article III court. Understanding this case requires a lot
Read more

CAFC: EAPA Process Really Does Violate Due Process

Image
Hot on the heels of my complaining about how the EAPA law and process is stacked against importers, the Court of Appeals for the Federal Circuit has issued an important decision that will have a major impact on how those cases work. If you are unfamiliar with evasion cases under the Enforce and Protect Act and how Customs and Border Protection handles them, go back and look at these two posts: Part 1 , Part 2. Royal Brush Manufacturing, Inc. v. United States , is the decision in an evasion case against Royal Brush involving pencils allegedly transshipped from China through the Philippines. Customs determined that there was evasion of an antidumping duty order based in part on evidence that was not disclosed to Royal. Specifically, Customs sent a representative to the facility in the Philippines to photograph the interior and provide a report. Customs refused to disclose all the photographs to Royal. Moreover, CBP's report concluded that the facility did not have sufficient capacit
Read more