LIQ-10-CO:R:C:E 221591 TG
Regional Commissioner of Customs
North Central Region
55 East Monroe St.
Chicago, Illinois 60603-5790
RE: Application for further review of Protest No. 3901-6-001276.
Dear Sir:
The above-referenced protest was forwarded to our office for
further review. We have considered the points raised by your
office and the importer. Our decision follows:
FACTS:
The protester, Mitsubishi International, entered 25,600
pounds of isocyanuric acid granular (ICA-G) on September 4, 1986.
The entry was liquidated on October 24, 1986. This protest was
filed on October 29, 1986, against the liquidation of the above
entry and the exaction of antidumping duties at the rate or
margin of 10.93%, which margin was determined in the original
antidumping duty investigation.
The protester argues that the liquidation of the entry was
premature and erroneous since the antidumping statute provides
for the liquidation of suspended entries only after an annual
review determination by the Department of Commerce of the
antidumping margin covered by the time period within which the
suspended entries fall.(19 U.S.C. 1673d, 1673e, 1675) Thus,
since no final annual review determination of antidumping margin
with respect to the time period within which the above entries
falls had been made, Customs could not have received advice from
Commerce as to the proper margin to be assessed on the above
entries. Therefore, the protester argues that the liquidation
was premature and in error and should be cancelled pending the
final results of an applicable annual review determination.
Alternatively, action on this protest should be withheld pending
publication of an annual review determination covering the time
period within which the above entries fall so that the entries
may be reliquidated and assessed with the proper amount of duty.
It is Customs' position that although the protestant is
correct in asserting that his entry was liquidated prematurely,
the remedy he seeks (cancellation of the liquidation) is not a
viable option under Customs law and regulations.
LAW AND ANALYSIS:
Customs may not unliquidate a premature liquidation. See
United States v. UTEX, CAFC Appeal 87-1414, CSD 86-21. If
Customs discovers after a liquidation and the expiration of the
time for protest that the merchandise should not have been
allowed admission into U.S. commerce, the liquidation is still
binding. A mistake in the liquidation process can be corrected
only by one of the statutory methods set forth in 19 U.S.C. 1514.
Consequently, once the protest period expires without a protest
being filed, the courts will not consider the legality of the
liquidation. In Gallagher and Asher v. U.S., 21 CCPA 313, T.D.
46832 (1933), a notice of appraisement, which was required to be
sent to the importer to make the appraisement final, was not
sent. The Customs Service liquidated the entry without sending
that statutorily required notice. However, the importer failed
to protest the liquidation within the protest period. The
Government contended that the failure to protest timely even on
the liquidation's legality barred further inquiry into that
liquidation. The trial and appellate courts agreed with the
Government.
In the UTEX case, the Court stated that it did not hold that
the liquidation was correct, but absent timely reliquidation or
protest it was final as to all aspects of the entry. The
importer, the surety, and the government are bound by and have
the right to rely on the finality of liquidation.
In Customs Ruling 721792, 722226 JL (August 3, 1983), we
held that entries of merchandise which were liquidated in
contravention of the suspension orders issued by the Department
of Commerce were liquidated as a result of a mistake of fact or
inadvertence and may be reliquidated at the lower countervailing
duty rates if relief was requested in a timely-filed application
pursuant to 19 U.S.C. 1520(c)(1), or a timely-filed protest under
19 U.S.C. 1514.
It is our view that in the current case the protester timely
filed a protest under 19 U.S.C. 1514 against the liquidation of
the entry and the exaction of antidumping duties. As stated
above, the entry was liquidated on October 24, 1986 and a protest
was filed by Mitsubishi International on October 29, 1986.
HOLDING:
Accordingly, although Customs may not unliquidate a
premature liquidation, it may grant relief under the final anti-
dumping duty determination via reliquidation pursuant to 19
U.S.C. 1514. Since a protest was timely-filed under 19 U.S.C.
1514, we advise you to grant the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division