The Torrington Company, Plaintiff-appellee,andfederal-mogul Corporation, Plaintiff-appellee, v. the United States, Defendant-appellee,andskf Usa Inc. and Skf France, S.a., Defendants-appellants,andaerospatiale Division Helicopteres and Aerospatialehelicopter Corporation, Defendants, 73 F.3d 378 (Fed. Cir. 1995)

SKF USA Inc. and SKF France, S.A. (SKF) move to summarily reverse the United States Court of International Trade's March 30, 1994 judgment and to remand for further proceedings. Federal-Mogul Corporation opposes. The Torrington Company does not oppose a remand with respect to the value added tax (VAT) adjustment methodology issue. The United States has not responded.

This appeal concerns the Court of International Trade's rejection of a tax-neutral methodology utilized by the Department of Commerce for adjusting the dumping margin to reflect VAT assessed on home market sales. See 19 U.S.C. § 1677a(d) (1988). The Court of International Trade designated Federal-Mogul Corp. v. United States, 834 F. Supp. 1391 (Ct. Int'l Trade 1993), as the lead case regarding this issue. On appeal, this court reversed the judgment of the Court of International Trade, concluding that a tax-neutral methodology was not precluded by the Tariff Act of 1930 and that the Department of Commerce's interpretation of the statute was not in conflict with any precedents of this court or the Supreme Court. Federal-Mogul Corp. v. United States, 63 F.3d 1572 (Fed. Cir. 1995). We remanded for further proceedings in accordance with our opinion, "including an opportunity for Commerce to inform the court whether it wishes to continue utilizing the tax-neutral methodology employed in its Final Determination." Federal-Mogul, 63 F.3d at 1582. The present appeal and others were stayed pending our decision in Federal-Mogul.

Summary disposition of a case "is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Here, it is clear that summary disposition is warranted. Federal-Mogul and Torrington acknowledge that the sole issue being reviewed in both cases is the validity of Commerce's tax-neutral methodology. However, Federal-Mogul additionally argues that this case should not be remanded at this time and that the appeal should be stayed until Commerce decides what methodology it is using in the lead case.

We agree that Federal-Mogul should continue to be the lead case for purposes of resolving the issues that remain to be considered. However, based on that decision, the judgment of the Court of International Trade in this case should be reversed in part and the case remanded so that the Court of International Trade, not this court, has jurisdiction over the case when proceedings in the lead case are resolved in the Court of International Trade. Thus, we agree with SKF that it is appropriate to reverse the Court of International Trade's judgment with respect to the VAT issue and to remand to the Court of International Trade.

Accordingly,

IT IS ORDERED THAT:

(1) The Court of International Trade's March 30, 1994 judgment is reversed in part with respect to the VAT issue. The case is remanded to the Court of International Trade.

(2) The revised official caption is reflected above.

(3) All sides shall bear their own costs.