Acquisition 362, LLC v. United States, No. 22-1161 (Fed. Cir. 2023)
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Acquisition imported tires manufactured by Shandong from China. Shandong tires were subject to a countervailing duty order; Acquisition deposited estimated duties for the entries at the "all others" rate of 30.61%. Commerce initiated an administrative review of the duty order covering 2016 entries, instructing Customs to suspend the liquidation (final assessment of the duties owed) of entries under review. Before the review was completed, Shandong withdrew. Commerce ordered Customs to liquidate Shandong-manufactured entries imported in 2016. The Acquisition entries were liquidated with final duties assessed at 30.61%. Importers that wish to challenge the liquidation of their entries can file a protest within 180 days, 19 U.S.C. 1514(a)(5), (c)(3)(A). Acquisition did not do so. Commerce later set the final duty rates for the 2016 entries at 15.56% for “non-selected companies under review.” Acquisition then filed protests to Customs’ failure to refund the difference between the 30.61% rate and the 15.56% rate, arguing that Shandong was the same company as another company that had remained under review.
Customs denied the protests as untimely. The Federal Circuit affirmed the dismissal of Acquisition’s subsequent complaint. The Trade court lacked subject matter jurisdiction. Acquisition could have timely protested the liquidations of these entries on the theory that Customs had improperly liquidated them because the manufacturer of Acquisition’s goods was participating in an administrative review.
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