LIQ-4/11-CO:R:C:E 224162 CB
District Director
U.S. Customs Service
150 North Royal
Mobile, AL 36602
RE: Protest and Application for Further Review No. 1901-92-
100042; 19 U.S.C. 1504(a); Deemed liquidation by
operation of law; 19 U.S.C. 1504(d)
Dear Sir:
The above-referenced protest and application for further
review was forwarded to this office for further review. We have
considered the points raised and our decision follows.
FACTS:
According to Protestant, it entered certain steel products
in 1977. The merchandise was apparently subject to an
antidumping finding on carbon steel plate from Japan.
Liquidation of these entries was suspended pending advice on
assessment of antidumping duties. Although the merchandise was
subject to an antidumping finding, under the law in effect at the
time of entry, no deposit of estimated dumping duties was posted
with these entries.
On September 30, 1981, the Department of Commerce published
the results of its administrative review for the period covered
by the entries subject to this protest. Pursuant to that notice
on October 2, 1981, liquidation instructions were issued
directing Customs to liquidate entries for the time periods
reviewed for several companies. On April 17, 1986, the
Department of Commerce published its revocation of the
antidumping finding effective October 1, 1984. On April 24,
1992, Customs liquidated the subject entries and issued a bill to
Protestant for the antidumping duties.
ISSUE:
Whether there was a deemed liquidation by operation of law
of the subject entries?
LAW AND ANALYSIS:
Liquidation of an entry of merchandise constitutes the final
computation by Customs of all duties (including any dumping or
countervailing) accruing on that entry. See generally,
Ambassador Division of Florsheim Shoes v. United States, 748 F.2d
160, 1562 (Fed. Cir. 1984). The Customs Procedural Reform and
Simplification Act of 1978 (the 1978 Act) provides in section
209(a), 19 U.S.C. 1504, that an entry is deemed liquidated as
entered if Customs has not liquidated the entry within one year
from the date of entry or withdrawal from warehouse. The 1978
Act was effective as to entries or withdrawals for consumption on
or after 180 days after the enactment of the Act (Oct. 3, 1978).
Thus, only entries or withdrawals made on or after April 1, 1979,
were covered by the 1978 Act.
Previous to the 1978 Act, there was no time limit for the
liquidation of an entry. Dart Export Corp. et al. v. United
States, 43 CCPA 64, C.A.D. 610 (1956), cert. denied, 352 U.S.
824, 77 S. Ct. 33, 1 L. Ed. 2d 48 (1956). The Court in Dart
Export stated that the law prescribed no time limit within which
the collector shall make the original liquidation. This
conclusion is supported by the legislative history of the 1978
Act. In the statement of Reason for Change contained in S. Rep.
No. 95-788 at 832, it is stated:
Reason for change.--The provisions adopted by the commit-
tee [section 209] would increase certainty in the customs
process for importers, surety companies, and other third
parties with a potential liability relating to a customs
transaction. Under the present law, an importer may learn
years after goods have been imported and sold that
additional duties are due, or may have deposited more money
for estimated duties than are actually due but be unable to
recover the excess for years as he awaits liquidation. . . .
The entries at issue were made on November 17, 1977. As
stated above, the time constraints provided for under 19 U.S.C.
1504 only apply to entries made on or after April 1, 1979.
Therefore, contrary to protestant's argument, the subject entries
were not deemed liquidated by operation of law.
In an additional submission protestant contends that the
doctrine of laches prevents the assessment of antidumping duties
on the subject entries because Customs waited too long to take
action on the entries. "As a general rule, laches or neglect of
duty on the part of officers of the Government is no defense to a
suit by it to enforce a public right or protect a public
interest." Utah Power & Light Co. v. United States, 243 U.S.
389, 37 S. Ct. 387, 61 L. Ed. 791 (1917). In the instant case,
the public interest required to be protected consisted of the
revenue of the United States. Additionally, the Court of Customs
and Patent Appeals held that equitable estoppel is not available
against the Government in cases involving collection or refund of
duties on imports. See Air-Sea Brokers, Inc. V. United States,
596 F.2d 1008, 66 CCPA 64 (1979).
HOLDING:
The subject entries did not liquidate by operation of law
because the entries were made prior to the effective date of 19
U.S.C. 1504. The doctrine of laches is not a defense to the
payment of duties owed. Therefore, the subject protest should be
DENIED.
A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division