HQ 224399: Application for Further Review of Protest No. 3001-89-000060; Antidumping Duties; 19 U.S.C. 1504 Dear Sir:

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 224399

                          July 19, 1993

LIQ-4-01/LIQ-11-CO:R:C:E 224399 PH

CATEGORY:  Liquidation

District Director of Customs
1000 Second Avenue
Suite 2200
Seattle, Washington 98104-1049

RE:  Application for Further Review of Protest No. 3001-89-000060;
     Antidumping Duties; 19 U.S.C. 1504
 
Dear Sir:

     The above-referenced protest was forwarded to this office for
further review.  We have considered the points raised by your
office and the protestant.  Our decision follows.

FACTS:

     According to the file, on August 15, 1978, the importer
entered certain merchandise (transformers and accessories, etc.)
from Italy.  The protestant issued, as surety, an Immediate
Delivery and Consumption Entry Bond (single entry) on July 19,
1978, for the merchandise in the amount of $205,000.  On July 27,
1978, the protestant issued, as surety, an Immediate Delivery and
Consumption Entry Bond (single entry) (Dumping) for the merchandise
in the amount of $16,700.

     The merchandise under consideration was the subject of an
antidumping finding (Treasury Decision (T.D.) 72-161).  No cash
deposit of antidumping duties was required or collected.  The
protestant surety states that it received no notice of suspension
of liquidation with regard to the entry under consideration.

     Customs sent a "Request for Information" to the importer on
May 29, 1981, and information relating to certain price adjustments
was provided by the importer by letter of June 11, 1981.  By Notice
of Action (CF 29) dated June 16, 1981, the importer was advised
that Customs proposed a value advance with regard to the
merchandise.  The file contains a request, dated July 1, 1981, that
action be deferred on the June 16, 1981, Notice of Action to permit
the preparation of a reply, but contains no reply.

     By Notice of Action dated March 31, 1988, the importer was
advised that the entry was in the liquidation process and that
dumping duties in the amount of $177,665.52 were being assessed. 
This was pursuant to C.I.E. N-169/70 (Supplement 13), dated
February 2, 1988, and the notice of Final Results of Antidumping
Administration Review published in the Federal Register on December
10, 1987 (52 FR 46806).  The entry was liquidated on July 22, 1988,
with antidumping duties in the amount of $177,665.52 and interest
on the antidumping duties from August 23, 1978 (stated to be the
"date of payment"), to the date of liquidation.  On September 8,
1988, a protest of the liquidation was filed by the broker on
behalf of the importer (this protest, not under consideration in
the instant protest, was denied on July 23, 1992).  On November 4,
1988, demand was made on the protestant surety.

     The protestant states that the party (stated to have held
title in the merchandise at the time of entry) for whom the
importer acted as agent in importing the merchandise under
consideration was placed under "Extraordinary Administration" in
Italy in June of 1981.  According to the protestant, this is an
insolvency proceeding under Italian law in which the assets of the
party holding title in the merchandise are transferred to a
successor company and the predecessor is left with only the
liabilities.  Therefore, according to the protestant, "after the
transfer of assets pursuant to the Italian Extraordinary
Administration, there was neither an entity nor assets with which
the surety could pursue its rights to subrogation in the event it
was held liable for antidumping duties under its bond."

     On January 23, 1989, the protestant filed the protest under
consideration.  The grounds for the protest were:  (1) the surety
claimed that it did not issue a bond for the payment of antidumping
duties covering this entry; (2) dumping duties were assessed in
excess of the amount reflected in the assessment instructions of
the International Trade Administration (ITA), Department of
Commerce, and interest was calculated from an incorrect principal;
(3) the entry should have been deemed liquidated as entered because
no notice of suspension of liquidation was provided to the surety;
(4) because no notice of suspension of liquidation was provided to
the surety, the bond was breached to the prejudice of the surety,
which discharged the surety's liability under the bond; (5) failure
to liquidate the entry within 90 days after the suspension of
liquidation was terminated should have resulted in a deemed
liquidation of the entry; and (6) no deduction was made for the
value of United States fabricated components under item 807.00 or
800.00, Tariff Schedules of the United States (TSUS).  Further
review for the protest was requested and granted.

     With regard to the second ground for protest above, we
consulted with the ITA.  That Agency recommended denial of the part
of the protest contending that dumping duties were assessed in
excess of the amount reflected in the assessment instructions,
stating that "... the correct amount of dumping duties [was]
assessed on [the entry]."  With regard to the issue of interest
charged on the antidumping duties, that Agency stated that interest
on overpayments and underpayments of antidumping duty assessed
under 19 U.S.C. 1677g is not applicable to entries subject to the
instructions of the applicable CIE notice and recommended that
Customs grant this part of the protest. 

     The protestant filed a memorandum, dated June 30, 1992, in
support of its protest in which it expanded on the "deemed
liquidation" issues in the protest.

ISSUE:

     May the protest in this case be granted?

LAW AND ANALYSIS:

     Initially, we note that the protest was timely filed (i.e.,
within 90 days of the demand upon the protestant surety; see 19
U.S.C. 1514(c)(2)).  With regard to the requirement in 19 U.S.C.
1514(c)(2) for a certification that the protest is not being filed
collusively to extend another authorized person's time to protest,
we note that a timely protest was filed on behalf of the importer. 
The decisions protested are protestable under 19 U.S.C. 1514 (the
exception in 19 U.S.C. 1514(b) (see, Nichimen America, Inc. v.
United States, 938 F. 2d 1286 (1991 Fed. Cir.)) is not applicable
because Customs implementation of the ITA instructions for
assessing antidumping duties is protested, not the antidumping
determination itself).

     In regard to the contention that the protestant surety did
not issue a bond for the payment of antidumping duties covering
the entry, the protestant did issue two Immediate Delivery and
Consumption Entry Bonds (Single Entry) (one with the notation
"Dumping") for the entry under consideration.  These bonds bind
the principal and surety, "in consideration of the release of [the
covered shipment] before the full amount of duties and taxes
imposed upon or by reason of importation has been finally
determined ... to pay any and all such duties and taxes found to
be due on the shipment referred to, but not in excess of the amount
of [the bonds]" (the total amount of the bonds is $221,700).  If
the contention is that antidumping duties are not included in the
meaning of "duties and taxes", as used in the bonds, see C.J. Tower
& Sons v. United States, 21 CCPA 417, 71 F.2d 438 (1934), and
Imbert Imports, Inc. v. United States, 67 Cust. Ct. 569, 576, 331
F. Supp. 1400 (1971); aff'd 60 CCPA 123, 475 F.2d 1189 (1973).  The
protest is DENIED in this regard.

     In regard to the contention that the dumping duties were
assessed in excess of the amount reflected in the assessment
instructions of the ITA, the antidumping duties on this entry are
in accordance with the assessment instructions in C.I.E. 
N-169/70.  As stated in the FACTS portion of this ruling, we
consulted with the ITA in this regard and that Agency confirmed
that "... the correct amount of dumping duties [was] assessed on
[the entry]."  The protest is DENIED in this regard.

     As for the interest charged on this entry, although the
protestant's contention that the interest was calculated from an
incorrect principal must fail (on the basis of the determination
in the immediately preceding paragraph), the ITA advised that no
interest on the antidumping duties should have been charged in this
case.  In this regard we note that the entry and the antidumping
finding under consideration were made before the effective date of
the applicable statute (19 U.S.C. 1677g) and that no cash deposit
of antidumping duties was required or made.  Therefore, the protest
is GRANTED in regard to the interest charged on the antidumping
duties on the entry under consideration (see section 107, Pub. L.
96-39, set out as a note under 19 U.S.C. 1671, and Canadian Fur
Trappers Corp. v. United States, 12 CIT 612, 691 F. Supp. 364
(1988); aff'd, 7 Fed. Cir. (T) 136, 884 F.2d 563 (1989), and Hide-
Away Creations, Ltd. v. United States, 8 CIT 286, 598 F. Supp. 395
(1984); see also, Timken Co. v. United States, 777 F. Supp. 20 (CIT
1991)).

     The resolution of the contentions by the protestant that the
entry should have been deemed liquidated, either because of the
alleged failure of Customs to give notice to the surety of the
suspension of liquidation or because of the failure to liquidate
the entry within 90 days after the termination of the suspension
of liquidation, and that the bond was breached to the prejudice of
the surety because of the alleged failure of Customs to give notice
to the surety of the suspension of liquidation, is governed by the
effective date of the applicable statute and regulation.  The
"deemed liquidated" provisions upon which the protestant relies in
this regard were enacted in 19 U.S.C. 1504 by Pub. L. 94-410,
section 209(a), 92 Stat. 902.  These provisions were made effective
"to the entry or withdrawal of merchandise for consumption on or
after 180 days after the enactment of this Act [October 3, 1978]"
(Section 209(b), Pub.L. 95-410).  See F.W. Myers & Co., Inc. v.
United States, 9 CIT 64, 607 F.Supp. 1470 (1985); and Peugeot
Motors of America, Inc. v. United States, 8 CIT 167, 595 F.Supp.
1154 (1984), applying this effective date to section 1504.  The
regulatory provision upon which the protestant relies in this
regard is found in 19 CFR 159.12(c).  This provision was
promulgated by T.D. 79-221, effective September 10, 1979.  The date
of the entry under consideration is August 15, 1978.  Therefore,
because neither the "deemed liquidated" provisions in 19 U.S.C.
1504 nor the notice of suspension of liquidation provision in the
Customs Regulations were effective as to the entry under
consideration, the protest is DENIED in this regard.

     In regard to the protestant's contention that there was no
deduction in the entry for the value of United States fabricated
components under item 807.00 or 800.00, TSUS, the file indicates
and you state that deduction was made for American Goods Returned
under item 800.00.  In the absence of any other evidence on this
issue, the protest is DENIED in this regard (see, e.g., United
States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), regarding the
burden of proof in Customs litigation, in which the Court stated
"[d]etermination of issues in customs litigation may not be based
on supposition").

HOLDING:

     The protest is GRANTED IN PART (as to the interest on the
antidumping duties) and DENIED IN PART (as to the remaining
issues).   A copy of this decision should be attached to the Form
19 and provided to the protestant as part of the notice of action
on the protest.

                            Sincerely,




                            John Durant, Director