Slip Op. 00-152
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Judge Judith M. Barzilay
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E.I. DUPONT DE NEMOURS & COMPANY :
Plaintiff, :
Court No. 97-12-02091
v. : Public Version
UNITED STATES OF AMERICA, :
Defendant. :
:
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[Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Partial Summary
Judgment denied.]
Decided: November 15, 2000.
Crowell & Moring LLP (Barry E. Cohen, John I. Blanck, Jr.), for Plaintiff.
David W. Ogden, Assistant Attorney General, United States Department of Justice; Joseph I.
Liebman, Attorney in Charge, International Trade Field Office; (Saul Davis), Karen P. Binder,
Ellen C. Daly, United States Customs Service, Office of the Chief Counsel, Of Counsel, for
Defendant.
MEMORANDUM DECISION AND ORDER
BARZILAY, JUDGE:
INTRODUCTION
This case is before the court on cross-motions for summary judgment. Plaintiff
(“DuPont”), a domestic importer, contests the Defendant’s (“Customs”) appraisal of its imported
chemical, diuron, on the basis of computed value rather than transaction value and the denial of
duty-free entry under the Generalized System of Preferences (“GSP”). The statutes at issue are:
19 U.S.C. § 1401a(b)(1) (1994), 19 U.S.C. § 1401a(d)(1), 19 U.S.C. § 1401a(e)(1), and 19 U.S.C.
Court No. 97-12-02091 Page 2
§ 2463 (1994).1 Defendant moves for partial summary judgment on the theory that at the time of
entry the information before Customs supported only computed value as a basis of appraisal and
DuPont did not demonstrate that the diuron met the requirements of duty-free entry under the
GSP. Defendant further claims that DuPont is now estopped from presenting new evidence
before the court that was not presented to Customs administratively. The court denies both
Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Partial Summary
Judgment. There are material issues of fact as to the proper appraisement of the imported diuron
and Defendant’s motion must be denied as a matter of law.
I. JURISDICTION
This court has jurisdiction under 28 U.S.C. § 1581(a) (1994), which provides for judicial
review of a denied protest filed in accordance with the provisions of 19 U.S.C. § 1514 (1994).
II. BACKGROUND
At issue before this court is the importation of the agricultural herbicide “diuron
technical” or “diuron flake” (“diuron”). Pl.’s Statement of Material Facts not in Dispute, at ¶ 1
(“Pl.’s Statement”); Def.’s Resp. to Pl.’s Statement of Material Facts not in Dispute, at ¶ 1 (Def.’s
Resp.”). Diuron is produced from the chemical reaction of dichloropheny isocyanate (“DCPI”)
and dimethylamine, anhydrous (“DMA”). Pl.’s Statement, at ¶ 3; Def.’s Resp., at ¶ 3. Diuron is
manufactured by DuPont’s wholly owned subsidiary DuPont do Brasil (“do Brasil”). Pl.’s
Statement, at ¶ 1; Def.’s Resp., at ¶ 1. Do Brazil, a Brazilian corporation, sold the diuron at issue
1
These provisions define and explain, respectively, transaction value, deductive value,
computed value, and the requirements for the Generalized System of Preferences.
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to DuPont for [ ] per kilogram. Pl.’s Statement, at ¶ 6; Def.’s Resp., at ¶ 6. On April 5, 1995
DuPont imported the diuron into the United States. Pl.’s Statement, at ¶ 5; Def.’s Resp., at ¶5.
DuPont claimed [ ] per kilogram as its declared value for the diuron. Pl.’s Statement, at ¶ 6;
Def.’s Resp., at ¶ 6. It also claimed the imported diuron was a product or manufacture of a
beneficiary developing country (“BDC”) and asserted duty-free entry under the GSP. Id.
Customs rejected DuPont’s claims and used computed value to determine the appraised value of
the diuron. Pl.’s Statement, at ¶ 11; Def.’s Resp., at ¶ 11. Customs valued the diuron at $6.35 per
kilogram, denied duty-free entry, and liquidated the entry at a rate of 12.8 percent ad valorem.
Plaintiff protested Customs’ liquidation and, upon denial of its protest, commenced this action.
III. STANDARD OF REVIEW
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” USCIT R. 56(d). Moreover, summary judgment is a favored procedural device ‘“to secure
the just, speedy and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1); Sweats Fashions, Inc. v. Pannill Knitting Co.,
833 F.2d 1560, 1562 (Fed. Cir. 1987). But “summary proceedings are not intended to substitute
for trial when it is indeed necessary to find material facts.” Scripps Clinic & Research
Foundation v. Genentech, Inc., 927 F.2d 1565, 1570 (Fed. Cir. 1991) (citing Meyers v. Brooks
Shoes, Inc., 912 F.2d 1459, 1461 (Fed. Cir. 1990)). Whether a disputed fact is material is
identified by the substantive law and whether the finding of that fact might affect the outcome of
the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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IV. DISCUSSION
A. DuPont is not estopped from presenting evidence it did not present administratively.
Customs argues that DuPont should be estopped from presenting evidence before this
court that it did not present administratively. Customs bases its position on a novel combining of
several statutory provisions beginning with the statutory presumption of correctness that attaches
to Treasury Secretary decisions. See 28 U.S.C. § 2639(a)(1) (1994). The decisions of this court
and the Federal Circuit are clear that the presumption does not attach unless an underlying factual
dispute exists. “[W]e squarely held that the statutory presumption of correctness under § 2639 is
irrelevant where there is no factual dispute between the parties.” Rollerblade, Inc. v. United
States, 112 F.3d 481, 484 (Fed. Cir. 1997) (citing Goodman Mfg. L.P. v. United States, 69 F.3d
505, 508 (Fed. Cir. 1995); See also Anhydrides & Chems., Inc. v. United States, 130 F.3d 1481,
1485-86 (Fed. Cir. 1997). Customs argues that in this case the court should follow the Federal
Circuit’s reasoning in a recent case discussing the presumption of correctness as it applies to
Internal Revenue Service decisions. See Bubble Room, Inc. v. United States, 159 F.3d 553, 568
(Fed. Cir. 1998). For the reasons that follow, the court declines the invitation.
Customs contends that it has the authority to use the best information available to it when
an importer fails to provide documentation necessary to support the importer’s appraisement
claims. Congress has given Customs the authority to “fix the final appraisement of merchandise
by ascertaining or estimating the value . . . by all reasonable ways and means in [Customs’]
power, any statement of cost or costs of production in any invoice, affidavit, declaration, other
document to the contrary notwithstanding . . . .” 19 U.S.C. § 1500(a) (1994). In addition to
express statutory authority to estimate value, Customs points to the reasonable care requirements
Court No. 97-12-02091 Page 5
of 19 U.S.C. § 1484 (1994) which impose an obligation on the importer to provide “such other
information . . . as is necessary to enable the Customs Service to properly assess duties on the
merchandise. . . .” 19 U.S.C. § 1484(a)(1)(B)(i). Taking these two provisions together, Customs
argues that if an importer has not provided the necessary documentation at the administrative level
it may not present such documentation before the court.
The fundamental flaw with Customs’ argument is that it conflicts with another statutory
provision stating that the court’s determination in reviewing a case contesting the denial of a
protest pursuant to 28 U.S.C. § 1581(a) is based on the record the court makes. See 28 U.S.C. §
2640(a)(1) (1994). Holding that an importer is estopped from presenting new evidence limits the
court’s express statutory authority to develop a record. See ITT Corp. v. United States, 24 F.3d
1384, 1389 (Fed. Cir. 1994).2 Courts are as hesitant to adopt rules that narrow their authority as
they are to adopt those that expand it. See Swisher Int’l., Inc. v. United States, 205 F.3d 1358,
1366 (Fed. Cir. 2000) (citing Eurasia Import Co., Inc. v. United States, 31 C.C.P.A. 202, 211-12
(1944)). A court should avoid interpretations that unnecessarily place one or more provisions of
the statute in conflict. See Princess Cruises, Inc. v. United States, 201 F.3d 1352, 1362 (Fed. Cir.
2
In ITT the court held that at a trial de novo additional evidence that was not previously
provided administratively to Customs, could be introduced to substantiate a mistake of fact
claim. Therefore, the court could consider the additional evidence and order reliquidation of the
imported merchandise.
A principal purpose of trial de novo under § 2640(a), after all, is to enable
importers to prove the truth of the assertions they have made to Customs. While a
prudent importer would submit all its supporting documentary evidence along
with its timely notice alleging mistake of fact before Customs’ consideration in
order to facilitate a prompt and favorable decision by Customs, neither statute nor
case law precludes court-ordered reliquidation under § 1520(c)(1) after a trial de
novo.
ITT Corp., 24 F.3d at 1388.
Court No. 97-12-02091 Page 6
2000) (“It is a long-held tenet of statutory interpretation that one section of a law should not be
interpreted so as to render another section meaningless.”).
Customs argues that its position renders all of the statutory provisions in harmony because
any other reading would render 19 U.S.C. § 1484 a nullity. However, there is a better way of
viewing 19 U.S.C. § 1484 that saves the conflict between it and 28 U.S.C. §§ 2638 and 2643(b)
(1994), while preserving the court’s authority to develop a record.3 Customs has authority to
initiate civil penalty proceedings against an importer for fraud, gross negligence and negligence.
See19 U.S.C. § 1592 (1994). The legislative history accompanying the reasonable care legislation
states that an importer who fails to use reasonable care may be liable for civil penalties. See H.R.
Rep. No. 103-361(I), at 121 (1993), reprinted in 1993 U.S.C.C.A.N. 2552, 2671. Here, if
Customs believes that Plaintiff failed to exercise reasonable care, its remedy is through civil
penalty proceedings. Thus, it is through reference to the reasonable care requirements as they
relate to the civil penalty provisions of 19 U.S.C. § 1592 that all of the statutory provisions can be
read in harmony, and no violence done to the court’s authority.
Finally, the court does not find Custom’s argument regarding the presumption of
correctness persuasive. The Federal Circuit did not hold in Bubble Room that it was error to
permit the taxpayer to introduce evidence before the Court of Federal Claims that it did not
present to the IRS. Rather, in setting forth the applicable standard of review, the court noted that
the taxpayer had the burden of proving both the error of the Internal Revenue Commissioner’s
determination and of proving her entitlement to the refund amount claimed. See Bubble Room,
3
28 U.S.C. § 2638 provides that the court may consider any new ground raised before it
if the argument applies to the same merchandise and is related to the same administrative
decision. 28 U.S.C. § 2643(b) sets out the court’s options if it cannot arrive at the correct
decision.
Court No. 97-12-02091 Page 7
Inc., 159 F.3d at 561. Nowhere in the court’s decision does it mention that the presumption of
correctness prohibited the taxpayer from presenting evidence not presented to the Commissioner.
In fact, the court remanded the case for the Court of Federal Claims to determine whether the
taxpayer had provided enough evidence to overcome the presumption of correctness and to show
her entitlement to the claimed refund. See Bubble Room, Inc., 159 F.3d at 568. Therefore, the
case does not support the legal principle that the Plaintiff is estopped from presenting evidence it
did not present to Customs.4 Accordingly, the court denies Custom’s motion for Partial Summary
Judgment and will review DuPont’s evidence as required by 19 U.S.C. § 2640(a)(1) without
regard to whether it was presented to Customs in the administrative proceeding below.
B. Further findings of fact are required to determine if the diuron is entitled to duty-
free entry.
Merchandise which is the product of a beneficiary developing country (“BDC”) is eligible
for duty-free entry into the United States if it is directly imported from the BDC and the sum of
the cost or value of the merchandise produced in the BDC when added to the direct costs of
processing operations performed in the BDC is not less than 35 percent of the appraised value of
the merchandise. See 19 U.S.C. § 2463(a)(2)(A) (1994). Both parties agree that the only criterion
at issue is whether 35 percent of the appraised value of the diuron is of Brazilian origin. Customs
contends that DuPont did not present enough credible evidence to prove that the direct costs of
processing operations were “at least 35 percent of the appraised value.” Def.’s Mem. in Opp’n to
Pl.’s Mot. for Summ. J., at 23-29 (“Def.’s Opp’n”). Customs alleges that DuPont’s inclusion of
4
Customs concedes that the Federal Circuit does not accord its legal determinations a
presumption of correctness. See Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J., at 10 (“Def’s
Reply”). It notes that it is raising the argument to preserve it for appeal. See id.
Court No. 97-12-02091 Page 8
the DCPI costs were erroneous because DuPont failed to show that the DCPI used to produce the
imported diuron was a product of Brazil. Id. at 28-29. Therefore, Customs rejected DuPont’s
claim that the DCPI costs should be included in the BDC local content costs. With the exclusion
of DCPI costs, Customs found that “direct costs of processing operations” performed in Brazil
were not “35 percent of the appraised value,” denied duty-free entry, and liquidated the diuron at
12.8 percent ad valorem.
Central to resolving this issue is the ability to trace the origin of the DCPI used in the
production of the diuron at issue in this case. In a Headquarters Ruling in 1993, Customs
reviewed the duty-free eligibility of imported Brazilian diuron. See Headquarters Ruling 557015
(June 28,1993) (“HR”). HR 557015 held that only the DCPI of Brazilian origin could be applied
to the production costs for GSP eligibility requirements. Id. at 7.
The value of the Brazilian-origin DCPI may be included toward the 35% value-
content requirement, if Customs can identify the exported shipments by lot and
batch productions and the amount of domestic and foreign DCPI can be identified
for each such batch or lot of production.
Id. at 11.
DuPont admits both local and imported DCPI were used generally in the production of diuron.
Pl.’s Statement, at ¶ 11. However, DuPont contends the DCPI used in the production of the
imported diuron in this case was of Brazilian origin. Pl.’s Statement, at ¶ 11. Therefore, the cost
of the DCPI should have been included in the “direct costs of processing operations” and counted
toward the 35 percent statutory requirement.
The parties disagree on the credibility of do Brasil’s records regarding the origin of the
DCPI used in producing the imported diuron. Customs argues that do Brasil has failed to keep
proper accounting records regarding the source, use, and costs of DCPI. DuPont has “freely
acknowledged that its regular DCPI inventory records for the years 1991 to 1993 did not, by
Court No. 97-12-02091 Page 9
themselves, accurately reflect local DCPI costs.” Reply Mem. in Supp. of Pl.’s Mot. for Summ. J.,
at 22 (“Pl.’s Reply”). Likewise, DuPont “has acknowledged to Customs that the local content
records of DuPont do Brasil for the years prior to 1994 were not maintained for the ready
extraction of GSP information . . . .” Id. at 21-22. However, DuPont argues “that new record-
keeping was instituted in 1993” and after 1993 its accounting system accurately reflected local
DCPI inventory and product costs. Id. at 22. Although the past record-keeping problems do not
prove the 1995 DCPI records are inaccurate, questions still remain regarding do Brasil’s ability to
properly track DCPI costs under its “new” record-keeping system.
DuPont has submitted documentary evidence as part of its motion to support its claim for
GSP. They include employee affidavits, letters, invoices, and a sworn statement from a supplier’s
employee attesting to the Brazilian origin of the DCPI. However, this evidence does not
conclusively support do Brasil’s ability to track the Brazilian DCPI through to its export of the
diuron at issue. Specifically, do Brasil’s cost sheets need further explanation and investigation.
The cost sheets are faded and difficult to interpret. Additionally, many terms are in a foreign
language and some of the terms have many sub-components that factor into the final cost figures.
An example of this is the term “DCPI-Prochrom-M. Externo D.” that appears on do Brasil’s cost
sheets. Customs understands this term to mean “the cost of duty for DCPI imported by Prochrom
[DuPont’s Supplier].” Def.’s Opp’n, at 25. Therefore, Customs contends, these records reflect
that the DCPI was not of Brazilian origin and the costs associated with the imported DCPI are not
local Brazilian DCPI costs. DuPont claims “both Brazilian domestic and imported raw material
could cause costs to be accumulated in this account, for such expenses as local freight and storage.
Thus, the name of category (“DCPI-Prochrom-M. Externo D.”) does not reveal whether or not the
DCPI is imported” and contends this illustrates Customs’ erroneous interpretation of the cost
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sheets. Pl.’s Reply, at 23. However, without the benefit of direct testimony and cross-
examination, the court would be accepting DuPont’s explanation of these records in direct conflict
with the court’s duty to critically examine the moving party’s evidence. “In considering whether
material facts are in dispute, the evidence must be considered in a light most favorable to the non-
moving party, drawing all reasonable inferences in its favor, as well as all doubts over factual
issues.” Int’l Trading Co. v. United States, 24 CIT__,__, 110 F. Supp 2d 977, 981 (2000) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Anderson, 477 U.S. at 255; Mingus
Construction, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). Therefore, the court
determines that further fact findings are necessary to establish the material fact of the origin and
cost of the DCPI used in the production of the imported diuron. At trial, DuPont must show that
it can accurately track the origin and specifically account for the costs associated with the
Brazilian DCPI. Customs will be given the opportunity to test the credibility of these showings
through cross-examination and its own evidentiary presentations.
C. Further findings of fact are required to determine the proper diuron valuation.
19 U.S.C. § 1401a provides the statutory framework for the valuation of imported goods.
The statute creates a hierarchy of valuation methods. When appraising merchandise, Customs
must start with the primary method, transaction value, which represents “the price actually paid or
payable for the merchandise when sold for exportation to the United States” 19 U.S.C. §
1401a(b)(1). If transaction value cannot be determined or used, the statute sets forth the following
preference order for obtaining merchandise valuation: (1) transaction value of identical
merchandise, (2) transaction value of similar merchandise, (3) deductive value, (4) computed
Court No. 97-12-02091 Page 11
value, (5) derived value. See 19 U.S.C. §§ 1401a(a)(1)(A-F).
DuPont argues the [ ] per kilogram price it paid do Brasil should be used as the
transaction value. However, do Brasil is a wholly owned subsidiary of DuPont and, thus, the
corporations are “related parties.” See 19 U.S.C. § 1401a(g)(1)(F). Even though transaction value
is the preferred statutory valuation, when the parties are related there must be a showing that “the
circumstances of the sale of the imported merchandise indicates that the relationship between such
buyer and seller did not influence the price actually paid or payable. . . .” 19 U.S.C. §
1401a(b)(2)(B). To determine that the sale was not influenced by the relationship, the court must
determine if the transaction is bona fide and at arm’s length. See S.Rep. No. 96-249, at 115
(1979), reprinted in 1979 U.S.C.C.A.N. 381, 501.
Section 1401a(b)(2)(B) promulgates two methods for determining if transaction value is
applicable in related party transactions. See VWP of America, Inc. v. United States, 175 F.3d
1327, 1335 (Fed. Cir. 1999). The first method requires the court to examine the circumstances of
the sale to determine if the relationship influenced the price. See Id.; 19 U.S.C. § 1401a(b)(2)(B).
“The second method involves comparing the transaction value between the related buyer and
seller to determine whether it ‘closely approximates’ either the transaction value for identical or
similar merchandise in sales to unrelated buyers in the United States or the deductive or computed
value of identical or similar merchandise.” VWP, 175 F. Supp. at 1335 (citing 19 U.S.C. §
1401a(b)(2)(B)(i-ii)). For the court to properly apply the standards of either method, it must
examine the [ ] sale price of the diuron.
The regulations set out several ways Customs determines if the relationship of the parties
influenced the price. 19 C.F.R. § 152.103(l) provides:
Customs will examine relevant aspects of the transaction, including the way in which the
Court No. 97-12-02091 Page 12
buyer and seller organize their commercial relations and the way in which the price in
question was arrived at in order to determine whether the relationship influenced the price.
...
If it is shown that the price is adequate to ensure recovery of all costs plus a profit which is
equivalent to the firm’s overall profit realized over a representative period of time (e.g. on
a annual basis ), in sales of merchandise of the same class or kind, this would demonstrate
that the price has not been influenced.
19 C.F.R. § 152.103(l)(1)(i), (iii) (1992).
To support its contention that transaction value is the proper basis even though the parties are
related, Dupont claims the price was negotiated at arm’s length and do Brasil had negotiating
power with respect to the transfer price. Mem. in Supp. of Pl.’s Mot. for Summ. J., at 14. DuPont
also points out it was do Brasil’s counter-offer that eventually became the price agreed upon by
the parties. Id. at 15. Dupont further argues it set up a transfer price methodology “to satisfy the
Internal Revenue Code’s requirements, as well as the requirements of other relevant foreign
income tax laws. . . .” Id. at 15-16. Although these facts are offered as evidence of an arm’s
length agreement, a closer look at the negotiated price of the diuron at issue creates material
factual issues regarding the validity of the price.
The original transfer price offered by DuPont was [ ]. Id. at 14. Then because of
overhead cost concerns in the United States, Dupont suggested the transfer price be set at [ ]. Id.
Do Brasil’s response to DuPont was a counter-offer of [ ]. DuPont agreed to the [ ] price in
January of 1994. Id. DuPont contends the negotiations illustrate do Brazil’s ability to freely
negotiate the price of the diuron. However, Customs contends that DuPont did influence the
price. Customs offers the deposition of Bart D. Ruby, who is employed by DuPont as a Customs
Import/Export Manager, as evidence that DuPont controlled the negotiations and influenced the
sale price. Customs argues that if DuPont’s expenses rose, they could renegotiate the price.
Court No. 97-12-02091 Page 13
Def.’s Opp’n., at 17 (citing Ruby Dep., at 62-65). Conversely, if do Brazil’s expenses increased
they could not renegotiate the price. Id. Thus, DuPont could hold do Brasil to the price or
renegotiate, but do Brasil could not renegotiate the price even if its expenses drastically increased.
Therefore, Customs contends that the negotiated terms of the sale were extremely advantageous
for Dupont and, therefore, not characteristic of a sale between unrelated parties. For the court to
determine if the sale was an arm’s length agreement, further findings of fact are required to
ascertain if DuPont’s relationship with do Brazil influenced the sale price.
To satisfy the profit requirement of 19 C.F.R. § 152.103(l)(1)(iii), DuPont claims, at the [
] sale price, do Brazil made a gross margin of [ ]. See Pl.’s Reply, at 6. Customs argues
that after costs are factored in, the [ ] selling price did not allow do Brasil to recover its product
cost. See Def.’s Opp’n, at 16. Specifically, Customs contends that the diuron product costs did
not include all manufacturing costs and that general expenses and profit were not added to do
Brasil’s diuron product costs. Id. Therefore, Customs argues, do Brazil sold the diuron at a loss.
Without first determining do Brasil’s diuron product cost, the court cannot decide whether do
Brasil sold the diuron at a price above its cost and at a level to recover adequate profit.5
As 19 U.S.C. § 1401a mandates, the primary method of merchandise valuation is
transaction value. Therefore, until the court can reach a determination regarding the applicability
5
DuPont has not offered evidence to prove the transaction value under the second
method, which compares the value at issue to a “test value.” See 19 C.F.R. § 152.103(l)(2). In
the event it becomes an issue at trial, the court will also need to determine Brazil’s diuron
product costs. The second method presents two ways to test the validity of the transfer price by
comparing it to certain reliable appraisements. The first compares the sale between the related
parties and determines if it “closely approximates” the transaction value of identical or similar
merchandise in sales to unrelated buyers in the United States. 19 U.S.C. § 1401a(b)(2)(B)(i).
The second requires the importer to demonstrate that the transaction value closely approximates
deductive value or computed value for identical or similar merchandise. 19 U.S.C. §
1401a(b)(2)(B)(ii). The diuron product costs will be important in the analysis of either.
Court No. 97-12-02091 Page 14
of transaction value, it cannot consider secondary valuation methods.
Section 1401a(a)(1) sets forth one primary method of valuation and five secondary
methods. The primary method of valuation is the “transaction value” of the merchandise
provided for under 19 U.S.C. § 1401a(b)(1). . . . If transaction value, as defined in §
1401a(b)(1), cannot be determined or cannot be used, then Customs must appraise the
imported merchandise by looking to the secondary valuation methods in the order listed in
§ 1401a(a)(1) until an appraisal is obtained.
VWP, 175 F.3d at 1331 (citations omitted).
DuPont argues that if transaction value is not applicable, then deductive value should be the
method used to appraise the diuron. Customs, having rejected the use of transaction value,
contends computed value is the proper method of appraisement. Before examining the merits of
the deductive value and computed value claims, the court will first resolve the factual issues
involved in the transaction value appraisal and determine if transaction value is the applicable
appraisal method for the imported diuron.6
The court finds that genuine issues of material fact exist regarding the valuation and duty-
free entry of the imported diuron. The record presented here with regard to both the issue of
valuation and the issue of GSP eligibility is inadequate to be adjudicated by summary means.
Therefore, the court denies Plaintiff’s Motion for Summary Judgment.
6
28 U.S.C. § 2639(a)(1) provides; “the decision of the Secretary of the Treasury. . .is
presumed to be correct. The burden of proving otherwise shall rest upon the party challenging
such decision.” The presumption of correctness can be rebutted by a preponderance of the
evidence. See St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 768-770 (Fed. Cir.
1993). Therefore, if DuPont proves its claim that transaction value is the proper appraisal
method, it would meet its burden and overcome the presumption of correctness that attaches to
Customs’ factual determination that computed value is the correct appraisal method.
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CONCLUSION
For the foregoing reasons it is hereby,
ORDERED that Plaintiff’s Motion for Summary Judgment is denied; and it is further
ORDERED that Defendant’s Cross-Motion for Partial Summary Judgment is denied; and it
is further
ORDERED that trial should proceed on all issues raised in Plaintiff’s complaint; and it is
further
ORDERED that the parties shall consult and, to the extent they are able to agree, submit a
proposed order governing trial preparation, in the manner provided by the court, within thirty days
from the date of this decision. In the event a trial is not desired, the parties are to submit within thirty
days a joint status report to the court describing an alternate resolution to the case.
Dated: ___________________ ___________________________
New York, NY Judith M. Barzilay
Judge