Before Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Schall, Circuit Judge.
The opinion of the court was delivered by: Plager, Circuit Judge.
Appealed from: United States Court of International Trade Judge Richard W. Goldberg
US JVC Corporation ("JVC") appeals the United States Court of International Trade's dismissal of JVC's case for lack of jurisdiction. See US JVC Corp. v. United States, 15 F. Supp. 2d 906 (Ct. Int'l Trade 1998). The Court of International Trade found that JVC failed to protest within the statutorily mandated ninety days a premature liquidation of certain color television receivers subject to an antidumping duty order. See 19 U.S.C. § 1514(c)(3) (1994). Although the Government admits that JVC's receivers were unlawfully liquidated, under existing precedent we must affirm the trial court's dismissal of JVC's case as untimely.
This appeal stems from the following undisputed facts. JVC imported seventeen entries of color television receivers between April and November of 1990. The receivers, which were manufactured in Taiwan, were subject to an antidumping duty order. Consequently, JVC deposited estimated antidumping duties with the U.S. Customs Service ("Customs") when the receivers entered the United States. See 19 U.S.C. § 1673e (1994). After JVC deposited the estimated duties, Customs suspended the liquidation (actual assessment of duties) of the receiver entries until the Department of Commerce ("Commerce") published the results of its final determination in the administrative review covering color television receivers from Taiwan for the period of April 1990 through March 1991. Customs notified JVC of the suspension of the assessment of duties pursuant to 19 U.S.C. § 1504(c) (1994) and 19 C.F.R. § 159.12(c) (1991).
On January 9, 1992, Commerce directed Customs to continue to suspend final assessment of duties on the television receivers until "specifically instructed otherwise." Nevertheless, on February 28, 1992, Customs proceeded to assess JVC's receivers at the duty rate deposited by JVC. Concurrently, Customs posted bulletin notices of the final assessments.
Commerce published the final results of its administrative review of color television receivers on May 12, 1992. It determined that for the period of review no antidumping duties should be assessed on the particular receivers imported by JVC. Subsequently, on September 27, 1995, over three years after Customs' premature assessment of duties on JVC's color television receiver entries, Commerce instructed Customs to assess JVC's color television receivers with a dumping margin of zero percent. *fn1 Thereafter, JVC requested a refund of the antidumping duty deposits it paid for the receivers. Customs denied the request. In response, on December 26, 1995, JVC filed a protest challenging Customs's 1992 assessment of the receivers. Customs denied the protest as untimely. JVC then filed a claim in the Court of International Trade.
In its analysis of the case, the Court of International Trade noted that JVC had conceded that it failed to comply with the statutory requirements of 19 U.S.C. § 1514(c)(3) (1994) (requiring filing of a protest within ninety days after notice of liquidation). The court then concluded that the ninety-day period for filing protests following the final assessment of antidumping duties is not subject to equitable tolling. See US JVC Corp., 15 F. Supp. 2d at 910-11. Consequently, the court dismissed JVC's suit for lack of subject matter jurisdiction. See id. at 915. As further justification for dismissing JVC's claim, the Court of International Trade cited the case of Juice Farms, Inc. v. United States, 68 F.3d 1344 (Fed. Cir. 1995). See US JVC Corp., 15 F. Supp. 2d at 912-13 & n.10.
JVC appeals the Court of International Trade's dismissal of its protest of the Government's improper assessment of duties on JVC's color television receivers. We have jurisdiction to hear this appeal under 28 U.S.C. § 1295 (1994).
This court has plenary review over the legal Conclusions of the Court of International Trade, including the court's interpretation of the protest statute, 19 U.S.C. § 1514. See International Home Textile, Inc. v. United States, 153 F.3d 1378, 1380 (Fed. Cir. 1998). We review the court's factual findings for clear error. See id.
On appeal JVC argues that because Customs assessed duties on JVC's receiver entries during the suspension period, the duty assessment was null and void. The Government conceded at oral argument and in its brief that the liquidation was a premature assessment. Given this admission, under JVC's theory, the court should treat the assessments as never having occurred. A remedy for such an assessment could be to require Customs to perform the liquidation now at the 0% duty rate, thereby entitling JVC to a refund of its estimated antidumping duties. Alternatively, JVC suggests that this court has the equitable power to reset the statutory period for filing a protest, which would enable JVC to file its protest in a timely fashion. Either remedy could be fitting under the circumstances; however, ...