                             Slip Op. 05 - 60

             UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - -       x

TAK YUEN CORP.,                           :

                             Plaintiff, :

                  v.                      :    Court No. 00-10-00490

                                          :
UNITED STATES OF AMERICA,
                                          :
                             Defendant.
                                          :
- - - - - - - - - - - - - - - - - -       x

                             Memorandum

[Upon cross-motions as to goods from
 China that have been denied entry,
 summary judgment for the defendant.]


                                               Decided:    May 20, 2005


     Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
(Erik D. Smithweiss, Robert B. Silverman and Michael T. Cone)
for the plaintiff.

     Peter D. Keisler , Assistant Attorney General;     Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley); and Office of Assistant Chief Counsel,
U.S. Bureau of Customs and Border Protection (Edward N. Maurer), of
counsel, for the defendant.


           AQUILINO, Senior Judge:     This action is the last of four

commenced with regard to merchandise described in its complaint as

mushrooms produced in the People's Republic of China and of the

species agaricus bisporus , marinated in water, sugar, vinegar,

acetic acid, citric acid and several other ingredients.                 Among

other   things   therein,   that   complaint    avers     that   the   above-
Court No. 00-10-00490                                       Page 2

encaptioned plaintiff importer tendered duties prescribed by its

preferred subheading of the Harmonized Tariff Schedule of the

United States ("HTSUS") but that the U.S. Customs Service1 "ex-

cluded the subject merchandise from entry" on the ground that it

was within the ambit of an antidumping-duty order and that duties

pursuant thereto had not been paid.

                                  I

            The first of the four actions, CIT No. 99-03-00143,

contested a determination by the U.S. International Trade Commis-

sion of material injury by reason of imports of such merchandise

that included a finding by three of the commissioners that "criti-

cal circumstances exist with respect to subject imports from

China".    Certain Preserved Mushrooms From China, India, and In-
donesia, 64 Fed.Reg. 9,178 (Feb. 24, 1999).        The three other

voting members of the Commission had disagreed with that view,

hence the issue in that action was whether or not it, the "finding"

in the affirmative, was equivalent to a "determination" within the

meaning of the tie-vote provision of 19 U.S.C. §1677(11) 2 insofar
as the International Trade Administration, U.S. Department of Com-

    1
      Now known as the Bureau of Customs and Border Protection per
the Homeland Security Act of 2002, §1502, Pub. L. No. 107-296, 116
Stat. 2135, 2308-09 (Nov. 25, 2002), and the Reorganization Plan
Modification for the Department of Homeland Security, H.R. Doc.
108-32, p. 4 (Feb. 4, 2003).
     2
         The wording of this section is that, if the

     Commissioners voting on a determination . . . are even-
     ly divided as to whether the determination should be
     affirmative or negative, the Commission shall be deemed
     to have made an affirmative determination.
Court No. 00-10-00490                                               Page 3


merce ("ITA") was concerned.      That agency concluded that it was.

See Notice of Amendment of Final Determination of Sales at Less

Than Fair Value and Antidumping Duty Order: Certain Preserved

Mushrooms From the People's Republic of China, 64 Fed.Reg. 8,308,

8,309 (Feb. 19, 1999).     This court affirmed that conclusion and

thus dismissed the complaint.      See Tak Fat Trading Co. v. United

States, 26 CIT 46, 185 F.Supp.2d 1358 (2002).


          The second action, CIT No. 00-07-00360, contested the

determination by the ITA that the aforementioned merchandise is

within the scope of the antidumping-duty order, while the third,

CIT No. 00-08-00416, takes issue with that agency's Final Results
of Antidumping Duty Administrative Review for Two Manufactur-

ers/Exporters:   Certain Preserved Mushrooms From the People's Re-

public of China, 65 Fed.Reg. 50,183 (Aug. 17, 2000), essentially on

the ground that they should not have been subjected to that

administrative   review   since   the   merchandise   is   not   genuinely

covered by the underlying order.


          In each of those three matters, the court's jurisdiction

was invoked pursuant to 28 U.S.C. §1581(c).      The plaintiffs in the

third one obtained an immediate, preliminary injunction, suspending

liquidation of any implicated entries pending final disposition of

their complaint. Thereafter, they moved for a stay of their action

pending resolution of the second matter, CIT No. 00-07-00360, which

relief was also granted.
Court No. 00-10-00490                                       Page 4


          The plaintiffs in that second action, including the

above-named importer, also sought a stay until final decision in

this matter at bar, which, unlike the others, has been brought

pursuant to 28 U.S.C. §1581(a), but that motion was denied because

classification of merchandise by Customs does not govern an ITA

determination of the scope of an antidumping-duty order.   See Tak

Fat Trading Co. v. United States , 24 CIT 1376 (2000).   Moreover,

the ITA's determination that the plaintiffs' goods are covered by

the Notice of Amendment of Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Certain Preserved Mush-

rooms From the People's Republic of China, 64 Fed.Reg. 8,308 (Feb.

19, 1999), has been upheld in Tak Fat Trading Co. v. United States,

396 F.3d 1378 (Fed.Cir. 2005).

                                 II

          The mandate of that decision which issued April 4, 2005

has significance for this action, as able counsel have obviously

understood from the beginning, not because the ITA can dictate

classification by Customs, but because the latter must enforce

affirmative dumping determinations of the former.

                                 A

          The sum and substance of plaintiff's instant complaint is

as follows:

          9. On August 29, 2000, plaintiff submitted to
     . . . Customs . . . an Entry and Entry Summary for
     the subject merchandise under Entry No. 445-0066241-4
     requesting entry and delivery of the subject merchandise
     to plaintiff.
Court No. 00-10-00490                                       Page 5


          10. The Entry and Entry Summary assert that the
     subject merchandise is properly classifiable in subhead-
     ing 2001.90.39, HTSUS, and therefore is exempt from anti-
     dumping duties.

          11. Plaintiff tendered a deposit of regular cus-
     toms duties at the rate of 9.6% ad valorem, but did not
     tender a deposit of antidumping duties on the subject
     merchandise.

          12. On August 31, 2000, Customs excluded the sub-
     ject merchandise from entry and/or delivery, and noti-
     fied plaintiff that the . . . merchandise is subject to
     the order and requires a cash deposit of antidumping
     duties.

           13. Upon information and belief, the basis for
     Customs' decision to exclude the merchandise is Customs'
     decision to classify the subject merchandise in HTS
     subheading 2003.10.00, which provides for mushrooms pre-
     pared or preserved otherwise than by vinegar or acetic
     acid.

          14. On September 1, 2000, plaintiff filed a protest
     with the Port Director contesting Customs' decision to
     exclude the subject merchandise from entry or delivery.
     The protest was assigned . . . no. 2704-00-102410.

          15. Protest no. 2704-00-102410 was denied by
     Customs on October 5, 2000, or was denied by operation of
     law on October 1, 2000.


Following joinder of issue, the plaintiff interposed a motion for

summary judgment that focuses on the classification of its mer-

chandise, which it claims should be under HTSUS heading 2001

(2000), to wit:

     2001         Vegetables, fruit, nuts and other edible parts
                  of plants, prepared or preserved by vinegar or
                  acetic acid:

                      Other:

                           Other:
                                Vegetables:

     2001.90.39                      Other[.]
Court No. 00-10-00490                                         Page 6

                                  B

            According to plaintiff's complaint, the defendant prefers

HTSUS heading 2003 ("Mushrooms and truffles, prepared or preserved
otherwise than by vinegar or acetic acid") as the correct classifi-

cation herein.    Be that as it may, paragraphs 12-14 of its answer

deny that Customs excluded the merchandise; paragraph 13 goes on to

aver that

     the basis for the rejection of the Entry and Entry
     Summary was a determination that not all entry and
     statistical requirements had been complied with, and/or
     that the indicated values and rates of duty (including
     antidumping duties) did not appear to be correct.


Hence, defendant's answer denies that the court has jurisdiction

over this action pursuant to 28 U.S.C. §1581(a).    And it has filed

a cross-motion for summary judgment on this primary ground.


                                 (1)

            Although importers in America since the British colonial

epoch have had access to court to recover duties collected to an

unsustainable excess3, with statutes enacted last century having

codified a requirement that payment of all duties, charges and

exactions precede such entrée4, on their face the pleadings at bar

show that this controversy has not advanced that far, certainly not


     3
       See, e.g., Campbell v. Hall , 98 Eng.Rep. 848 (1774); Ste-
venson v. Mortimer, 98 Eng.Rep. 1372 (1778).
     4
       See, e.g., Tariff Act of 1930, ch. 497, Title IV, §515, 46
Stat. 590, 734-35; The Customs Courts Act of 1970, Pub. L. No. 91-
271, Title I, §110, 84 Stat. 274, 278.
Court No. 00-10-00490                                                   Page 7


to the moment specified, for example, by the Customs Courts Act of

1980, 28 U.S.C. §2637(a), when "all liquidated duties, charges, or

exactions have been paid".          As for the Tariff Act of 1930, as

amended, an importer's protest of steps taken by Customs must

satisfy the requirements of 19 U.S.C. §1514.                  See, e.g., Koike

Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed.Cir. 1999).

Subsection 1514(c)(3)(A), upon which the defendant relies, requires

that a protest of a decision be filed with Customs "within ninety

days   after   but   not   before   .   .   .   notice   of    liquidation   or

reliquidation".


            Subsection 1514(a)(4) does contemplate protest to Customs

upon exclusion of merchandise from entry, a denial of which can be

contested in the Court of International Trade.                 That is not the

essence of this action, however. Defendant's Statement of Material

Facts Not in Dispute, which has been filed pursuant to USCIT Rule

56(h), states in pertinent part:


            3. The Customs Form 7501 submitted by the plaintiff
       . . . indicated the entry Type Code in Box 2 to be "01."
       Entry Type 01 signifies a consumption entry, and Entry
       Type 03 signifies a consumption entry in which the
       merchandise is subject to antidumping duties. . . .

            4. The plaintiff did not identify an antidumping
       case number on the Customs Form 7501, and did not tender
       to Customs a deposit of antidumping duties. . . .

            5. . . . Customs rejected the Entry Summary docu-
       mentation. The rejection notice stated in part that the
       importer should "comply with instructions shown below and
       return entry package with original CF 7501 attached
       beneath corrected 7501." . . .
Court No. 00-10-00490                                       Page 8

          6. The rejection notice also stated in part that
     the "Entry is subject to dumping.    A cash deposit is
     required." Customs also indicated on the notice that the
     antidumping Case No. was "570-851-014," that the entry
     type should be "Type 03," and that the antidumping rate
     was "198.63%." . . .

           7. The Customs Forms 3461 and 7501, the Entry or
     Entry Summary Reject and the entire Entry/Entry Summary
     package were returned to the plaintiff by Customs.
     . . .

          8. The plaintiff did not resubmit the Entry and
     Entry Summary documentation to Customs. . . .

           9. The plaintiff did not tender to Customs a cash
     deposit of antidumping duties on the subject mushrooms.
     . . .


Citations omitted.   The plaintiff admits each of these representa-

tions. See Plaintiff's Response to Defendant's Statement of Mater-

ial Facts Not in Dispute, pp. 1-2.   Indeed, plaintiff's complaint

prays for judgment

     (1) classifying the subject merchandise in subheading
     2001.90.39, HTSUS; (2) directing Customs to accept
     plaintiff's entry and entry summary classifying the sub-
     ject merchandise under [that] subheading . . .; and (3)
     directing Customs to admit the subject merchandise for
     entry and delivery to plaintiff without deposit of anti-
     dumping duties.5

          Of course, this prayer was more tenable at the time

originally pleaded6, but the Court of Appeals for the Federal


     5
        Plaintiff's Complaint, p. 5. See also id., paras 16-18.
The court notes in passing that the classification prayed for
entailed a duty of 9.6 percent ad valorem as opposed to 6 cents per
kilogram drained weight plus 8.5 percent ad valorem per HTSUS sub-
heading 2003.10.00 (2000).
     6
       Cf. Tak Fat Trading Co. v. United States , 27 CIT     , 294
F.Supp.2d 1352 (2003).
Court No. 00-10-00490                                                Page 9

Circuit has now concluded, finally, that plaintiff's merchandise is

subject to the antidumping-duty order, supra.        Whereupon a hearing

was held May 12, 2005 on the parties' cross-motions herein.           Coun-

sel were unable to convince this court that it has jurisdiction to

reach now the substantive issue of classification by Customs.


            In Alberta Gas Chemicals, Inc. v. United States, 84 Cust.

Ct. 217, 226, C.R.D. 80-1, 483 F.Supp. 303, 311 (1980), the court

held that it "clearly ha[d] jurisdiction to determine the legality

of the exclusion of plaintiff's merchandise from entry for refusal

to file an antidumping bond".      This holding of the U.S. Customs

Court was founded on 28 U.S.C. §1582(a)(4), which provided subject-

matter jurisdiction over "civil actions instituted by any person

whose protest . . . has been denied . . . where the administrative

decision,   including   the   legality   of   all   orders   and   findings

entering into the same, involve[d] . . . the exclusion of merchan-

dise from entry or delivery under any provisions of customs laws"7.
That court emphasized that

     plaintiff's challenge to the legality of the finding of
     dumping as underlying the imposition of an antidumping
     bond does not involve any question of rate or amount of
     duties.

84 Cust.Ct. at 224, 483 F.Supp. at 309.        It did so to distinguish

Central Commodities Corp. v. United States, 6 Cust.Ct. 452, C.D.


    7
      The full text of that section 1582(a) is recited at 84 Cust.
Ct. 220 and 483 F.Supp. 307. That statute was supplanted by the
Customs Courts Act of 1980.
Court No. 00-10-00490                                              Page 10

514   (1941),   wherein    the   plaintiff   importer   had   protested   an

additional 25-percent countervailing duty at the submission of its

entry forms and tender of a bond to cover estimated such duties.

The Customs Court determined that the plaintiff's

      argument relates to the rate or amount of duties and the
      law gives the importer the right to protest against the
      rate or amount of duties within 60 [now 90] days after,
      but not before, liquidation.      The legality of that
      contemplated assessment cannot be determined in this
      proceeding because the rate or amount of duty has not yet
      been definitely determined.     The plaintiff must wait
      until after liquidation before he can litigate that
      issue.8

           Likewise,      this   action    contesting   classification    of

plaintiff's merchandise was commenced prematurely, given the Tariff

Act's unambiguous directive that a protest regarding a classifica-

tion decision by Customs be filed within 90 days after but not

before notice of liquidation.        See generally Defendant's Cross-

Motion, Declaration of David K. Shaw. See also United States v.

Boe, 64 CCPA 11, 17-18, 20, C.A.D. 1177, 543 F.2d 151, 156, 158

(1976):

      . . . Classification is but one step in the liquidation
      process, appraisement being another.

                                   * * *

      8
       6 Cust.Ct. at 455. The court understood its jurisdiction
under section 514 of the Tariff Act of 1930 to be limited to

      whether the words "estimated duties," which section 505
      of the Tariff Act of 1930 provides shall be deposited on
      entry, should be construed as the duties which the
      importer estimates are due or those which the collector
      estimates are payable.

Id. (holding that "it is the duty of the collector to estimate the
duties").
Court No. 00-10-00490                                        Page 11


     . . . The importer has paid the estimated duties to
     obtain entry of the merchandise. However, there having
     been no liquidation, the full amount of liquidated duties
     due can be neither known or paid. Until those duties are
     paid, the [] Court has no jurisdiction to hear any com-
     plaint concerning the classification of the merchandise
     entered.

                              * * *

          However sincere and well-intentioned may be the
     judge, an attempt, by any court, to exercise a non-
     existent jurisdiction is an exceptional circumstance of
     import most grave.


Citations omitted; italics in original.    Cf. Lowa, Ltd. v. United
States, 5 CIT 81, 84-86, 561 F.Supp. 441, 444-45 (1983), aff'd, 724

F.2d 121 (Fed.Cir. 1984).


          Furthermore, given the facts and circumstances underlying

this action, the court cannot equate the return of the entry papers

to the plaintiff with an actionable exclusion, in particular

because Tak Yuen Corp. was invited by Customs to resubmit.   Cf. In-

ner Secrets/Secretly Yours, Inc. v. United States, 19 CIT 496, 499,

885 F.Supp. 248, 251 (1985); Mast Industries, Inc. v. United
States, 9 CIT 549, 550 (1985), aff'd, 786 F.2d 1144 (Fed.Cir.

1986); Western Dairy Products, Inc. v. United States, 72 Cust.Ct.

75, 78-79, C.D. 4506, 373 F.Supp. 568, 571 (1974), aff'd, 62 CCPA

37, C.A.D. 1142, 510 F.2d 376 (1975);     In re McKesson & Robbins

(Inc.), T.D. 39511, 43 Treas.Dec. 214 (1923).   If, as seems to have

been the case, this importer considered the requested antidumping

duties a real disincentive, at least it had (and continues to have)
Court No. 00-10-00490                                              Page 12


access to the courts with regard thereto via 19 U.S.C. §1516a(a)

and 28 U.S.C. §§ 1581(c), 2631(c), 2632(c), 2636(c).         These stat-

utory provisions were codified after the controversy that resulted

in the opinion in Alberta Gas Chemicals, Inc. v. United States,

supra, during the time of which Customs, not the ITA, was directly

responsible for administering the antidumping law and for fielding

protests thereof.


           In sum, the court must conclude that it is not now

properly possessed of subject-matter jurisdiction herein pursuant

to 28 U.S.C. §1581(a) (2000).


                                    (2)

           In its papers in opposition to defendant's cross-motion

for summary judgment, the plaintiff raises (for the first time) 28

U.S.C.   §1581(i),   the   Court   of   International   Trade's   residual

jurisdiction to hear and decide certain matters with respect to

administration and enforcement of the Tariff Act of 1930, as

amended.   But the courts have held that this subsection

     may not be invoked when jurisdiction under another
     subsection of § 1581 is or could have been available,
     unless the remedy provided under that other subsection
     would be manifestly inadequate. . . . Where another
     remedy is or could have been available, the party as-
     serting § 1581(i) jurisdiction has the burden to show how
     that remedy would be manifestly inadequate.


Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir. 1987)
(citations omitted), cert. denied, 484 U.S. 1041 (1988).          See,
Court No. 00-10-00490                                            Page 13

e.g., CDCOM (U.S.A.) Int'l, Inc. v. United States, 21 CIT 435, 439,

963 F.Supp. 1214, 1218 (1997), citing Milin Industries, Inc. v.

United States, 12 CIT 658, 661, 691 F.Supp. 1454, 1456 (1988), and

R.J.F. Fabrics, Inc. v. United States, 10 CIT 735, 740, 651 F.Supp.

1431, 1434 (1986);      United States Cane Sugar Refiners Ass'n v.

United States, 12 CIT 907, 909, 698 F.Supp. 266, 267 (1988), citing

Nat'l Corn Growers Ass'n v. Baker, 840 F.2d 1547 (Fed.Cir. 1988).


             Here, the plaintiff has not shown how jurisdiction under

28 U.S.C. §1581(a) would be manifestly inadequate.          Indeed, that

section would be available -- if and when the plaintiff complies

with the outstanding, traditional requirements of Customs.9          More-

over, to the extent that the antidumping duties are and have been

the   crux   of   plaintiff's   dilemma,   the   above-referenced,   third

action, CIT No. 00-08-00416, which has been commenced pursuant to

28 U.S.C. §1581(c) to contest the ITA's Final Results of Antidump-

ing Duty Administrative Review for Two Manufacturers/Exporters:
Certain Preserved Mushrooms From the People's Republic of China, 65

Fed.Reg. 50,183 (Aug. 17, 2000), still remains to be resolved, at

least according to counsel on May 12, 2005.


                                    III

             Whatever may yet develop, for now "[w]ithout jurisdiction

the court cannot proceed at all in any cause",         Agro Dutch Indus-


      9
       Plaintiff's counsel indicated during oral argument on May
12, 2005 that his client's merchandise is still poised to enter the
United States.
Court No. 00-10-00490                                          Page 14


tries, Ltd. v. United States, 29 CIT      ,      , 358 F.Supp.2d 1293,

1296 (2005), appeal docketed, No. 05-1288 (Fed.Cir. March 22,

2005), quoting Ex parte McCardle, 74 U.S. (7 Wall.) 264, 265

(1869).    Defendant's cross-motion to dismiss this action therefore

must be granted.    Summary judgment will enter accordingly.

Decided:    New York, New York
            May 20, 2005


                                              Thomas J. Aquilino, Jr.
                                                 Senior Judge
