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Tropicana Products Inc. v. United States

Decided: July 20, 1990.

TROPICANA PRODUCTS, INC., PLAINTIFF-APPELLANT,
v.
THE UNITED STATES, DEFENDANT-APPELLEE



Appealed from: U.S. Court of International Trade, Chief Judge Re.

Archer, Circuit Judge, Baldwin, Senior Circuit Judge, and Tashima, District Judge.*fn*

Baldwin

BALDWIN, Senior Circuit Judge.

Tropicana Products, Inc. ("Tropicana") appeals the decision and Judgment of the United States Court of International Trade ("CIT"), Tropicana Prods., Inc. v. United States, 13 C.I.T. 390, 713 F. Supp. 415 (CIT 1989), severing and dismissing Tropicana's protest number 1801-7-000027, covering entry numbers 81-103533-2 and 81-103789-3, from civil action number 87-10-00984, for lack of jurisdiction under 28 U.S.C. § 1581(a) (1988)*fn1 because Tropicana failed to protest within the statutory 90-day period. We affirm.

BACKGROUND

In 1981, Tropicana entered five separate shipments of frozen concentrated orange juice from Brazil into a bonded warehouse in Florida. Tropicana then diluted the concentrated orange juice in the warehouse, intending to enter it into the U.S. for consumption as non-concentrated juice and thereby incur less duty.

However, on March 6, 1987, the U.S. Customs Service ("Customs"> liquidated the two entries involved in this appeal as frozen concentrated orange juice. On the same date, Customs posted a "Bulletin Notice of Entries Liquidated," Customs Form 4333, evidencing the date of liquidation of these entries, on the public counter in the Entry Division of the U.S. Customhouse in Tampa, Florida.

According to the record, Tropicana never consulted the posted bulletin notice and only became aware of the liquidation when it received bills with increased duties. Upon the advice of counsel, it acquired copies of the consumption entries to establish the date of liquidation, However, the consumption entries lacked the stamp "Liquidated" and the date of liquidation. Tropicana's counsel telephoned Customs' Tampa office on April 14, 1987 to obtain the date, and was told that the entries had been liquidated on March 13, l987. Based upon this information which was, in fact, incorrect, counsel calculated the 90-day statutory deadline for filing a protest to be June 11, 1987, On June 5, 1987, Tropicana filed a protest against them on June 16, 1987. Customs denied both protests on the merits and Tropicana consequently initiated a civil action contesting the denials. The U.S. Government then filed a motion to sever and dismiss on the grounds that the first protest was not filed within 90 days of the notice of liquidation as prescribed by 19 U.S.C. § 1514 (1988). The CIT granted the motion and this appeal followed.

ISSUE

The issue is whether the CIT erred in determining that Tropicana's first protest was untimely because it was filed more than 90 days after the posting of the bulletin notice of liquidation.

The resolution of the above issue requires this court to consider what constitutes proper notice of liquidation for purposes of establishing a 90-day deadline for filing a protest.

Under 19 U.S.C. § 1500(e) (1988), a customs officer shall "give notice of such liquidation to the importer . . . in such form and manner as the Secretary shall prescribe in . . . regulations." The statute further provides that a protest against liquidation must be filed "within 90 days after but not before . . . notice of liquidation." 19 U.S.C. § 1514(c)(2) (1988).

The pertinent regulation, 19 C.F.R. § 159.9 (1989), provides, in part, that:

(a) Bulletin notice of liquidation. Notice of liquidation of formal entries shall be made on a bulletin notice of ...


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