SIMA Appeals relating to Subjectivity

Summaries of appeal decisions made by the CBSA pursuant to section 59(1)(a) and (e) of the Special Import Measures Act (SIMA) relating to the subjectivity of goods and the application of anti-dumping and countervailing duty assessments can be found below. Where the subjectivity of the goods is not in question, appeal decision summaries will not be posted due to the confidential nature of the applicant’s information.

Aluminum Extrusions

Appeal No: AE-1

Decision Date: April, 2017

Grounds of appeal:

The CBSA reviewed an accounting entry for the importation of certain aluminum extrusions and assessed both anti-dumping and countervailing duties. Upon appeal, it was claimed that the goods met the following exclusion:

Aluminum extrusions produced from a 6063 alloy type with a T5 temper designation and forming part of the Vario System™ 20, 30, 40, 45 and 60 series line of profiles, or equivalent, having a length of either 4.5 or 5.8 m and a straightness tolerance of +/-1.5 mm or less per 6.0 m of length, for use in those parts of mechanical systems and automated machinery, such as gantry systems and conveyors, where precise linear movement is required.

Decision: Denied

Reason:

The information provided was unclear regarding the straightness tolerance and did not include any evidence regarding the end use of the goods. As the goods did not meet all the criteria of the exclusion, they are not excluded from the finding.

Refund: N/A

Appeal No: AE-2

Decision Date: 2017-06-29

Grounds of appeal:

The importer’s position was that the goods were not subject as they were “aluminum extrusions produced from a 6063 alloy type with a T6 temper designation”, and that this initial prototype order was priced based on the cost of the aluminum only.

Decision: Denied

Reason:

The exclusion for aluminum extrusions for use in window frames is worded as follows:

Aluminum extrusions produced from a 6063 alloy type with either a T5 or a T6 temper designation, having a length of between 20 and 33 ft. (between 6.10 and 10.06 m), with a powder coat finish, which finish is certified to meet the American Architectural Manufacturers Association AAMA 2603 standard (“Voluntary Specification, Performance Requirements and Test Procedures for Pigmented Organic Coatings on Aluminum Extrusions and Panels”), for use in window frames.

The goods do not meet the minimum length threshold of 20 feet (6.1 meters). In addition, there was no evidence of alloy type or powder coat finish, and the goods were for sunroom walls and roofs. Therefore, the goods do not meet the terms of the exclusion.

The pricing of the goods is not relevant to subjectivity.

Refund: N/A

Appeal No: AE-3

Decision Date: 2017-06-29

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on certain aluminum products originating in China. The importer presented documentation showing that the aluminum goods are not produced via an extrusion process but via a die casting process.

Decision: Allowed

Reason:

Aluminum joints produced via a die casting process are not subject goods.

Refund: $5,000 to $25,000

Carbon Steel Welded Pipe 2

Appeal No: CSWP2-1

Decision Date: 2017-08-28

Grounds of appeal:

The CBSA assessed anti-dumping duty on an importation of certain carbon steel welded pipe originating in Chinese Taipei. Upon appeal, the importer contended that the goods were oil and gas line pipe made to API specifications exclusively, and thus excluded from the Finding.

Decision: Allowed

Reason:

A review of the documentation presented, the parties involved, and the goods demonstrated that the pipe was made to API specifications exclusively. The goods are thus excluded from the finding and are therefore not subject goods.

Refund: $5,000 to $25,000

Fasteners

Appeal No: F-1

Decision Date: 2017-05-10

Grounds of appeal:

The CBSA assessed anti-dumping duty based on electronic data accounting for an importation of carbon steel screws with the country of origin coded as CN (China). The importer presented documentation showing the origin as Switzerland (code CH) explaining that the improper coding was a broker error.

Decision: Allowed

Reason:

A review of the documentation submitted and vendor research demonstrates that the goods were manufactured in, and shipped to Canada from, Switzerland. Carbon steel screws originating from Switzerland are not subject to the SIMA measure in force.

Refund: $5,000 to $25,000

Appeal No: F-2

Decision Date: 2017-06-29

Grounds of appeal:

The CBSA assessed anti-dumping duty on an importation of screws originating in Chinese Taipei. The importer presented documentation claiming the screws were stainless steel and thus not subject to the finding.

Decision: Allowed

Reason:

A review of the documentation and research demonstrates that the screws are stainless steel. Stainless steel screws are no longer subject to the SIMA measure in force.

Refund: $5,000 to $25,000

Appeal No: F-3

Decision Date: 2017-06-29

Grounds of appeal:

The CBSA assessed anti-dumping duty on a few carbon steel screws originating in Chinese Taipei based on the limited information provided at the time of accounting. Upon appeal, the importer presented documentation indicating the goods are not subject to the SIMA measure in force.

Decision: Allowed

Reason:

The documentation demonstrates that the goods are special forcing screws for use as replacement parts in a Brake Anchor Pin and Bushing Service Set. The goods do not meet the definition in the Tribunal’s finding and thus not subject to the SIMA measure in force.

Refund: Less than $5,000

Appeal No: F-4

Decision Date: 2017-09-19

Grounds of appeal:

Anti-dumping duty was self-assessed at the time of importation on a consolidated shipment of carbon steel screws originating in Chinese Taipei. Upon appeal, the importer presented documentation indicating the goods are not subject to the SIMA measure in force.

Decision: Allowed

Reason:

A review of the documentation submitted demonstrates that the goods are Tinnerman style U-type spring nuts. U-type spring nuts are not subject to the SIMA measure in force.

Refund: Less than $5,000

Appeal No: F-5

Decision Date: 2017-10-16

Grounds of appeal:

Anti-dumping duty was assessed on carbon steel screws originating in Chinese Taipei and exported from the United States. Upon appeal, the importer presented documentation claiming that the screws were equivalent to the GRK RT Composite Trim head screws, which are excluded from the SIMA measure in force.

Decision: Allowed in Part

Reason:

The documentation submitted failed to demonstrate that the imported screws were equivalent to the excluded GRK screws. However, the exporter provided sufficient information to allow the CBSA to establish normal values for these screws. As a result, a partial refund of the anti-dumping duty was granted.

Refund: Over $25,000

Appeal No: F-6

Decision Date: 2017-11-23

Grounds of appeal:

Anti-dumping and countervailing duty was assessed on carbon steel screws originating in China and exported from the United States. Upon appeal, the importer presented documentation claiming that the screws were Aster screws, which are excluded from the finding.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the imported screws were Aster screws. As these screws are excluded from the finding, a full refund of the anti-dumping and countervailing duty was granted.

Refund: $5,000 to $25,000

Appeal No: F-7

Decision Date: 2017-11-29

Grounds of appeal:

Anti-dumping duty was assessed on carbon steel screws originating in Chinese Taipei and exported from the United States. The importer’s position was that the goods (assorted wood screws contained within a carrying case) were not subject as they were packaged with a pocket hole jig system as part of a tool promotion and not imported under their own tariff item.

Decision: Denied

Reason:

The CBSA, in determining whether or not goods are subject to a Tribunal finding, relies on the definition of subject goods contained within the finding, regardless of tariff classification. Additionally, the CBSA considers the nature of the product as opposed to how a product is labelled or portrayed.

Paragraph 30 in the Statement of Reasons for appeal no. AP-2008-006 provided guidance with regards to the functionality of goods packaged together and the separation of these goods for the purpose of applying anti-dumping duties under SIMA. The Tribunal is of the view that the parts must be integral to the functional purpose of a system and that separating the parts for the purpose of applying anti-dumping duties must not deprive the system of its functionality.

In this instance the screw kit included with the joinery jig system, being extraneous to the functionality of the jig system itself, is gratuitous and, as such, is considered a separate good.

Refund: N/A

Steel Grating

Appeal No: SG-1

Decision Date: 2017-07-21

Grounds of appeal:

The importer’s position was that the goods (cut and customized steel grating originating in the People’s Republic of China i.e., fabricated grating) were not subject as they formed part of steel structures, were classified under the Customs Tariff as steel structures, and thus had lost the characteristics of gratings.

Decision: Denied

Reason:

Paragraph 44 of the Canadian International Trade Tribunal (Tribunal) order RR-2015-001 states “Logically, there is a point at which grating loses its identity as grating, for example, after it is incorporated into a complex industrial structure”. The Merriam-Webster’s Collegiate Dictionary defines “incorporate” as “to unite or work into something already existent so as to form an indistinguishable whole”. This terminology is specific and distinct from other terms such as “for use in” or “part of”.

Whether or not goods are subject to a finding is based on their state or condition at the time of importation. In this case, although the imported gratings were fabricated for use in accompanying steel structures, at the time of importation the gratings were in their own separate containers, and were not physically attached, joined or wrought into a structure. They therefore had the characteristics of gratings. They were also invoiced separately at a price different than the steel structures. The Tribunals description of fabricated gratings includes finishing such as kick plates, cut-outs, nosing and welding. The use of the terms “e.g.” and “for example” indicates that this list of finishing is not exhaustive. Thus the fact that some of the grating pieces had additional finishing is not determinative.

The Customs Tariff and the principles identified in the General Interpretive Rules are not determinative of the issue of whether or not goods constitute subject goods. Rather, the question of subjectivity is based on the definition of subject goods contained in the Tribunal finding, which in this case does not include specific tariff classification(s).

Refund: N/A

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