CIT Says Importer's Lack of New Evidence, 'Story-Shifting' Justifies Sustaining Evasion Finding
CBP properly found that importer Skyview Cabinet USA evaded the antidumping and countervailing duties on wooden cabinets and vanities after correcting a due process violation in the evasion proceeding, the Court of International Trade held on Nov. 27. Judge Stephen Vaden said that the court already found the evasion finding sufficient and that Skyview didn't advance any new evidence or arguments after the due process-related remand.
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In June 2023, Vaden sustained CBP's finding that Skyview evaded the orders, noting contradictions and inconsistencies in the company's submissions (see 2306200059). Nevertheless, the case was remanded in light of the U.S. Court of Appeals for the Federal Circuit's Royal Brush Manufacturing v. U.S. decision, which said parties in Enforce and Protect Act investigations are entitled to access the business proprietary information used by the agency.
With the case returned to the trade court, Vaden noted an "interesting wrinkle in pre-Royal Brush procedure" in EAPA cases, since Skyview already had access to this information under a judicial protective order issued in the case. As a result, the importer needed to introduce new "evidence into the record that would have proven exculpatory" or make an argument in its own defense before CBP.
This Skyview failed to do, the court found. Despite CBP giving Skyview "the unredacted business confidential information and an opportunity to respond," the company didn't provide any new evidence "and merely restated its previous, unsuccessful arguments," the decision said.
Vaden went on to address the changes to Skyview's substantive arguments, finding them similarly insufficient.
During the proceeding, CBP found that photographs and videos from Skyview allegedly depicting Malaysian manufacturer Rowenda's facility were not credible, though it said evidence from petitioner MasterBrand showing a lack of manufacturing capability at Rowenda's facility was reliable. The importer didn't get to see MasterBrand's evidence during the investigation.
On remand, the importer said CBP failed to take into account metadata available to it during the proceeding but made "conclusory statements that the photographs and videos were irrelevant and unreliable." Vaden said that the photographs "do not depict anything that discredits" CBP's finding, and that "Skyview’s flip-flopping on the question of who manufactured the cabinets discredits Skyview’s arguments and reinforces Customs’ determination."
Skyview said the metadata of MasterBrand's photographs and videos proves they were taken outside Rowenda's facility before the export date of the goods. The court said that even if this is true, the evidence still doesn't undermine CBP's finding, since the agency asked for "proof of actual manufacturing in Malaysia," and, in response, the company offered piecemeal photographs and videos of employees using various machines and pictures of the machines.
"The evidence still does not depict actual manufacturing of cabinetry," the decision said.
The court added that the importer "further discredited itself by changing its story once again." First, Skyview said Rowenda made the cabinets, then it said manufacturer Roxy Heritage did, then changed its story again to say it was Rowenda after all. "At this point, there should be no question as to the basic facts of the case," the decision said. "Yet, based on Skyview’s representations, the record is torn between two possible manufacturers."
It was "this type of story-shifting that led Customs to find MasterBrand’s evidence more reliable than Skyview’s," the judge held.
(Skyview Cabinet USA v. United States, Slip Op. 24-132, CIT # 22-00080, dated 11/27/24; Judge: Stephen Vaden; Attorneys: Kyl Kirby for plaintiff Skyview Cabinet USA; Ioana Meyer for defendant U.S. government; Timothy Brightbill for defendant-intervenor MasterBrand Cabinets, Inc.)