SIMA Appeals relating to Subjectivity

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

Appeal No: AE-4

Decision Date: 2018-01-09

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of aluminum extrusions originating in China. The importer argued that the goods are shower enclosures, which are not subject to the finding.

Decision: Allowed

Reason:

A review of the documentation submitted demonstrates that the imported goods can be assembled into complete shower enclosures. As such, the goods are not covered by the definition of the subject goods.

Refund: Over $25,000

Appeal No: AE-5

Decision Date: 2018-07-06

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of aluminum extrusions originating in China. The importer argued that the goods are an irrigation piping assembly and should not subject to the finding.

Decision: Allowed

Reason:

A review of the documentation submitted demonstrates that the imported goods can be assembled into one complete irrigation system for a 67 acre farm. As such, the goods are not covered by the definition of the subject goods.

Refund: Over $25,000

Appeal No: AE-6

Decision Date: 2018-07-11

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of aluminum extrusions originating in China. The importer argued that the goods are solar panel mounts and should not subject to the finding.

Decision: Allowed in Part

Reason:

A review of the documentation submitted demonstrates that the imported goods are essentially imported in bulk. The aluminum plates are not fabricated via an extrusion process therefore they are not subject to the finding. However, the clamps are fabricated via an extrusion process and still retain the nature and physical characteristics of an aluminum extrusion. As such, the clamps are covered by the definition of the subject goods.

Refund: Over $25,000

Appeal No: AE-7

Decision Date: 2018-07-19

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of aluminum extrusions originating in China. The importer argued that the goods are not subject to the finding.

Decision: Denied

Reason:

A review of the documentation submitted demonstrates that the goods are aluminum trims originating in China. The diagram of the goods provided with the appeal shows the measurements of an aluminum profile, confirming that the goods meet the measurement criterion of the product description. The samples provided further indicate that the goods fall within the product description of the finding and no information was provided to show otherwise. Based on the information provided, the goods are covered by the definition of the subject goods.

Refund: N/A

Appeal No: AE-8

Decision Date: 2018-08-21

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of aluminum extrusions originating in China. The importer argued that the goods are not subject to the finding as they are further worked, made from a 6063 alloy type with a T5 temper designation and extruded using a specially engineered tool die.

Decision: Denied

Reason:

A review of the documentation submitted demonstrates that the goods are hollow aluminum extrusions used to create LED light fixtures. The goods were not further worked beyond the fabrication and finishing processes included in the product definition. The 6063 alloy type is one that falls within the alloy types included in the product definition. The finding includes custom-shaped extrusions therefore the fact that the aluminum was extruded through a specially engineered tool die does not exclude it from the finding. As a result, the goods are subject to the finding.

Refund: N/A

Carbon Steel Welded Pipe

Appeal No: CSWP-1

Decision Date: 2018-04-06

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of certain carbon steel welded pipe originating in and exported from the People’s Republic of China. Upon appeal, the importer contended that the goods were semi-finished post components for various leisure sporting activities and therefore not subject to the Finding.

Decision: Allowed

Reason:

A review of the documentation submitted demonstrated that the imported posts incorporated various configurations of pre-drilled holes and various welded on metal plates, lacing rods and corners making them posts and goal components for outdoor sporting activities. As such, the goods are not subject to the finding.

Refund: $5,000 to $25,000

Appeal No: CSWP-2

Decision Date: 2018-12-17

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of certain carbon steel welded pipe originating in and exported from the People’s Republic of China. Upon appeal, the importer contended that the goods were for natural gas and therefore not subject to the Finding.

Decision: Denied

Reason:

A review of the documentation submitted demonstrated that the imported goods are ERW black steel pipe in various diameters and lengths meeting ASTM A53 specifications for use with natural gas. In order to be excluded as oil and gas line pipe the pipe must be made to API specifications exclusively. In this case the goods have been made to meet ASTM A53 specifications and not API specifications exclusively and therefore do not meet the exclusion for oil and gas line pipe.

Refund: N/A

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

Appeal No: CSWP2-2

Decision Date: 2019-02-14

Grounds of appeal:

The CBSA assessed anti-dumping duty on an importation of certain carbon steel welded pipe originating in the Republic of Korea. Upon appeal, the importer contended that the goods were piping spools and therefore not subject to the finding.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the imported goods were piping spools. The piping spools are comprised of miscellaneous piping lengths and components joined together via beveling, fitting, welding, grinding and induction bending where straight lengths of pipe are transformed into curved components that have off-sets of varying degrees built to an engineering specification. As such, the goods are not subject to the SIMA measure in force.

Refund: Over $25,000

Fabricated Industrial Steel Components

Appeal No: FISC-1

Decision Date: 2018-05-18

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duties on an importation of filter press plates originating in the People’s Republic of China and exported from Italy. The importer presented documentation claiming that the filter press plates are components/parts of a filter press waste water filtration system and therefore not subject to the finding.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the imported goods were filter press plates for use in a filter press waste water and filtration system. Filter presses are considered manufactured equipment components that are primarily mechanical rather than structural. Filter plates are mechanical components/parts of filter press machines and are not subject to the SIMA measure in force.

Refund: Over $25,000

Appeal No: FISC-2

Decision Date: 2018-07-25

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duties on two importations of friction flare rock anchors and hemispherical seats. The importer presented documentation and a sample claiming that these goods were made of pearlitic malleable iron (cast iron) and therefore would not fall within the product description of the finding.

Decision: Allowed

Reason:

The documentation and sample submitted demonstrated that the imported goods were made of pearlitic malleable iron (cast iron). As the goods are not made of steel, they do not fall within the product description of the finding.

Refund: Over $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

Appeal No: F-8

Decision Date: 2018-01-03

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 hex cap screws, which are excluded from the finding.

Decision: Denied

Reason:

The documentation submitted demonstrated that the imported screws did not have the characteristics of the excluded hex cap screws but rather had the features and characteristics consistent with those of a flange screw. Flange screws, within the dimensions of the ones in issue, are subject to the finding.

Refund: N/A

Appeal No: F-9

Decision Date: 2018-03-22

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duties on importations of screws originating in the People’s Republic of China and exported from the United States. The importer presented documentation along with samples claiming the two models of screws were brass and stainless steel respectively and therefore not subject to the finding.

Decision: Allowed

Reason:

The documentation and samples submitted demonstrated that the imported screws were brass and stainless steel respectively. Brass and stainless steel screws are not subject to the SIMA measure in force.

Refund: $5,000 to $25,000

Appeal No: F-10

Decision Date: 2018-08-17

Grounds of appeal:

Anti-dumping and countervailing duties were paid on carbon steel screws exported from the United States. Upon appeal, the importer presented documentation claiming that the screws were manufactured in the United States.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the imported screws were manufactured in and exported from the United States, a country not included in the finding.

Refund: Less than $5,000

Appeal No: F-11

Decision Date: 2018-09-06

Grounds of appeal:

Anti-dumping duties were paid on certain screws exported from the United States. Upon appeal, the importer presented documentation claiming that the screws were made of stainless steel, not carbon steel.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the imported screws were made of stainless steel. Stainless steel screws are excluded from the finding.

Refund: $5,000 to $25,000

Flat hot-rolled carbon and alloy steel sheet and strips

Appeal No: HRSS-1

Decision Date: 2018-11-23

Grounds of appeal:

The CBSA assessed anti-dumping duty on an importation of hot-rolled alloy steel sheet originating in China and exported from the United States. The importer presented documentation indicating that the goods fell outside the thickness requirement for cut to length sheet and should not be subject to the finding.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the thickness of the goods ranged from 0.5 to 1.5 inches. As the goods exceed the thickness requirement of cut to length steel sheet, the goods are not subject to the finding.

Refund: Over $25,000

Gypsum Board

Appeal No: GB-01

Decision Date: 2018-09-06

Grounds of appeal:

The CBSA assessed anti-dumping on thirteen importations of gypsum board originating in the United States. The importer presented documentation indicating that the goods were for use and consumption in Ontario and Quebec and would therefore fall outside the scope of the finding.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the goods were imported into Canada through Ontario and are for use and consumption in Ontario and Quebec. As the goods are not for use or consumption in the western provinces or the territories, the goods are not subject to the finding.

Refund: Over $25,000

Carbon and Alloy Steel Line Pipe 2

Appeal No: LP2-1

Decision Date: 2018-09-10

Grounds of appeal:

The CBSA assessed anti-dumping duty on an importation of certain carbon and alloy steel pipe originating and exported from the Republic of Korea. Upon appeal, the importer contended that the goods were meter tube (meter run) and therefore not subject to the finding.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the imported goods were meter tube (meter run). Meter tube is a specialized tube that forms an integral component of measurement equipment used as a part of a meter station to measure the volume of oil/gas flowing through a pipeline while line pipe is sold for oil and gas transmission or processing piping purposes. In addition, meter tube can only be made by using the cold-drawn method and has strict and additional requirements which are unique only to meter tube and are not required for line pipe. As such, the goods are not subject to the SIMA measure in force.

Refund: Over $25,000

Appeal No: LP2-2

Decision Date: 2019-02-14

Grounds of appeal:

The CBSA assessed anti-dumping duty on importations of certain carbon and alloy steel line pipe originating in the Republic of Korea. Upon appeal, the importer contended that the goods were piping spools and therefore not subject to the finding.

Decision: Allowed

Reason:

The documentation submitted demonstrated that the imported goods were piping spools. The piping spools are comprised of miscellaneous piping lengths and components joined together via beveling, fitting, welding, grinding and induction bending where straight lengths of pipe are transformed into curved components that have off-sets of varying degrees built to an engineering specification. As such, the goods are not subject to the SIMA measure in force.

Refund: Over $25,000

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

Photovoltaic Modules and Laminates

Appeal No: SML-1

Decision Date: 2017-07-21

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duty on an importation of solar panels originating in China. The importer argued that the goods are excluded from the finding by virtue of the power output being 100 W.

Decision: Allowed

Reason:

A review of the documentation submitted demonstrates that the imported goods have a power output of 100 W. Solar panels with a power output not exceeding 100 W are excluded from the finding. As such, the goods are not covered by the definition of the subject goods.

Refund: $5,000 to $25,000

Stainless Steel Sinks

Appeal No: SSS-1

Decision Date: 2018-07-05

Grounds of appeal:

The CBSA assessed anti-dumping and countervailing duties on an importation of stainless steel sinks based on accounting information stating the country of origin and export was the People’s Republic of China. The importer presented documentation showing the origin and export of the goods was Thailand and therefore claiming the goods were not subject to the finding.

Decision: Allowed

Reason:

A review of the documentation submitted demonstrates that the imported goods were manufactured in, and shipped to Canada from Thailand. Stainless steel sinks originating in Thailand are not subject to the SIMA measure in force.

Refund: Over $25,000

Appeal No: SSS-2

Decision Date: 2018-11-09

Grounds of appeal:

Anti-dumping and countervailing duties were paid on an importation of stainless steel sinks. The CBSA reviewed the importation and assessed additional anti-dumping and countervailing duties. The importer contends the volume of the goods was below those specified and were therefore not subject to the finding.

Decision: Allowed

Reason:

A review of the documentation submitted demonstrates that the imported goods have a single drawn bowl with a volume of 666 cubic inches. Stainless steel sinks having a single bowl with a volume of less than 1,600 cubic inches are not subject to the SIMA measure in force.