OPINION
In this аction, Plaintiff Shah Bros, challenges the Defendant’s classification of its imported merchandise, and the resulting tariff duties and excise taxes imposed. Plaintiff seeks reclassification of its goods, a return of said duties and taxes, with interest thereon, and further declaratory relief. In response to Plaintiffs Complaint, the Defendant confessed judgment to Plaintiffs classification claim, agreeing to refund, with interest, the contested duties and excise taxes. See USCIT R. 54(b). The court then dismissed, subject to a right to amend, Plaintiffs claim for further declaratory relief.
Plaintiff has now filed an amended complaint, alleging a continuing dispute, based on the Alcohol and Tobacco Tax and Tradе Bureau’s (“TTB”) classification of Plaintiffs merchandise, prior to the Defendant’s confession of judgment, and U.S. Customs and Border Protection’s (“Customs”) implementation thereof. In further response, the Defendant now moves to dismiss Plaintiffs amended complaint for lack of subject jurisdiction, claiming that its confession of judgment has rendered Plaintiffs complaint moot.
As explained below, the court concludes that the responsibility for the administration and enforcement of the duties and taxes at issue lies with Customs — not TTB. Therefore, it is Customs’ decisions that are at issue. As Plaintiff has not established that the statutory protest procedure, and the special provisions for judicial review thereof, provide an inadequate remedy for these Customs’ decisions, the court dismisses Plaintiffs Amended Complaint.
I. Background
Five entries
1
of Plaintiffs merchandise (imported through the port of Memphis) are at issue.
2
Specifically, in 2007, Plaintiff began importing “gutkha”, a tobacco product that “include[s] crushed betel nuts, aromatic spices
(viz.,
lime, saffron and cardamom), menthol and/or catechu additives (optional) and crushed tobacco leaf.” (Pl.’s First Am. Compl. (“Am.
As a “smokeless tobacco,” Gutkha is subject both to import tariffs in accordance with the Harmonized Tariff Schedule of the United States (“HTSUS”) and to federal Internal Revenue excise taxes in accordance with 26 U.S.C. § 5701(e)(2006). Title 26 defines “smokeless tobacco” as “any snuff or chewing tobacco.” 26 U.S.C. § 5702(m)(l). 3 Although the tariff rate for either snuff or chewing tobacco is the same, the excise tax for snuff is higher thаn that for chewing tobacco. Customs is responsible for collecting both the tariffs and the excise taxes. See 6 U.S.C. § 215(1); 27 C.F.R. § 41.62; Treas. Order 100-16 (May 15, 2003).
Upon entry, Shah Bros, classified the subject gutkha as “chewing tobacco” under HTSUS Subheading 2403.99.2030.
4
(Am. Comply 32.) According to the amended complaint, in November 2007, a TTB investigator collected samples of the gutkha from Shah Bros.’ premises. The investigator then submitted these samples to the TTB Regulations and Rulings division (“RRD”).
(Id.
¶ 33.) In January 2008, Customs, in a CF 29 Notice of Action, changed the gutkha tariff classification to HTSUS 2403.99.3070 “tobacco ... other.”
5
(Id.
¶ 34.) It appears that this classification ultimately resulted from a typographical error, as Customs in fact liquidated the merchandise as “snuff,”
6
under HTSUS 2403. 99.2040.
(Id.
¶ 34.)
7
Subsequеntly, as a result of the reclassification and liquidation, Customs issued a bill to Shah Bros, for $4,706.30.
(Id.
¶ 35) Shah Bros, protested this classification and assessment in Protest Nos.2006-08-100509
8
and 2006-
Concurrent with Shah Bros.’ dispute with Customs, in February 2008, Shah Bros, also requested a ruling from RRD on the tax classification of the subject merchandise. (Id. ¶ 36.) RRD issued Priv. Ltr. Rul. 5200:2008R-122P, 10 which classified Shah Bros.’ gutkha as “snuff.” (Id.) According to RRD, “upon visual inspection,” the gutkha contained “no discernible leaf tobacco.” (Id.) In its January/February reclassification mentioned above, Customs relied upon this RRD ruling. (Id. ¶ 41.)
Plaintiff then moved for reconsideration, requesting that TTB perform the Alcohol Tobacco and Firearms (“ATF”) Procedure 87-4 (“ATF Proc. 87-4”) sieve test 11 “in order to ascertain an objective result” because (1) “certain products like gutkha can be difficult to classify” and (2) “gutkha is universally marketed and consumed as chewing tobacco” (Id. ¶ 37.) TTB denied Shah Bros.’ petition on the ground that “no ‘fibrous’ leaf material was visible.” (Id. ¶ 42.) According to the Plaintiff, TTB did not, either in its rulings or in other communications, provide Plaintiff the results of any sieve test on the subject gutkha, if such test was even performed at all. (Id. ¶¶ 38, 42.) 12
In addition, other of Plaintiffs gutkha entries, entered at the same time as those at issue here, are currently subject to seizure and judicial forfeiture, as well as a (recently dissolved) criminal investigation by U.S. Immigration and Customs Enforcement.
13
,
14
(Am.Compl.1ffl 46-47.)
Having paid all duties and taxes, Shah Bros, filed its Summons and initial Complaint on April 29, 2009. As noted above, the Defendant moved to confess judgment as to the entries at issue, ie., to reclassify the goods under HTSUS Subheading 2403.99.2030 as “chewing tobacco” and to reliquidate the entries accordingly, refunding the excess Internal Revenue tax paid, together with interest. Plaintiff objected to this motion. Ultimately, the court grаnted the Defendant’s motion and partial judgment was issued for Shah Bros.
Remaining before the court is Plaintiff’s First Amended Complaint with the court, asserting jurisdiction under 28 U.S.C. § 1581(a), (i)(l) and (i)(4) (2006). The amended complaint makes two allegations. First, Shah Bros, challenges TTB’s “erroneous administration and enforcement of the relevant statutes, regulations and test procedures in determining the classification of imported gutkha for tax assessment and revenue collection purposes.” (Am. Comply 5.) In this charge, Plaintiff claims that “TTB and [Customs] have treated gutkha inconsistently in the past,” (id. ¶ 50,) and have acted arbitrarily and contrary to law in imposing “discernable leaf tobacco” and “fibrous leaf material” requirements. (Id. ¶¶ 51, 54.) Again according to the complaint, as a result of TTB’s actions, Shah Bros, “has [been] adversely affected ... because [TTB’s] decision has resulted in the imposition of a higher excise tax, a seizure and a criminal investigation.” (Id. ¶ 53.)
Second, Shah Bros, alleges that Customs “improperly performed its ... role[ 15 ] with respect to the determination of the tax status of gutkha and the exaction of additional tax because it erroneously relied on TTB’s arbitrary classification of gutkha as ‘snuff.’ ” (Id. ¶ 55.) Plaintiff also references a more recent summons and complaint that address Customs’ classification of other “identical” entries. (Pl.’s Br. 12; Notice of Errata to Pl.’s Opp’n to Dеf.’s Mot. to Dismiss 1-2 (informing the court that it has filed a summons and complaint for Court. No. 10-00205 which covers Protest No. 1601-10-100051).) Shah Bros, seeks declaratory and equitable relief.
The Defendant asserts, that because of its confession of judgment, Plaintiff has received complete relief in the form of reclassification of the gutkha imports at issue. As a consequence, the Defendant argues, Shah Bros, cannot assert any claim under either section 1581(a) or section 1581(i). Further, because the Defendant confessed judgment as to Plaintiffs classification claim, the Defendant argues that no case or controversy exists, and therefore this matter is not justiciable under Article III of the Cоnstitution.
II. Analysis
Whether jurisdiction exists is a question of law.
Sky Techs., LLC v. SAP AG,
576
F.3d
1374, 1378 (Fed.Cir.2009). Because the Defendant has moved to dismiss Plaintiffs action for lack of jurisdiction, the court accepts as true all factual allegations Court No. 09-00180 Page 10 asserted in Shah Bros.’ Amended Complaint.
Warth v. Seldin,
Proper categorization of Plaintiffs claims within the framework of this Court’s statutory jurisdiction provides context, and is thus “logically antecedent,” to discussion of Article III justiciability.
Cf. Ortiz v. Fibreboard Corp.,
A. Direct Review of TTB’s Actions is Precluded in this Court
As explained below, the court does not have jurisdiction over Plaintiffs direct challenge seeking declaratory relief from TTB’s actions.
i. Direct Review of TTB’s Alleged Decision Pursuant to Section 1581(a) is Unavailable
Section 1581(a) applies only to protests of Customs’ decisions. See 28 U.S.C. § 1581(a) (“The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under [19 U.S.C. § 1515].”); 19 U.S.C. § 1515(a) (noting the protesting party may file a сivil action contesting the denial of protests under 19 U.S.C. § 1514); id. § 1514 (providing for protests of “decisions of the Customs Service”). As such, TTB’s alleged decision is not directly reviewable under this subsection. 17
In addition to 1581(a), in seeking review of TTB’s actions, Plaintiff attempts to invoke the court’s “residual” jurisdiction under 28 U.S.C. § 1581(i)(4). 1581® provides:
In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for—
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;
(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or
(4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section.
Id. Plaintiff asserts that its action challenging TTB’s classification of Plaintiffs merchandise “arises out of’ a law that provides for TTB’s “administration and enforcement” of a law that involves “revenue from imports,” i.e., 26 U.S.C. §§ 5701, 5702. 18
The Defendant states that the court cannot review actions taken by TTB, because “regardless of TTB’s ruling policy, CBP is the entity ultimately responsible for classifying merchandise and assessing excise tax, although [CBP] may consider TTB’s rulings in those determinations.” (Def.’s Mot. to Dismiss 7.) As such, “CBP’s reliance upon TTB’s rulings would naturally be a part of the inquiry in a typical protest case arising under section 1581(a), and therefore unreviewable under section 1581®.” (Id. 7-8.) 19
Plaintiff responds that, because the excise taxes at issue “are internal revenue [ ] taxes[,] TTB is the agency charged with administering the statute” and “shares responsibility with Customs for assessing and collecting the higher tax ratе on gutkha.” (Pl’s Br. 9) (citing
Ammex, Inc. v. United States,
As a matter of law, however, the court cannot agree with Plaintiffs characterization of the current relationship between Customs and TTB in the administration of the excise tax on tobacco imports. Rather, it is Customs, not TTB, that both “administers” and “enforces” the excise taxes imposed on tobacco imports. This is because authority as to assessment of excise taxes, and the classification associated with this assessment, lies with Customs and no longer with the Treasury Department.
Consistent with the transfer of the functions, personnel, assets, and liabilities of the United States Customs Service to the Department of Homeland Seeurity[ 21 ] as set forth in [6 U.S.C. § 203(1) ], there is hereby delegаted to the Secretary of Homeland Security the authority related to the Customs revenue functions vested in the Secretary of the Treasury as set forth in [6 U.S.C. §§ 212,215]....
Treas. Dep’t Order No. 100-16 ¶ 1, 68 Fed.Reg. 28,322 (May 23, 2003 (emphasis added)). This delegation is not limited in any way that is relevant here. 22 Section 212 does provide that, notwithstanding the broad statutory delegation of Treasury Department authority to the Department of Homeland Security provided in section 203:
authority related to Customs revenue functions that was vested in the Secretary of the Treasury by law before the effective date of this chapter under those provisions of law set forth in paragraph (2)[ 23 ] shall not be transferred to the Secretary [of Homeland Security] by reason of this chapter....
6 U.S.C. § 212(a)(1). However, important to the case at hand, “on and after the effective date of this chapter, the Secretary of the Treasury may delegate any such authority to the Secretary [of Homeland Security] at the discretion of the Secretary of the Treasury.” Id. As previously mentioned, the Treasury Department delegated authority to Customs as to “Customs revenue functions.” Section 215 defines “Customs revenue functions” as, among other things, “[ajssessing and collecting customs duties[,] ... excise taxes, fees, and penalties due on imported merchandise, including classifying and valuing merchandise for purposes of such assessment.” Id. § 215(1) (emphasis added). Thus, as a Bureau under the Treasury Dеpartment, TTB no longer has authority as to these Customs revenue functions involving imported goods. Rather, that authority lies directly with Customs.
Plaintiff provides no support for its position that TTB “is charged with administering” the excise tax and has not pointed to a single “law” that provides for TTB’s administration of the excise tax as to imports. Nor could it. As part of the Treasury Department, TTB originally was granted authority to administer 26 U.S.C. §§ 5701 and 5702.
See
6 U.S.C.
Plaintiff also attempts to argue that TTB administers the tax because it “assesses” the tax. In support, Plaintiff references
Ammex
as “noting that the [Internal Revenue Service (TRS’)] assesses import taxes on fuels.” (Pl.’s Br. 9 (emphasis omitted);)
Ammex,
Plaintiff also asserts jurisdiction pursuant to 1581(i)(l), claiming that its ongoing dispute with Customs and TTB arises out of a law providing for revenue from imports, i.e., the imposition of excise taxes on Shah Bros.’ goods. Further, Plaintiff complains that it must continually contest each classification made by Customs for each of its entries, and must expend monetary and other resources
The fact that there may be some delay associated with the protest scheme does not justify application of subsection 1581®.
Int’l Custom Products, Inc. v. United States,
Moreover, as issue preclusion does not apply to customs classification cases, and each entry or set of entries contained in a summons is treated
de novo
in the ensuing litigation before the court as to those entries, any declaration by the court would have limited effect as to future entries.
See United States v. Stone & Downer Co.,
Plaintiff also alleges that the court has jurisdiction to review what Plaintiff characterizes as TTB’s “final agency action” Priv. Ltr. Rui. 5200:2008R-122P “because Plaintiff otherwise would be deprived of a remedy for the unlawful actions against it,” (Am.Compl.1ffl 8, 56,) and “because it has been adversely affected and suffered economic injury as a direct result of the actions of TTB and [Customs] within the meaning of the Administrative Prоcedures Act, 5 U.S.C. § 702.” CId. ¶ 11.)
The court disagrees. The Plaintiff can use neither 1581(i), nor the APA, to circumvent the appropriate statutory channels for bringing its claim.
See e.g., Bowen v. Mass.,
Plaintiff notes, correctly, that this Court does not have jurisdiction over seizures and forfeitures themselves, even when performed by Customs. 28 U.S.C. §§ 1356 (“The district courts shall have original jurisdiction, exclusive of the courts of the States, of any seizure under any law of the United States on land or upon waters not within admiralty and maritime jurisdiction, except matters within the jurisdiction of the Court of International Trade under [28 U.S.C. § 1582
30
]”), 1355 (“The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under [28 U.S.C. § 1582]”).
See also Hansen v. United States,
However, any actual Customs “decision” underlying such seizure, forfeiture, or criminal prosecution is protestable.
31
The special statutory procedures for protest and review specifically contemplate this relationship. Under 19 U.S.C. § 1499, Customs may detain, seize and forfeit merchandise. See 19 U.S.C. § 1499(c)(1),(4). However, if Customs fails “to make a final determination with respect to the admissibility of detained merchandise within 30 days after the merchandise has been presented for customs examination, or such longer period if specifically authorized by law, [it] shall be treated as a decision of the Customs Service to exclude the merchandise for purposes of sections 1514(a)(4) of this title [and thus subject to protest and judicial review].” See 19 U.S.C. § 1499(c)(5)(A). Moreover, as may be relevant to the dispute between the parties here, notice of testing procedures and results are specifically required. See 19 U.S.C. § 1499(c)(3)(A).
Consequently, when considered in light of the full array of remedies available under 28 U.S.C. § 1581(a), the court cannot find the protest review procedures inadequate here.
III. Conclusion
For the foregoing reasons, the court hereby ORDERS that Defendant’s motion to dismiss for lack of jurisdiction is GRANTED.
Judgment will be entered accordingly.
Notes
. The five entries listed in the Summons, are: D52-8900504-8, D52-8900489-2, D520899860-4, D52-0899773-9, and D520899179-9. (Def.’s Mot. for Entry of Cоnfession of J. in Pl.’s Favor 1; Pl.’s Summons 1, 3.)
. Plaintiff imports and sells “authentic, traditional foodstuffs and related products from India.”
. Title 26 also defines "chewing tobacco” as "any leaf tobacco that is not intended to be smoked.” 26 U.S.C. § 5702(m)(3).
. Classification as "chewing tobacco” under HTSUS Subheading 2403.99.2030 results in a tariff rate of $0,247 per kilogram in addition to an Internal Revenue tax of $0,195 per pound. See HTSUS 2403.99.20; 26 U.S.C. § 5701(e)(2).
According to the Defendant, Shah Bros, classified its gutkha as "spice mixtures” as per HTSUS 0910.91.00. (Def.’s Mot. to Dismiss 2.) As the court has not received any documentation or rulings from the Defendant as to this matter, and as the Defendant has not placed in dispute the content thereof, the court assumes Plaintiff’s non-jurisdictional allеgation to be true for the purposes of this motion.
. The Defendant asserts that Customs originally classified the gutkha as “chewing tobacco.” (Def.'s Mot. to Dismiss 2.) However, again, as the court has been unable to obtain any documentation or rulings from the Defendant as to this matter, the court assumes Plaintiff's non-jurisdictional allegation to be true for the purposes of this motion.
. Classification as "snuff” under HTSUS Subheading 2403.99.2040 results in an identical tariff rate to chewing tobacco; however, the Internal Revenue tax rises to $0,585 per pound. See HTSUS 2403.99.20; 26 U.S.C. § 5701(e)(1). Title 26 defines "snuff” as "any finely cut, ground, or powdered tobacco that is not intended to be smoked.” 26 U.S.C. § 5702(m)(2).
. Fifteen days later, Customs corrected its error and reсlassified the merchandise under HTSUS 2403.99.2040, although the corrected CF 29 was not issued until July 9. (Am. Compl.¶¶ 35, 39.)
. Protest No. 2006-08-100509 covered entry D52-8900504-8. (See PL’s Summons 1.)
. Protest No. 2006-08-100516 covered entries D52-8900489-2, D52-0899860-4, D520899773-9, and D52-0899179-9. (See Pl.'s Summons 3.)
. Neither party has presented the court with a copy of this document, nor has the court been able to obtain this document from TTB. Thus, for the purposes of this motion, the court will rely upon Plaintiff's Amended Complaint as to the contents of this ruling.
. ATF Proc. 87 — 4 serves to "advise of the testing method used by [ATF] in determining whether smokeless tobacco products are chewing tobacco or snuff under 26 U.S.C. Secs. 5701 and 5702." ATF Proc. 87-4 Sec. 1. Because "the statutory definitions do not provide a clear delineation between what is a leaf tobacco (chewing tobacco) and what is.a finely cut tobacco (snuff),” ATF instituted a sieve test to provide “object information” in order to distinguish between the two. Id. Secs. 2.02, 2.04, 2.06. However, the sieve test "is employed only when it is not readily apparent from other available information (visual appearance, method of manufacture, etc.) whether the product is chewing tobacco or is snuff.” Id. Sec. 2.06.
. In an about-face, on January 27, 2009, Customs issued interpretive ruling [¶] H043318, therein holding that “gutkha is 'chewing tobacco’ and is classified under HTS[US] 2403.99.2030.” (Id. ¶44.) Further, Customs stated that "the definitions set forth in the TTB regulations are for purposes of implementing statutes other than the Customs laws and are not definitive as to the classification of the merchandise.” (Id. (quotation marks omitted).) But Customs revoked the ruling approximately sixty days later. (Id. ¶45.) Informal communications with Customs, according to Plaintiff, indicated that the ruling was revoked due to the Shah Bros, dispute with TTB. (Id.)
. Plaintiff claims only that the seizure and investigation are both results of the erroneous classification of gutkha as snuff. See Am. Compl. ¶¶ 46, 47. The court has no details before it concerning the precise nature of the seizure and the criminal investigation; however, this information is not necessary for the court's determination, except that the court will assume as true Plaintiff's allegation that Customs relied upon the TTB classification of the imported goods when seizing those goоds and investigating Plaintiff.
. Defendant has recently informed the court that the criminal investigation has been dissolved. (Def.'s Resp. to Cts.’ Questions at 3.)
. Plaintiff originally referred to Customs’ role here as '‘ministerial.” (Id. ¶ 55.) However, in its opposition brief to Defendant's motion, Plaintiff states that “[t]o the extent Defendant is troubled by the use of the word 'ministerial’ in the First Amended Complaint, with leave of the Court, Shah Bros, is amenable to deleting this word.” (Pl.’s Br. 9 n. 3.)
. As a consequence, "[i]f a motion to dismiss for lack of subject matter jurisdiction[ ] ... challenges the truth of the jurisdictional facts alleged in the complaint, the [] court may consider relevant evidence in order to resolve the factual dispute.”
Reynolds
v.
Army & Air Force Exchange Service,
. The court notes that Plaintiff’s challenges to Customs’ actions regarding the protests before the court were appropriately brought under 28 U.S.C. § 1581(a), a valid protest having been filed pursuant to 19 U.S.C. § 1514. As we explain below, because Customs was not bound to follow TTB and, indeed, TTB has no statutory or regulatory authority over imports of tobacco products,
see supra,
Plaintilf was challenging Customs’ decision to classify the gutkha consistent with TTB’s analysis and recommendations. Thus, Plaintiff contested “decisions” by Customs, namely, Customs’ classification of, and the subsequent tax rate assigned to, the subject merchandise.
See Norsk Hydro Can., Inc. v. United States,
The court also notes that Customs' process in classifying merchandise is challenged in a protest, and reviewed here under subsection 1581(a).
See Autoalliance Int’l, Inc. v. United States,
.Although “district courts have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports and tonnage,” such jurisdiction "except[s] matters within the jurisdiction of the Court of International Trade”, 28 U.S.C. § 1340, as will be discussed below.
. The court reads the Defendant’s statements as arguing that TTB’s decision does not qualify as "administration or enforcement.”
. Plaintiff also insists that its reading of TTB’s involvement in assessment of the instant excise taxes "does not run afoul of the Homeland Security Act, 6 U.S.C. [§ 215].” (Pl.'s Br. 9).
. CBP — formerly the U.S. Customs service, a part of the Treasury Department — is now organized as a component of the Department of Homeland Security pursuant to the Homeland Security Act of 2002, Pub.L. No. 107-296, § 403(1), 2002 U.S.C.C.A.N. (116 Stat.) 2137, 2178, and the Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. No. 108-32, p. 4 (Feb. 4, 2003).
. Moreover:
To the extent this Delegation of Authority requires any revocation of any [ ] prior Order or Directive of the Secretary of the Treasury, such prior Order or Directive is hereby revoked.
Id. ¶ 4.
The delegation is subject to certain exceptions that are not relevant here. Treas. Dep't Order No. 100-16 ¶ 1(a)(i) — (ii), 68 Fed. Reg. 28,322 (May 23, 2003). Express exceptions listed in the Order imply that the delegation to Customs, of the "authority related to the Customs revenue functions vested in the Secretary of the Treasury,” is otherwise comprehensive.
See Andrus v. Glover Constr. Co.,
.Provisions referred to in paragraph (2) include "any [] provision of law vesting customs revenue functions in the Secretary of the Treasury.” 6 U.S.C. § 212(a)(2).
. For the same reasons, Plaintiff's statement — that its reading of the relationship between Customs and TTB in administering the excise tax at issue "does not run afoul of Homeland Security Act” (PL’s Br. 9) — is unpersuasive. Perhaps Plaintiff’s reading would be consistent with the original, unaltered language of the Act, but, again, pursuant to and in the context of the same Act, authority over assessment and collection of the excise tax on imported tobacco has been delegated to Customs.
.
See Shinyei Corp. of America v. United States,
.
Compare United States v. United States Shoe Corp.,
. Plaintiff also points to the language of the Protest decision noting that Customs, in denying Plaintiff’s protest, gave the explanation that the "classification [was] based on [the] ruling issued by the TTB,” the "governing” entity involved. (Ex. B to PL's Br. at 1.) However, given the plain language of the statute and Treasury regulation, the appropriate issue is whether Customs properly followed a TTB decision in light of the delegation. (Accord Def.'s Reply in Supp. of Its Mot. to Dismiss (“Def.’s Reply”) 7.) The reviewable action is Customs', not TTB’s.
. Though
stare decisis
does apply in classification actions,
see Avenues in Leather, Inc. v. United States,
. Plaintiff also rаises the specter of Customs' evasion of review of its own improper administration and enforcement of its classification and testing procedures by a repeated confession of judgment in Court. No. 10-00205. It is sufficient to note that this scenario is not presently before the court.
. 28 U.S.C. § 1582 involves certain actions commenced by the United States to recover civil penalties, bond, or customs duties. As such, section 1582 is not applicable here.
. Said protest "shall be filed with [Customs] within 180 days after but not before ... (A) date of liquidation or reliquidation, or ... (B) in circumstances where subparagraph (A) is
Case law indicates that review of some classifications may only be had following the denial of a protest
and
liquidation and payment of duties.
See United States v. Boe,