Is it better to seek permission or ask for forgiveness
after the fact?
When it comes to imports of goods into Canada that may be
subject to anti-dumping duties, it is better to seek an advance
ruling from the Canada Border Services Agency
(“CBSA”). If you import goods and the CBSA
believes that the goods are within the product description of an
anti-dumping order, the CBSA may issue a detailed adjustment
statement (“DAS”) (an assessment). If the CBSA
issues a DAS, the importer must pay the full amount of the DAS in
order to perfect a request for re-determination (an appeal).
If the amount of the DAS has not been paid in full at the 90 day
limitation period for the appeal, the CBSA will not accept the
request for re-determination. We have seen requests for
re-determination (in the form of adjustment requests) returned to
the importer or their advisor.
In many cases, the rate of anti-dumping duty applicable to
imports under the all others rate is over 100%. We have met
many importers who did not mark up the price of the imports in an
amount that exceeded the anti-dumping duty rate. They just
cannot afford the assessed amount in the DAS.
Sometimes, the CBSA does not issue the DAS for two years and
they issue two years worth of DASes. If the importer has
imported a lot of the goods at issue, the amount of anti-dumping
duties payable, plus additional goods and services tax plus
interest calculated from the date of the importations amounts to
Also, there is no guarantee that if the importer appeals the DAS
(after a failed request for re-determination) to the Canadian
International Trade Tribunal (“CITT”) that the CITT
will accept arguments that the goods are not within the scope of an
To avoid an unexpected and significant financial liability, it
is best to ask the CBSA for an advance ruling on whether particular
goods are subject to an anti-dumping order. The question may
be whether specific goods fit within a product description (that
is, is it a subject good). For example, is an aluminum
baluster in retail packaging within the CITT’s anti-dumping
order against aluminum extrusions from China. There has been
a case on this one and the CITT determined that finished aluminum
balusters in retail packaging where aluminum extrusions within the
product definition in the Aluminum Extrusions anti-dumping and
countervailing duty order.
The question may also relate to whether a particular good
originates in a subject country. For example, are certain
screws that are further manufactured in the United States subject
to the anti-dumping and countervailing duty order against carbon
steel fasteners from China and Taiwan. There has been a case on
this one and the CITT determined that the term
“originates” is not defined in the Special Import
Measures Act and has a very broad meaning. The CITT held
in Ideal Roofing Company Limited and Havelock Metal Products
“In the absence of a statutory regime for determining
origin in the context of SIMA, the Tribunal finds that the
CBSA’s submission to rely on the dictionary definition of the
term “originating” is most appropriate for the case at
hand and most consistent with the past practice of the Tribunal in
the context of SIMA. Specifically, the Tribunal will rely on
the Canadian Oxford Dictionary which defines the term
“origin” as “. . . a beginning, cause, or
ultimate source of something . . . that from which a thing is
derived, a source or a starting point . . .” and
“originate” as “. . . begin, arise, be derived,
takes its origin . . . .”
The CBSA will consider advance ruling requests and issue biding
rulings. The importer has the opportunity to provide the
relevant facts for consideration by the CBSA and include product
samples. While it may take a while to get an answer from the
CBSA, the importer has better control over their financial
liability by working with the CBSA where they may be questions
raised. It is better for importers to acknowledge the risk of
a potential future disagreement than avoiding the question and
hoping for the best.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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While that agreement mandated export measures on Canadian softwood lumber exports destined for the United States, it also protected those lumber exports from the potential imposition of onerous import measures by the U.S.
On September 29, 2016, the Supreme Court of Canada issued its first tariff classification decision since Canada signed the International Convention on the Harmonized Commodity Description and Coding System in 1998.
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