Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Creswell Trading Co. v. Allegheny Foundry Co.

April 16, 1998

CRESWELL TRADING CO., INC., D & L SUPPLY CO., SOUTHERN STAR, INC., CITY PIPE & FOUNDRY, INC., SOUTH BAY FOUNDRY 1989, CAPITOL FOUNDRY OF VIRGINIA, INC., VIRGINIA PRECAST CORP. AND TECHSALES, INC., PLAINTIFFS-APPELLEES, AND CRESCENT FOUNDRY CO. PVT. LTD., RSI (INDIA) PVT. LTD., SELECT STEELS, LTD., KEJRIWAL IRON & STEEL WORKS, R.B. AGARWALLA & COMPANY, SERAMPORE INDUSTRIES PVT. LTD., SUPER CASTINGS (INDIA), CARNATION ENTERPRISES PVT. LTD., UMA IRON & STEEL CO., GOVIND STEEL CO., LTD. AND COMMEX CORPORATION, PLAINTIFFS-APPELLEES,
v.
ALLEGHENY FOUNDRY CO., CAMPBELL FOUNDRY CO., DEETER FOUNDRY, INC., EAST JORDAN IRON WORKS, INC., LEBARON FOUNDRY INC., MUNICIPAL CASTINGS, INC., NEENAH FOUNDRY CO., PINKERTON FOUNDRY INC., U.S. FOUNDRY & MANUFACTURING CO., VULCAN FOUNDRY, INC., ALHAMBRA FOUNDRY, INC., DEFENDANTS-APPELLANTS, AND UNITED STATES, DEFENDANT-APPELLANT.



Before Rich, Lourie, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Lourie, Circuit Judge.

Appealed from: United States Court of International Trade. Senior Judge DiCarlo.

Before Rich, Lourie, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Lourie, Circuit Judge.

 Allegheny Foundry, Co. et al. (the "Domestic Industry") and the United States appeal from the decision of the Court of International Trade in favor of Creswell Trading Co. et al. (the "Importers") affirming Commerce's determination that certain oceanic shipping costs and inland shipping costs did not constitute countervailable subsidies under "Item (d)" of the Illustrative List of Export Subsidies, annexed to the Agreement on Interpretation and Application of Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade ("GATT Agreement"). *fn1 Creswell Trading Co. v. United States, 964 F. Supp. 409 (Ct. Int'l Trade 1997). Because the court erred in its decision concerning the oceanic shipping costs but not as to the inland shipping costs, we affirm-in-part and reverse-in-part.

 BACKGROUND

In 1985, India's castings manufacturers needed pig iron to manufacture items for export. Because India's domestic pig iron manufacturers were selling pig iron at higher prices than manufacturers on the world market, the Indian government provided rebates to its castings manufacturers pursuant to its International Price Reimbursement Scheme (the IPRS program). These rebates were intended to enable Indian castings manufacturers to buy the more expensive domestically produced pig iron while still competing effectively in the world market. See generally Creswell Trading Co. v. United States, 15 F.3d 1054 (Fed. Cir. 1994) ("Creswell I") (discussing the IPRS program in further detail).

The Indian government calculated the IPRS rebates as being equal to the domestic price of pig iron minus the world market price of pig iron. The Indian government's world market price did not include the cost of shipping pig iron procured on world markets to the port at Calcutta, India, nor did it include the inland shipping cost necessary to bring the pig iron from Calcutta to the plants of the Indian castings manufacturers. The world market price did however include the cost of shipping the pig iron by rail from the pig iron exporter's plant to its local port. Thus, the world market price used by the Indian government in the computation of rebates was a Free-On-Board (FOB) price, the price one would pay for the pig iron at the exporter's local port. The Indian government's domestic price included the cost of shipping pig iron from the plants of domestic pig iron manufacturers to Calcutta, but did not include the cost of delivery from Calcutta to the plants of the castings manufacturers. Thus, the domestic price used by the Indian government was FOB at Calcutta.

When the Importers in 1985 introduced castings manufactured under the IPRS program into the U.S. market, the Domestic Industry asserted that the rebates constituted countervailable subsidies. Specifically, they contended that the rebates were countervailable subsidies under Item (d), which defines a subsidy as follows:

(d) The delivery by governments or their agencies of imported or domestic products or services for use in the production of exported goods, on terms or conditions more favourable than for delivery of like or directly competitive products or services for use in the production of goods for domestic consumption, if (in the case of products) such terms or conditions are more favourable than those commercially available on world markets to their exporters.

(emphasis added). The Domestic Industry reasoned that under Item (d), the rebates constituted countervailable subsidies if the Indian government provided pig iron to its castings manufacturers on terms more favorable than those "commercially available on the world markets." They argued that the Indian Government's world market price was artificially low because it did not include the cost of shipping the pig iron to Calcutta. In short, they contended that a given rebate was excessive by the amount of the oceanic shipping costs, that the excessive amount allowed Indian castings manufacturers to procure pig iron on terms more favorable than those "commercially available on world markets," and therefore that this excessive amount was a countervailable subsidy under Item (d).

Commerce initially agreed that the Indian government should have included oceanic shipping costs in its world market price and therefore that these costs constituted countervailable subsidies under Item (d): "Indian exporters who purchase pig iron on the world market would necessarily also incur the cost of delivering the pig iron to India. Therefore the commercially available alternative [to the IPRS program] is the price of the pig iron itself, from sources outside of India, plus delivery charges to India." Final Results of Redetermination Pursuant to Court Remand, Creswell Trading Co. v. United States, at 4 (Dept. of Commerce Feb. 13, 1995) ("Creswell II"). Commerce rejected the Domestic Industry's alternative argument that the entire rebate was a countervailable subsidy.

The Court of International Trade disagreed with Commerce's oceanic shipping cost determination, and remanded, stating:

In comparing the Indian "pig iron package" with a foreign FOB "pig iron package," it becomes clear that the terms or conditions at which the Indian government delivered pig iron to its exporters were not more favorable by the value of ocean freight, because ocean freight was not a term or condition offered by the Indian government in its "pig iron package." Since the Indian government was offering pig iron being produced in India, there would be no need to include an ocean freight term or condition for delivery to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.