SHAH BROS., INC., 

Plaintiff,

v. 

UNITED STATES, 

Defendant.

Slip Op. 13 -

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION AND ORDER 

[granting defendant’s motion for entry of judgment in favor of 

the plaintiff and dismissing as moot plaintiff’s motion to 

compel discovery] 

Dated:

Elon A. Pollack, Bruce N. Shulman, and Juli C. 

Schwartz, Stein Shostak Shostak Pollack & O’Hara, of Los 

Angeles, CA, for the Plaintiff. 

Edward F. Kenny, Commercial Litigation Branch, Civil 

Division, U.S. Department of Justice, of New York, NY, for the 

Defendant. Also on the briefs were Stuart F. Delery, Assistant 

Attorney General, and Amy M. Rubin, Acting Assistant Director, 

International Trade Field Office. 

Pogue, Chief Judge: In this action, Plaintiff Shah 

Bros., Inc. (“Shah Bros.”) – an importer of a smokeless tobacco 

product from India called “gutkha” – challenges the 

classification of its merchandise by U.S. Customs and Border 

Protection (“Customs”) as “snuff” rather than “chewing tobacco.”

Defendant United States (“the Government”) has moved to confess 

Before: Donald C. Pogue, 

Chief Judge 

Court No. 10-00205 

December 27, 2013

157
Court No. 10-00205 Page 2 

judgment in favor of Shah Bros., reliquidate the entry at issue 

as chewing tobacco, and refund to Shah Bros. all excess duties 

and taxes paid, along with lawful interest.1

 Shah Bros. opposes 

the Government’s motion, seeking to litigate its claim for 

declaratory and injunctive relief regarding the Government’s 

decision-making process, in hopes of establishing grounds for 

future issue preclusion.2

 As explained below, because the 

Government’s agreement to provide all legally available relief 

to Shah Bros. both ends the concrete controversy between the 

parties and provides the Plaintiff with all available redress, 

Shah Bros.’ claim regarding the Government’s decision-making 

methodology is no longer justiciable. Accordingly, the 

Government’s motion for an entry of judgment in the Plaintiff’s 

favor is granted, judgment shall be so entered, and Shah Bros.’ 

outstanding motion to compel discovery3

 is dismissed as moot. 

DISCUSSION

Customs classified Plaintiff’s merchandise – as 

“snuff” – under Subheading 2403.99.2040 of the Harmonized Tariff 

1

 Def.’s Mot. for Entry of Confession of J. in Pl.’s Favor, 

ECF No. 81 (“Def.’s Mot. to Confess J.”). 

2

 Pl.’s Opp’n to Def.’s Mot. for Entry of Confession of J. in 

Pl.’s Favor, ECF No. 89 (“Pl.’s Resp. to Def.’s Mot. to Confess 

J.”).

3

 [Pl.’s] Mot. to Compel Disc., ECF No. 65. 
Court No. 10-00205 Page 3 

Schedule of the United States (“HTSUS”).4 In protesting this 

classification, Shah Bros. contends that the merchandise should 

have been classified as “chewing tobacco” under HTSUS Subheading 

2403.99.2030.5

 The Government now agrees. Def.’s Mot. to Confess 

J. at 2. Accordingly, no live case or controversy remains 

regarding the classification, duties, or taxes owed for the 

merchandise in question.6

 Because this Court decides legal 

questions only in the context of actual cases or controversies,7

the Government’s agreement to reliquidate the subject entry as 

4

 See Am. Compl. ¶ 57.

5

 Id. at ¶ 92(a). Classification as “chewing tobacco” rather 

than “snuff” does not alter the applicable tariff rate but does 

lower the applicable excise tax. See HTSUS 2403.99.20; 26 U.S.C. 

§ 5701(e)(1)-(2). The gutkha imported by Shah Bros. “is a

grayish/beige substance consisting of dry rough chunks of betel 

nut pieces and bits of tobacco leaf, coated with a powdered 

blend of the spices.” Am. Compl. ¶ 36. “Snuff” is defined as 

“any finely cut, ground, or powdered tobacco that is not 

intended to be smoked,” 26 U.S.C. § 5702(m)(1), whereas “chewing 

tobacco” is “any leaf tobacco that is not intended to be 

smoked.” Id. at § 5702(m)(3). According to Shah Bros., its 

gutkha “is not finely cut, ground or powdered,” and when “the 

gutkha is rinsed in a fine mesh strainer, the spice coating is 

washed off, and the remaining components, i.e., crushed betel 

nut and tobacco leaf, are plainly visible and identifiable as 

such.” Am. Compl. ¶ 36.

6

 See also Shah Bros., Inc. v. United States, __ CIT __, 

770 F. Supp. 2d 1367 (2011) (dismissing Shah Bros.’ additional 

claims against the Alcohol and Tobacco Tax and Trade Bureau).

7

 See U.S. Const. art. III, § 2; Alvarez v. Smith, 558 U.S. 87, 

93 (2009) (holding that an abstract legal dispute regarding the 

lawfulness of Governmental procedures “falls outside the scope 

of the constitutional words ‘Cases’ and ‘Controversies’” when 

such dispute “is no longer embedded in any actual controversy”). 
Court No. 10-00205 Page 4 

“chewing tobacco” under HTSUS Subheading 2403.99.2030 concludes 

this litigation. See, e.g., Atteberry v. United States, 31 CIT 

133, 154 (2007) (not reported in the Federal Supplement) (“Where 

– as here – the Government is willing to provide all the relief

legally available to Plaintiff by reliquidating Plaintiff’s 

merchandise as [requested in the complaint], there is no longer 

a case or controversy between the parties . . . .”).

Shah Bros. opposes the entry of judgment in its favor, 

seeking to press its challenge to the Government’s legal process 

in order to establish grounds for issue preclusion in collateral 

or future litigation involving the classification of its 

merchandise. See Pl.’s Resp. to Def.’s Mot. to Confess J. But 

because the Government has agreed to reliquidate the merchandise 

at the tariff and tax rates requested in Shah Bros.’ amended 

complaint, Shah Bros.’ claims regarding the Government’s 

methodology for arriving at the initial classification are “no 

longer embedded in any actual controversy.” Alvarez, 558 U.S. 

at 93. Such claims pose precisely the sort of abstract legal 

questions that “fall[] outside the scope of the constitutional 

words ‘Cases’ and ‘Controversies.’” Id.8 “If a dispute is not a 

8

 In any event, “collateral estoppel does not [generally apply 

in] successive litigation over the classification of 

merchandise, even when the subsequent importations involve the 

same issues of fact and the same questions of law.” 

DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1321 

(footnote continued) 
Court No. 10-00205 Page 5 

proper case or controversy, the courts have no business deciding 

it, or expounding the law in the course of doing so.” 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).

Shah Bros. also contends that this case must be 

litigated, notwithstanding the Government’s agreement to 

reliquidate in accordance with the relief requested, because the 

claimed misclassification is “capable of repetition, yet evading 

review.” Pl.’s Resp. to Def.’s Mot. to Confess J. at 3 (quoting 

Wilsey Foods, Inc. v. United States, 18 CIT 85, 86 (1994) (not 

reported in the Federal Supplement)). This phrase is rooted in 

a line of cases holding that defendants may not escape judicial 

review by engaging in short-term conduct whose effect on wouldbe plaintiffs’ rights is irrevocably finalized before litigation 

can reach the merits, leaving plaintiffs without any chance of 

redress.9

 The case relied on by Shah Bros., for example, 

(Fed. Cir. 2006) (internal quotation marks, citation, and 

footnote omitted). The sole recognized exception to this 

principle – applied in granting preclusive effect to a prior 

holding that invalidated a Customs regulation, Gulfstream 

Aerospace Corp. v. United States, 21 CIT 1083, 1094, 

981 F. Supp. 654, 665 (1997) (“To ensure equal treatment to 

. . . all importers, the Court finds that the [regulation] 

validity issue adjudicated in [a prior case] must be preclusive 

against the Customs Service.”) – is not applicable here, though 

the policy considerations announced in that decision may be 

relevant in the event of another dispute between the parties 

regarding the classification of Shah Bros.’ gutkha.

9

 See, e.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (holding 

that because the burden placed by a State on the nomination of 

(footnote continued) 
Court No. 10-00205 Page 6 

involved the classification and exclusion of perishable 

merchandise; when the excluded merchandise spoiled and was 

consequently destroyed, the Government argued that there was no 

longer a live controversy. Rejecting the Government’s argument, 

the court declined to dismiss the case as moot because doing so 

would have left the importer without any chance of redress, as 

any future excluded merchandise would similarly perish before 

the court could rule on the legality of its classification and 

exclusion. See Wilsey, 18 CIT at 88.

This is not such a case. Here, a judgment in Shah 

Bros.’ favor will ensure that its merchandise is assessed the 

tariff and tax rates requested in its amended complaint.10 Shah 

Bros. will be refunded all excess duties and taxes paid, along 

candidates for statewide offices controlled future elections, 

the fact that the election in question had already been held and 

could not be redone did not moot an action for declaratory 

relief challenging the legality of this burden because “[t]he 

problem [was] therefore ‘capable of repetition, yet evading 

review’”) (quoting S. Pac. Terminal Co. v. Interstate Commerce 

Comm’n, 219 U.S. 498, 515 (1911) (denying motion to dismiss case 

as moot after the challenged agency order expired because such 

short-term orders are “capable of repetition, yet evading 

review,” and because permitting the case to go forward would 

prevent a situation where parties “have their rights determined 

by the [agency] without a chance of redress”)).

10 Compare Am. Compl. ¶ 92(a) (requesting the court to enter 

judgment in Shah Bros.’ favor and hold the imported gutkha to be 

chewing tobacco under HTSUS Subheading 2403.99.2030), with 

Def.’s Mot. to Confess J. at 2 (moving to confess judgment in 

favor of Shah Bros., reliquidate the entry in question, and 

refund to Shah Bros. all excess duties and taxes paid along with 

lawful interest). 
Court No. 10-00205 Page 7 

with lawful interest. Contrary to Shah Bros.’ characterization, 

terminating this litigation by entering judgment in Shah Bros.’ 

favor would not “leave the defendant . . . free to return to 

[its] old ways.”11 Nor is this a case where litigation on the 

merits is necessary to prevent the Government from affecting the 

Plaintiff’s rights without a chance for redress. On the 

contrary, Shah Bros. will be redressed in full, being refunded 

all duties and taxes paid in excess of those owed for 

merchandise entered as chewing tobacco. And if or when another 

controversy involving the classification of Shah Bros.’ 

merchandise arises, Shah Bros. is free to litigate the matter 

and obtain all redress lawfully available to it. 

11 See Pl.’s Resp. to Def.’s Mot. to Confess J. at 3 (quoting 

Lizarraga Customs Broker v. Bureau of Customs & Border Prot., 

No. 08-00400, 2010 WL 3859766, at *6 (CIT Oct. 4, 2010) (quoting 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

528 U.S. 167, 189 (2000) (discussing the well-settled principle 

that “a defendant’s voluntary cessation of a challenged practice 

does not deprive a federal court of its power to determine the 

legality of the practice” unless it is “absolutely clear that 

the allegedly wrongful behavior could not reasonably be expected 

to recur”) (internal quotation marks and citations omitted))).

Here, the Government is not merely voluntarily ceasing a 

challenged practice. It is conceding the case and will be bound 

by the judgment against it. As to the Government’s 

classification of any future entries of Shah Bros.’ merchandise, 

such action may be challenged – and, as appropriate, redressed – 

regardless of whether judgment is entered in this case pursuant 

to Defendant’s confession thereto or a complete litigation on 

the merits. See, e.g., Avenues in Leather, Inc. v. United 

States, 317 F.3d 1399, 1403 (Fed. Cir. 2003) (“[E]ach new entry 

is a new classification cause of action, giving the importer a 

new day in court.”) (citation omitted).
Court No. 10-00205 Page 8 

Accordingly, the Government having agreed to redress the 

Plaintiff in full, no controversy or injury remains for the 

court to address. Defendant’s motion for entry of judgment in 

Plaintiff’s favor must therefore be granted and Plaintiff’s 

motion to compel discovery must be dismissed as moot.

CONCLUSION

As explained above, because the Government has agreed to 

provide all the relief that is legally available to Shah Bros. – 

by reliquidating the merchandise in question at the tariff and 

tax rates claimed in the amended complaint – no live controversy 

remains between the parties. Absent a live controversy, this 

Court will not rule on an abstract question regarding the 

lawfulness of the Government’s methodology for classifying the 

merchandise that it has now agreed to reclassify. Accordingly, 

judgment shall be entered for the Plaintiff. Plaintiff’s 

outstanding motion to compel discovery is dismissed as moot.

It is SO ORDERED. 

____/s/ Donald C. Pogue_____ 

Donald C. Pogue, Chief Judge 

Dated:

 New York, NY 

December 27, 2013