Court Invalidates Anti-Dumping Duty Levy During Sunset Review: Refund Ordered

The court found the initiation of the sunset review valid as it occurred before the expiration of the original notification. However, the court deemed the levy of anti-dumping duty during the sunset review invalid as the necessary notification was not issued before the expiry of the original notification. The court declared the subsequent notification attempting to amend the original one as illegal, ordering a refund of amounts paid and partially allowing the writ petitions by setting aside the impugned notification.

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Issues Involved:
1. Legality of the Central Government's decision to initiate anti-dumping duty extension proceedings.
2. Validity of Notification No. 06/2014-Customs (ADD) levying anti-dumping duty on Acrylonitrile Butadiene Rubber from Korea RP.
3. Compliance with procedural requirements for initiating and notifying the sunset review.
4. Authority to levy anti-dumping duty during the pendency of the sunset review.

Detailed Analysis:

1. Legality of the Central Government's decision to initiate anti-dumping duty extension proceedings:
The petitioners challenged the legality of the Central Government's decision to extend anti-dumping duty under Section 9A of the Customs Tariff Act, 1975 ("CTA"). The Central Government held an inquiry and imposed anti-dumping duty on Acrylonitrile Butadiene Rubber by a notification dated 02-01-2009, which was to be in force for five years till 01-01-2014. The petitioners argued that the Central Government could not levy and collect any anti-dumping duty after 01-01-2014 without issuing a notification in the Gazette before the expiry of the original notification, as required by Section 9A (5) and the Rules.

2. Validity of Notification No. 06/2014-Customs (ADD) levying anti-dumping duty on Acrylonitrile Butadiene Rubber from Korea RP:
The petitioners contended that the notification dated 23-01-2014, which amended the original notification to extend the anti-dumping duty till 01-01-2015, was issued without legal authority. They argued that once the original notification lapsed on 01-01-2014, there could be no amendment to an expired notification. The respondents argued that the sunset review was initiated before the expiry of the original notification and that the extension notification was valid.

3. Compliance with procedural requirements for initiating and notifying the sunset review:
The petitioners argued that the initiation of the sunset review was invalid as the notice proposing the review was published on 06-01-2014, after the expiration of the original notification. They relied on Rule 6 and Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, which mandate that the initiation of the sunset review should be published and made available to concerned parties before the expiry of the original notification. The respondents contended that the initiation of the sunset review was valid as it was printed in the Official Gazette on 31-12-2013.

4. Authority to levy anti-dumping duty during the pendency of the sunset review:
The petitioners argued that the levy of anti-dumping duty during the pendency of the sunset review was invalid as the second proviso to Section 9A (5) requires an express notification to be issued before the expiry of the original notification. The respondents argued that the continuation of anti-dumping duty during the sunset review is mandatory and that the notification of 23-01-2014 was valid.

Findings:

1. Initiation of Sunset Review:
The court found that the initiation of the sunset review was valid as the initiation took place on 31-12-2013, and the notice was published in the Official Gazette on 31-12-2013, though it was made available on 06-01-2014. The court held that the initiation was within the time and that public notice issued within a proximate period from that date was valid.

2. Levy of Anti-Dumping Duty During Pendency of Sunset Review:
The court held that the levy of anti-dumping duty during the pendency of the sunset review was invalid. The second proviso to Section 9A (5) requires that a notification for the continuation of the levy must be issued before the expiry of the original notification. The notification of 23-01-2014, which sought to amend the original notification, was issued after the lapse of the original notification and was without authority of law. The court held that the Central Government's attempt to levy the duty through the later notification was contrary to the terms of the proviso to Section 9A (5) and violated Article 265 of the Constitution of India.

Conclusion:
The court declared the notification of 23-01-2014 illegal and set it aside. The petitioners were entitled to a refund of the amounts paid till date. The writ petitions were partly allowed to the extent of declaring the impugned notification illegal and granting a refund.

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