2026 (3) TMI 518 - AT - Customs

Retrospective anti dumping levy cannot be applied for the gap between provisional expiry and final notification; recovery is unsustainable.

The note addresses whether anti dumping duty (ADD) and interest can be levied on imports entered during the interregnum between expiry of a provisional ... Levy of Anti-dumping Duty (ADD) - imports of PVC flex banner entered for home consumption during the interregnum (gap) period between expiry of a provisional ADD notification and issuance of a final ADD notification - provisional assessment and finalisation - absence of contemporaneous statutory time bar - Whether ADD could be levied on imports of PVC Flex Banner made during the interregnum or the gap period i.e. from 30.01.2011 – (a date after the lapse of the provisional ADD) to 24.08.2011 (a date prior to the issuance of Notification, retrospectively levying definitive ADD for a period of five years on the subject goods). Prohibition on levy of anti dumping duty during interregnum - HELD THAT:- The Tribunal applied and followed the ratio of the Supreme Court in Commissioner of Customs, Bangalore v. G.M. Exports [2015 (9) TMI 1162 - SUPREME COURT] and related authorities to hold that a final anti dumping notification cannot operate to levy duty for the interregnum beyond the period for which provisional measures lawfully operated. Rule 20(2)(a) cannot be read so as to extend the period of provisional duty beyond the mandatory limits in Rule 13 and Section 9A, and retrospective levy for the gap period would amount to an impermissible retrospective imposition except in circumstances expressly provided by Section 9A(3) and the Rules. Consequently, imports made on 04.06.2011 during the identified gap (30.01.2011-24.08.2011) were not liable to the anti dumping duty imposed by Notification No.82/2011 CUS dated 25.08.2011 for that interregnum period. The Larger Bench of this Tribunal in the case of Sunrise Enterprise v. Commissioner of Central Excise, Jalandhar [2015 (10) TMI 93 - CESTAT NEW DELHI (LB)] had expressly stated that the date of presentation of Bill of Entry is relevant date for determining applicable rate of duty and given the mandate of law in the case of G.M. Exports - there being no anti-dumping duty leviable on the said date, we are of the considered view that the assessee importer is not liable for payment of any ADD in the matter. No anti dumping duty is leviable for the interregnum period; the ADD levy on the subject imports was unsustainable. Finalisation of provisional assessment - absence of contemporaneous statutory time bar - Whether delay in finalisation of the provisional assessment (and final charging of ADD after many years) rendered the ADD levy invalid or disentitled the Revenue from recovery - HELD THAT:- The Tribunal noted that the Customs (Finalisation of Provisional Assessment) Regulations, 2018 were notified only in 2018 and therefore, at the material time of these imports and their provisional assessment, there was no statutory two month timeline or specified consequences for delayed finalisation. The adjudicating authority had recorded that the importer responded to revenue communications only in 2021 and the finalisation followed; on the materials before it the Tribunal found the appellant's complaint of inordinate delay unsubstantiated as a legal ground to vitiate assessment under the law in force at the relevant time. Delay in finalisation did not, on the legal position prevailing at the material time, invalidate the process and did not provide a basis to sustain the ADD levy in the circumstances of this case. Appellate Tribunal bench jurisdiction in anti dumping appeals limited to statutory scope of section 9C - HELD THAT:- The Tribunal interpreted section 9C and held that the special bench requirement in sub section (5) is confined to appeals against the designated authority's determination on existence, degree and effect of dumping (matters within section 9C(1)). The statutory scheme does not oust regular Tribunal Benches from adjudicating other legal and assessment issues arising from anti dumping levy and its recovery. Accordingly, the plea that only a Special Bench could hear the present appeal was rejected. The Bench had jurisdiction to entertain and decide the appeal. Final Conclusion: Following the authority of the Supreme Court in G.M. Exports and subsequent consistent decisions, the Tribunal held that anti dumping duty could not be levied for the interregnum period and, on that basis, set aside the impugned order; peripheral objections about delay in finalisation and incompetence of the Bench were rejected. The appeal succeeds and the levy of ADD on the subject imports is not sustainable. Issues: Whether anti-dumping duty (ADD) could be levied and recovered from imports of PVC flex banner entered for home consumption during the interregnum (gap) period between expiry of a provisional ADD notification and issuance of a final ADD notification, and whether the appellant-importer is liable for payment of ADD and interest on Bill of Entry No.3702906 dated 04.06.2011.Analysis: Applicable legal provisions include Section 18 of the Customs Act, 1962 governing provisional assessment and finalisation; Section 9A of the Customs Tariff Act, 1975 and Rules 13, 17, 18 and 20 of the Anti-dumping Duty Rules, 1995 governing imposition, provisional levy, final findings and commencement of ADD; Regulation 5 of the Customs (Finalisation of Provisional Assessment) Regulations, 2018 relevant to timelines for finalisation; and Notifications No.79/2010-CUS dated 30.07.2010 (provisional ADD) and No.82/2011-CUS dated 25.08.2011 (final ADD). The controlling legal principle, as laid down by the Supreme Court in Commissioner of Customs, Bangalore v. G.M. Exports, is that a final ADD notification cannot lawfully impose and collect definitive duty for the interregnum period beyond the duration permitted for provisional measures under Rule 13, and retrospective levy of ADD is permissible only within the specific conditions and limits set out in Section 9A(3) and the Rules. Rule 20(2)(a) cannot be construed so as to extend provisional measures beyond the mandatory maximum period for provisional duty; any levy for the interregnum would amount to an unlawful retrospective levy absent statutory prescription. Prior authoritative decisions and consistent tribunal and high court rulings applying the same principles were considered in assessing whether the final notification could be applied to imports made during the gap period. The factual record shows imports were entered on 04.06.2011 when no definitive ADD notification was in force and the provisional notification had earlier expired; the final notification imposing ADD was issued on 25.08.2011. The delay in finalising the provisional assessment was examined but no legally cognizable prejudice to the appellant arising from the absence of strict finalisation timelines at the material time was found to sustain the ADD levy.Conclusion: The levy and recovery of anti-dumping duty and interest for the interregnum period between expiry of the provisional ADD and issuance of the final ADD notification is not sustainable; the appellant-importer is not liable to pay the ADD and interest charged by the lower authority. The appeal is allowed and the impugned order is set aside in favour of the appellant.