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 ADD notification and issuance of a final notification. It applies principles limiting provisional measures and prohibiting unlawful retrospective levies, holding that final notifications cannot lawfully impose definitive ADD for a gap period beyond the statutory provisional window. The analysis rejects construction of rules that extend provisional levy beyond prescribed limits and concludes that ADD and interest charged for the interregnum are unsustainable, so recovery is not warranted.

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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.

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