TaxTMI 
TaxTMI 
2017 (7) TMI 975
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....ed by the Central Government imposing a final Anti-Dumping Duty ('ADD') on imports of Plain Gypsum Plasterboard originating in or exported from China PR, Indonesia, Thailand, and UAE shall remain in force up to and inclusive of 6th June, 2018. 2. The facts are that pursuant to an anti-dumping investigation concerning import of Plain Gypsum Plasterboard originating in or exported from China PR, Indonesia, Thailand, and UAE, the Designated Authority ('DA') issued its preliminary findings by a Notification dated 19th March, 2012 recommending imposition of provisional ADD. On the basis of said recommendation the Central Government (Respondent No.1) levied provisional ADD on imports of the aforementioned products from the select countries by Notification No.32/2012-Cus.(ADD) dated 7th June, 2012. 3. On completion of the investigation, the Final Findings were issued on 15th January, 2013 whereby the DA recommended imposition of final ADD. Accepting the said recommendation, the Central Government issued the final duty Notification No.6/2013-Cus.(ADD) dated 12th April, 2013. This was valid for a period of five years from the date of imposition of the provisional duty, i.e., 7thJune, ....
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....d notification. 7. Mr. Rakesh Kumar, learned Standing Counsel for the Central Government, submitted that in terms of the second proviso to Section 9A (5) of the CTA wherein a sunset review has been initiated prior to the expiry of the ADD notification then such ADD notification would continue to remain in force pending the outcome of the sunset review and in any event for not more than one year after such initiation of sunset review. 8. Mr. Jitendra Singh, learned counsel appearing for Respondent No. 3 i.e., representing the domestic industry, pointed out that the decision in Kumho Petrochemicals Company Limited (supra) was made in the context of there being a considerable gap between the initiation of the sunset review and the issuance of the notification continuing the ADD, whereas in the present case there was virtually no gap between the expiry of the period of the original ADD notification and the impugned notification.The expiry of the ADD under the original notification was on the midnight hours of 6th June, 2017 and the commencement of the notification continuing the imposition of ADD was again in the midnight hour of 6th/7th June, 2017.Thus, there was no gap whatsoev....
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....r. 12. The second proviso to Section 9A(5) of the CTA is an exception to the main portion of Section 9A which states that the ADD imposed thereunder earlier ceases to have effect on the expiry of five years from the date of imposition. In terms of the second proviso where the sunset review is initiated prior to the expiry of the period of five years, then the Central Government 'may' continue the ADD for a further period which does not exceed one year. Much stress has been placed on the words "may continue" to indicate the discretion of the Central Government not to continue the imposition of the ADD notwithstanding that the sunset review has been initiated. 13. In Kumho Petrochemicals Company Limited (supra), the facts were that a notification dated 30th July, 1997 was issued by the Central Government imposing ADD on import of Acrylonitrile Butadiene Rubber ('product') from Korea RP and Germany. The five-year period was to expire on 16th July, 2002 prior to which the first sunset review investigation was initiated by the DA. Accepting its recommendation, the Central Government issued another notification dated 10th October, 2002 whereby the ADD was to remain in force....
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....erregnumbeyond the period of one year and till the review exercise is complete and freshnotification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between. (vi) On the facts of the case, on the date the Central Government issued the notification dated 23rd January, 2014 extending the ADD, "there was no Notification inexistence the period whereof could be extended." (vii) Two things which follow from the reading of the Section 9A (5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposing anti-dumping duty. (viii) Even otherwise, Notification dated 23rd January, 2014 amends the earlier Notification dated 2nd January, 2009, which is clearfrom its language, and has been reproduced above. However, when Notification dated 2nd January, 2009 itself had lapsed on the expiry of five years i.e., on 1st January, 2014, and was not in existence on January 23, 2014 question of amending a non-existing Notification does not ar....