TaxTMI 
TaxTMI 
2022 (5) TMI 1400
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....[the subject goods] and has been exporting the subject goods to India. On the basis of the final findings dated 17.05.2010 of the designated authority, the Central Government issued a notification dated 26.07.2010 imposing anti-dumping duty for a period of five years on the import of the subject goods originating in or exported from China PR and Indonesia. Under section 9A(5) of the Customs Tariff Act, 1975 [the Tariff Act], such imposition of anti-dumping duty shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. 3. This notification dated 26.07.2010 of the Central Government was challenged by certain parties before the Tribunal, and the Tribunal, by an order dated 11.08.2011, in Allied Enterprises vs. Designated Authority [2011 (272) E.L.T. 127 (Tri.-Del.)], remanded the matter to the designated authority for giving a post-decisional hearing. It was, however, left open to designated authority to make such modifications in the final findings as would be considered necessary and in case any modifications were made, they would be given effect to by the Central Government by making necessary amendments in the notification....
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....ther interested parties, if any, shall also be allowed to participate in such post-decisional hearing. Any modifications made in the final findings would be considered by giving effect to the same by the Government by carrying out the necessary amendments to the impugned notifications imposing anti-dumping duty. This process shall be completed within 6 months from the date of this order and status quo shall be maintained meanwhile. Since we are allowing these appeals by remand, the related stay petitions, MAs and COs stand disposed off." (emphasis supplied) 4. It needs to be noted that the contention that was raised by the appellants before the Tribunal was that the designated authority had violated the principles of natural justice in as much as while the public hearing was conducted by a particular officer as the designated authority, the final findings were recorded by another officer as the designated authority. For this contention, reliance was placed on the judgment of the Supreme Court in Automotive Tyre Manufacturers Asson. vs. Designated Authority [2011 (263) E.L.T. 481 (S.C.)]. This contention was accepted and the Tribunal remanded the matter to the designated autho....
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....thority, extending the anti-dumping duties for another period of five years. 7. Prior to this, a notification dated 06.08.2015 had been issued by the Central Government extending the anti-dumping duty till 25.07.2016 as the proceedings before the designated authority were not likely to conclude before 25.07.2015, which was the date when the period of five years would expire when counted from 26.07.2010. 8. This notification dated 08.08.2016 issued by the Central Government imposing anti-dumping duty for a period of five years and the final findings dated 08.07.2016 were challenged by the appellant before the Madras High Court in Writ Petition No. 42644 of 2016 filed on 28.11.2016. On 09.10.2020 this Writ Petition was dismissed as withdrawn with liberty to the petitioner to file an appeal before the Tribunal and the relevant portion of the judgment of the Madras High Court is reproduced below: "2. The Petitioner challenges the notification in File No.15/9/2015 - DGAD dated 08.07.2016 issued by the Second Respondent and consequent Customs Notification No.43/2016-Customs dated 08.08.2016 issued by the First Respondent. 3. When it is pointed out by Learned Couns....
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.... between 26.07.2015 and 05.08.2015; and (iii) In terms of the notification dated 06.08.2015, the anti-dumping duty was to continue upto 25.07.2016 and it is only by a notification dated 08.08.2016 that anti-dumping duty was continued for a period of five years. Thus, there was a gap of thirteen days between 26.07.2016 and 07.08.2016. 11. On the basis of the aforesaid facts, learned counsel for the appellant made the following submissions: (i) Once the Tribunal in Allied Enterprises on 11.08.2011 had, while adjudicating upon the legality of the final findings dated 17.05.2010 and the notification dated 26.07.2010, remanded the matter to the designated authority for affording post-decisional hearing, the notification dated 26.07.2010 and the final findings dated 17.05.2010 impliedly stood quashed; (ii) Consequent to the aforesaid directions of the Tribunal, the designated authority gave final findings on 10.04.2012 confirming the earlier final findings dated 17.05.2010, but the Central Government did not issue any notification to accept the final findings dated 10.04.2012. Anti-dumping duty, therefore, could not have been imposed on the basis of su....
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....ever, the duty can be extended for a maximum period of one year. There could, therefore, be a gap or a vacuum between the expiry of the one year duty and fresh imposition of five years duty on completion of investigations. This gap does not invalidate the levy of fresh duty for a period of five years. In support of this contention reliance has been placed on the decision of the Delhi High Court in Fairdeal Polychem LLP vs. Union of India [2016 (334) E.L.T. 241 (Del.)], which judgment relied upon the decision of the Supreme Court in Commissioner of Customs, Bangalore vs. G.M. Exports and Others [(2016) 1 Supreme Court Case 91]; and (iv) In any view of the matter, the notification dated 08.08.2016 stood expired on 07.08.2021 and, therefore, the appeal has been rendered infructuous. In support of this contention reliance has been placed on the decision of the Supreme Court in Designated Authority vs. Reliance Industries Ltd. [2004 (163) E.L.T. A113 (S.C.)] 13. Shri Ameet Singh, learned counsel appearing for the designated authority and Shri Nagendra Yadav, learned counsel appearing for the Union of India, adopted the submissions made by Ms. Reena Khair, learned counsel for....
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....owever, if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. In a case where a review initiated before the expiry of the period of five years has not concluded before the expiry of five years, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. 18. The first contention raised by learned counsel for the appellant is that in the absence of any notification issued by the Central Government imposing anti-dumping duty on the basis of the recommendation made by the designated authority in the final findings dated 10.04.2012, anti-dumping duty could not have been levied. In this connection, learned counsel for the appellant pointed out that the Tribunal, while adjudicating the challenge to the final findings dated 17.05.2010 of the designated authority and the notification dated 26.07.2010 issued by the Central Governmen....
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....stances it was not necessary to make any changes in the notification earlier issued. Thus, as even after affording post-decisional hearing to the parties, the designated authority confirmed the earlier findings, there was no necessity for the Central Government to issue a fresh notification imposing anti-dumping duty as the earlier notification dated 26.07.2010 issued by the Central Government imposing anti-dumping duty warranted no change. The said notification dated 26.07.2010 continued to operate as a result of which anti-dumping duty was leviable upto 25.07.2015. 21. Learned counsel for the appellant, in the alternative, urged that even if the notification dated 26.07.2010 was operative then too it came to an end on 25.07.2015. In this connection, learned counsel pointed out that though the sunset review investigation was initiated on 22.07.2015 before the expiry of aforesaid period of five years, but a notification in terms of the second proviso to section 9A(5) of the Tariff Act was issued only on 06.08.2015 by which the notification dated 26.07.2010 was amended by adding paragraph 3 to the effect that notwithstanding anything contained in paragraph 2, the notification sha....
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....l Government from continuing the levy beyond that period or date, except to the extent its conditions were fulfilled, i.e. if the levy of the duty were to have been notified before such date. In such cases, the power under the second proviso to Section 9A(5), after expiry of the date of the original notification, is unavailable. The notification in the present case states that : "3. Notwithstanding anything contained in paragraph 2, this notification shall remain in force upto and inclusive of the 1st day of January, 2015, with respect to anti-dumping duty on Acrylonitrile Butadiene Rubber originating in, or exported from Korea RP, unless revoked earlier". Neither does Section 9A(1) nor Section 9A(5) permit the extension of anti-dumping duty once the main period of five years lapses, as held earlier. The Central Government is not arguing that it had the benefit of Section 21 of the General Clauses Act - for the simple reason that extension or amendment of an earlier notification can be only after following the procedure adopted while issuing the main notification. In the present case, the amendment is retrospective, as it were, and made effective from 2009. It was....
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....ing duty. Reason is simple. There no duty or tax can be imposed without the authority of 'law'. Here, such a law has to be in the form of an appropriate notification and in the absence thereof the duty, which is in the form of a tax, cannot be extracted as, otherwise, it would violate the provisions of Article 265 of the Constitution of India. As a fortiorari, it becomes apparent that the Government is to exercise its power to issue a requisite notification. In this hue, the expression 'may' in the second proviso to sub-section (5) has to be read as enabling power which gives discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, becomes an enabling provision. xxxxxxxxxxxx 33) The anti-dumping duty may continue, pending the outcome of the review, for a further period not exceeding one year. Thus, maximum period of one year is prescribed for this purpose which implies that the period can be lesser as well. The Government is, thus, to necessarily form an opinion as to for how much period it wants to continue the anti-dumping duty pending outcome of such a review. Moreover, since the maximum period is one year, if t....
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....le 11.1, 11.2 and 11.3 of the Agreement for Implementation and Article VI of the GATT, commonly known as 'Implementation Agreement'. xxxxxxxxxxx." 24. Subsequently, in Forech India, the same principle was reiterated by the Delhi High Court. In this case, anti-dumping duty had been imposed for a period of five years which was to expire on 04.05.2013. On 30.04.2013, sunset review proceedings had been initiated but it is only after 60 days of the expiry of anti-dumping duty that a notification was issued extending the anti-dumping duty for a period of one year from 05.05.2013 to 04.05.2014. The Delhi High Court, after considering the judgment of Supreme Court in Kumho Petrochemicals, held that levy imposed by the notification issued 60 days after the expiry of anti-dumping duty was without authority of law and the observations are: "20. Applying the said principle to the facts of the present case, it is seen that the Notification No. 17/2013 issued 60 days after the expiry of the levy of Anti-dumping duty under the first five year period, would be non est because it sought to extend a levy which had lapsed on 4-5-2013. The second proviso to Section 9A(5) of the Act is an e....
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....ng any anti-dumping duty for a period of five years. 28. In view of the aforesaid finding that the notification dated 06.08.2015 is non-est in law, it would not be necessary to examine this issue, but in any view of the matter even if anti-dumping duty were to continue upto 25.07.2016, then too, anti-dumping duty could not have been imposed between 26.07.2016 and 07.08.2016. 29. The third and the main contention advanced by the learned counsel for the appellant to assail the final findings dated 08.07.2016 of the designated authority and the consequential notification dated 08.08.2016 issued by the Central Government is that since there was a gap before the imposition of anti-dumping duty by notification dated 08.08.2016, anti-dumping duty could not have been imposed, in view of the judgment of the Supreme Court in Kumho Petrochemicals. 30. It is not possible to accept this contention of the learned counsel for the appellant. 31. In a sunset review, a notification is issued by the Central Government exercising powers under the first proviso to section 9A(5) of the Tariff Act, unlike the powers that are exercised by the Central Government under the second proviso to sect....
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....ipated in the Sunset review investigation of the anti-dumping duty imposed on subject goods when imported from China PR and Indonesia. The present appeal is against final finding dated 8-7-2016 of the Designated Authority (DA), Directorate General of Anti-Dumping and Allied Duties, Ministry of Commerce and Industry and Customs Notification No. 43/2016-CUS (ADD), dated 8-8-2016 which was issued based on the said final finding of the DA. The final finding now impugned is on conclusion of Sunset review of anti-dumping duty imposed on the subject goods. The Sunset review was done on a petition filed by Association of Man-made Fibre Industry of India on behalf of Domestic Industry (DI). M/s. Grasim Industries Ltd. is the sole producer who furnished all information for the review. The DA concluded that the subject goods continue to enter into the market with dumped prices. Dumping margin and injury margin are positive and significant. Performance of the Domestic Industry has worsened in terms of various economic parameters. There is likelihood of price under cutting in case of cessation of anti-dumping duty. Based on such finding he recommended continuation of definitive anti-dumping dut....
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.....08.2016 were to expire on 07.08.2021, and so the Central Government, by a notification dated 30.06.2021, extended anti-dumping duties upto 31.10.2021. In regard to the second sunset review initiated on 22.02.2021, the designated authority, in its final findings notified on 31.07.2021, concluded that there was no justification for recommending continuation of anti-dumping duty and accordingly recommended for withdrawal of anti-dumping duty on import of subject goods from the subject countries imposed by notification dated 08.08.2016, which period was subsequently extended upto 31.10.2021 by the notification dated 30.06.2021. Consequently, the Central Government, by a notification dated 12.08.2021, rescinded the notification dated 08.08.2016, as amended by notification dated 30.06.2021, except as respects things done or omitted to be done before such rescission. 34. It is for this reason that learned counsel for the respondent submitted that as the imposition of anti-dumping duty imposed by notification dated 08.08.2016 stood expired on 07.08.2021, this appeal has been rendered infructuous and in support of this contention reliance has been placed on the judgment of the Supreme C....