TaxTMI 
TaxTMI 
2023 (4) TMI 73
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....an exporter of 'Flexible Slabstock Polyol' [the subject goods] produced in Singapore, has filed this appeal to assail the customs notification dated 09.06.2020 issued by the Central Government for imposition of anti-dumping duty on the subject goods for a period of five years from the date of publication of the notification on the basis of the sunset review final findings dated 17.03.2020 of the designated authority recommending continuation of definitive anti-dumping duty. 2. Two issues arise for consideration in this appeal. The first is whether the Central Government could have issued the customs notification on 09.06.2020, as the period for which the existing antidumping duty had earlier been imposed by notification dated 07.04.2015 expired on 06.04.2020. The second is whether because of the provisions of section 6 of the Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [the 2020 Relaxation Act] relating to 'Relaxation of the Time Limit under certain Indirect Tax Laws', the period for issue of the notification by the Central Government under the first proviso to section 9A of the Customs Tariff Act, 1975 [the Tariff Act], stood extende....
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....ns before the cessation of existing duty. The language of section 9A(5) read with its provisos and rule 18(1) have to be harmoniously interpreted so as to give effect to the legislative intention under the statute. In the event of a conflict, the obligations in the Tariff Act shall override that under the 1995 Anti-Dumping Rules. Hence, rule 18 cannot enlarge the maximum permissible time allowed under section 9A(5); (iii) Anti-dumping levy is a temporary legislation. Section 9A(5) expressly states that anti-dumping duty shall cease to have effect on the expiry of five years from the date of imposition. Section 9A(5) also acts as an enabling provision as the first proviso therein authorizes that an anti-dumping levy may be extended for a further period of five years subject to the conditions of the first proviso being fulfilled. In a situation where the review is not completed before expiry of the initial levy, the second proviso aids the Central Government to continue the initial levy up to one more year by issuing another customs notification to that effect. The Tariff Act and the 1995 Anti- Dumping Rules do not contemplate any gaps in continued protection to the domestic....
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....nds the procedural time-limit to issue customs notification, section 6 does not state anywhere that it extends any pre-conditions also. The pre-condition in a sunset review is that anti-dumping duty must be already in existence for it to be extended for another five years. Section 6 does not extend this substantive precondition to cover the gap in time. Thus, the original levy which already lapsed on 06.04.2020, is not automatically extended by virtue of section 6 of the 2020 Relaxation Act. 5. Shri Jitendra Singh, learned counsel for the domestic industry assisted by Shri Akshay Soni, however, refuted the contention of the appellant that the notification issued by the Central Government for imposition of anti-dumping duty pursuant to the recommendation made by the designated authority in the sunset review could not have been issued after 06.04.2020 and in this connection reliance has been placed upon the judgment of the Supreme Court in Kumho Petrochemicals and the decision of the Tribunal in PT South Pacific Viscose vs. Union of India Anti-Dumping Appeal No. 50571 of 2022 decided on 19.05.2022. Learned counsel also contended that in any case, the time limit for issuing the not....
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....tral Government, in a review, may extend the period of such imposition for a further period of five years if the Central Government is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury. It also provides that the further period of five years shall commence from the date of order of such extension. 12. The designated authority, on the basis of a duly substantiated application filed by the domestic industry for initiation of sunset review investigation, issued a notification dated 09.08.2019 for initiation of the sunset review investigation to examine whether the expiry of the said duty on the import of the subject goods originating in or exported from Singapore was likely to lead to continuation or recurrence of dumping and injury to the domestic industry. It is, therefore, not in dispute that the sunset review investigation was initiated prior to the expiry of five years i.e. prior to 06.04.2020. The designated authority submitted the final findings to the Central Government on 17.03.2020, which date is also before 06.04.2020. The Central Government, thereafter, in exercise of the powers conferred by sub-sectio....
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....Government. 16. Rule 4 provides for duties of the designated authority and subrule (d) of rule 4 provides that it shall be the duty of the designated authority to recommend to the Central Government the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, after considering the principles laid down in the Annexure III to the Rules. Rule 17 deals with final findings. It provides that the designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final findings. If the final findings are in the affirmative, the designated authority shall recommend the amount of duty which, if levied, would remove the injury to the domestic industry after considering the principles laid down in Annexure III to the Rules. The final findings of the designated authority, in such a situation, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and the designated authority shall also determine an individual mar....
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.... dumping and injury to the domestic industry. (2) Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review. (3) The provision of rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, and 20 shall be mutatis mutandis applicable in the case of review." 23. As noticed above, the Tariff Act and the 1995, Anti-Dumping Rules framed thereunder provide for a detailed exercise to be undertaken before anti-dumping duty can be imposed under section 9A of the Tariff Act. It is for this reason that rule 17 provides for a time period of one year to the designated authority to submit its final findings to the Central Government from the date of initiation of the investigation and thereafter, a period of three months time to the Central Government to take a decision on the recommendation made by the designated authority in the final findings. 24. The contention of the learned counsel for appellant is that since the imposition of anti-dumping duty by customs notification dated 07.04.2015 for a period of five years expired on 06.04.2020, it was not open to the Central Government to issue the notifica....
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....phasis on the use of the expression 'continue to remain in force' and have held that any extension for a further period not exceeding one year should be done before the expiry of the period of five years, for which period the anti-dumping duty had been imposed. This issue as to whether a notification in terms of the second proviso to section 9A(5) of the Tariff Act can be issued only during the lifetime of the notification imposing antidumping duty was examined by the Delhi High Court in Kumho Petrochemicals Co. Ltd. vs. Union of India 2014 (306) E.L.T. 3 (Del.). The final findings dated 17.07.1997 of the designated authority were accepted by the Central Government and a notification 30.07.1997 was issued by the Central Government imposing anti-dumping duty for a period of five years, but before the expiry of the said period of five years a sunset review investigation was initiated. On the basis of this investigation, a notification dated October 10, 2002 was issued by the Central Government imposing anti-dumping duty till 10.12.2007. On 08.10.2007, a second sunset review investigation was initiated and this resulted in issuance of a notification 02.01.2009 by the Central Governmen....
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....ho Petrochemicals was assailed by the Union of India before the Supreme Court. The Supreme Court, in the judgment dated 09.06.2017, did not find any infirmity in the approach of the High Court in interpreting the second proviso to sub-section (5) of section 9A of the Tariff Act and the relevant observations of the Supreme Court are as follows: "31) After giving due consideration to the arguments advanced by the learned counsel for the parties, we are inclined to agree with the High Court that proviso to sub-section (5) of Section 9A of the Act is an enabling provision. That is very clear from the language of the said provision itself. Sub-section (5) of Section 9A gives maximum life of five years to the imposition of anti-dumping duty by issuing a particular notification. Of course, this can be extended by issuing fresh notification. However, the words 'unless revoked earlier' in sub-section (5) clearly indicate that the period of five years can be curtailed by revoking the imposition of anti-dumping duty earlier. Of course, provision for review is there, as mentioned above, and the Central Government may extend the period if after undertaking the review it forms an opinio....
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....be any antidumping duty even if the review is pending. In that eventuality, it is only after the review exercise is complete and the Central Government forms the opinion that the cessation of such a duty is likely to lead to continuation or recurrence of dumping and injury, it would issue a notification extending the period of imposition of duty. Therefore, there may be a situation where even when the power is exercised under second proviso and duty period extended by full one year, the review exercise could not be completed within that period. In that situation, vacuum shall still be created in the interregnum beyond the period of one year and till the review exercise is complete and fresh notification 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. ***** 35) With this, we advert to the second facet of the argument, namely whether it was permissible for the Central Government to issue Notification dated January 23, 2014 thereby extending the validity of duty by one year, i.e. after the period of earlier Notification came to an end on January 01, 2014....
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....e outcome of the Sunset Review for a further period not exceeding one year. The essential requirements for such continuation are : (i) the Sunset Review ought to have been initiated before the expiry of the five year period of levy of Anti-dumping duty; (ii) the inquiry has not concluded within the said period; (iii) a prima facie view is formed by the Government that continuance of the Anti-dumping duty would be necessary, and (iv) such extended period would not exceed one year from the date on which the first five years expires. The phrase "may continue to remain in force", assumes that there is a levy which exists and its continuance i.e. its carrying forward - without a break in its existence, is necessary. The moment the levy comes to an end or there is a break in its continuance, it cannot be revived in the Sunset Review exercise. Extending the levy is like stretching the fabric of the levy to cover the extended period for another year. In the present case, the original levy came to an end on 4-5-2013. The levy had a limited life and unless fresh life was infused in it before its predetermined expiry date, it could not ....
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....tion for imposition of duty. The Supreme Court emphasized that the vacuum would be only during the interregnum beyond the period of one year and till the issuance of fresh notification by the Central Government. It, therefore, follows from the decision of the Supreme Court that there is no requirement that a notification has to be issued by the Central Government under the first proviso to section 9A(5) of the Tariff Act only during the lifetime of the earlier notification imposing anti-dumping duty for a period of five years. 34. It is, in view of the aforesaid decision of the Supreme Court in Kumho Petrochemicals, that the learned counsel appearing for the domestic industry, the learned counsel appearing for the designated authority and the learned authorised representative appearing for the Central Government contended that the Central Government can issue a notification for imposition of anti-dumping duty even after the expiry of the period for which the anti-dumping duty was imposed and it is not necessary that the notification for extension of antidumping duty should be issued only during the period the duty is in existence. Learned counsel also submitted that a reading of....
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....ment of India under Article 11(4) of the Implementation Agreement. The Rule cannot override the Act. The Act has fixed a period for completion of Sunset Review within one year from the date of expiry of the initial five year levy and it is in this one year period that the Government must form a view that the cessation of duty would lead to continuation or recurrence of dumping and injury. Therefore, it is only within this period that it may extend i.e. without breaking the continuity of the previous duty or its modified version, for a further period of five years. The thread of the existing duty has to continue from the initial five year levy to the one year extended period of Sunset Review to the proposed five year period. There should be no break in between. However, in the present case, there are two breaks. Therefore, Rule 18(1) does not and cannot be read to lend any authority or power to the Central Government to issue Customs Notification No. 35/2014. It is illegal and, accordingly, set aside. The period of three months under Rule 18(1) can be read only in the case of original notification for Anti-Dumping Duty and not for the Sunset Review." (emphasis supplied) 36. Wh....
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....hatever name called, shall, notwithstanding that completion or compliance of such action has not been made within such time, stand extended to the 30th day of September, 2020 or such other date after 30th day of September, 2020 as the Central Government may, by notification, specify in this behalf:" (emphasis supplied) 38. Subsequently, by a notification dated 30.09.2020, the time period was extended from 30.09.2020 to 31.12.2020. 39. A perusal of section 6 of the 2020 Act makes it clear that the time limit specified in, or prescribed or notified under the Tariff Act falling between 20.03.2020 to 29.09.2020 for the completion of such action as completion of any proceeding or issuance of any order, notice, notification by any authority shall, notwithstanding that completion of such action has not been made within such time, stand extended upto 30.09.2020. 40. The submission advanced by learned counsel for the domestic industry, the designated authority and the Central Government is that even if the contention of the appellant that the notification for imposition of anti-dumping duty could have been issued only on or before 06.04.2002 is accepted, then too the ti....