TaxTMI 
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2025 (7) TMI 729
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....me. 2 W.P.No.22820 of 2022 To call for the records of the Order in Anti Dumping Appeal No.50571 of 2022 dated 19.05.2022 passed by the Principal Bench of CESTAT, New Delhi and quash the same. 3 W.P.No.22830 of 2022 To call for the records of the Sunset Review Initiation Notification No.07/03/2021-DGTR dated 22.02.2021 and all subsequent proceedings including the Final Findings Notification No.07/03/2021-DGTR dated 31.07.2021 issued by the Respondent No.2 and quash the same to the extent challenged herein as being without the authority of law. 4 W.P.No.22834 of 2022 To issue a Writ of Declaration that no Anti-Dumping Duty can be levied by the Respondents on the Viscose Staple Fibre exported from Indonesia post 26.07.2015 in terms of the law laid down by the Hon'ble Supreme Court in UOI Vs. Kumho Petrochemicals Company Limited, 2017 (351) E.L.T. 65 (SC). * Common Final Order No. 50427 of 2022 dated 19.05.2022 3. The Petitioner had filed W.P.No.22825 of 2022 along with the aforesaid Writ Petitions. The said Writ Petition in W.P.No.22825 of 2022 was filed to quash the Final Findings No.15/09/2015-DGAD dated 08.07.2016 of the 2nd Respondent and the Customs Notificatio....
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....gnated authority shall reexamine and give a fresh finding as to whether cessation of anti-dumping duty would likely lead to continuation or recurrence of injury so as to warrant imposition of anti-dumping duty for a further period of five years. The final findings dated 30.07.2021* of the designated authority, therefore, stand modified to this extent. The final findings shall thereafter, be submitted to the Central Government for further action in accordance with the provisions of the Tariff Act; ii. Anti-Dumping Appeal Nos.51832 of 2021, 51833 of 2021, 51834 of 2021, 51868 of 2021, 51869 of 2021, 51872 of 2021 and 50570 of 2022 are dismissed." (* actually, 31.07.2021) 8. In W.P.No.22820 of 2022, the Petitioner has actually challenged the Final Order No. 50435 of 2021 dated 19.05.2022 in Anti Dumping Appeal No.50571 of 2022. Anti Dumping Appeal No.50571 of 2022 was filed by the Writ Petitioner against the Final Findings No.15/09/2015-DGAD dated 08.07.2016 issued by the 2nd Respondent, Designated Authority and Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016 issued by the 1st Respondent. The details of which are as follows:- S.No. Anti-Dumping Appeal No. Final ....
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....Court in paragraph 33 of the judgment rendered in Kumho Petrochemicals. The Supreme Court observed that even if the review exercise is not completed within the extended period of one year under the second proviso, the effect would be that after lapse of one year there would not be any anti-dumping duty even if the review is pending. In such a situation it is only after the review exercise is completed and the Central Government forms an opinion that cessation of such duty is likely to lead to continuation or recurrence of dumping an injury, it can issue a notification 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 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. 32. It also needs to be noted that the final findings dated 08.07.2016 of the designated authority and the consequential notification ....
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....ationale in imposing such duty. Section 9A(5) of the Customs Tariff Act, 1975 provides for review of the antidumping duty imposed. If upon review, if the Government is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, extend the period of such imposition for a further period of 5 years. In the facts of the present case, we find the appellant could not place before us any empherical evidence to counter the final findings on Sunset review by the DA. It has been clearly recorded that cessation of existing anti-dumping duty on the subject goods is likely to result in recurrence of dumping and injury to the DI. Basically, we note that the present impugned findings are in continuation of the earlier findings as it has been recorded that there is a need to continue the imposition of antidumping duty in terms of applicable legal provisions after due consideration of the economic parameters. We find no merit in the present appeal to persuade us to interfere with the impugned final findings or the customs notification issued based thereon. Accordingly, we dismiss the appeal. The stay application linked to the appeal ....
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.... Special Leave Petition. The observations are as follows: "Mr. R.N. Trivedi, learned ASG fairly admits that the five years period is already over. He states that this Special Leave Petition has become infructuous. The Special Leave Petition is dismissed as such. Question of law is left open." 37. Learned counsel for the appellant also submitted that the designated authority committed an error in recommending duties which were higher than the dumping margin determined for the foreign exporter as this would be contrary to the provisions of section 9A(1) of the Tariff Act read with rule 4 of the Anti-Dumping Rules. 38. This submission cannot be accepted. In a case where there is an affirmative order for extension of anti-dumping duty on the basis that there is a likelihood of recurrence of dumping and injury, the rigours of section 9A(1) of the Tariff Act would not be attracted. It would be competent for the designated authority to extend the period of imposition without modification of the rate of duty. This is what was observed by the Tribunal in Thai Acrylic Fibre Co. Ltd. vs. Designated Authority14 and the relevant portion of the decision is reproduced below: "14. Sunset r....
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....tification No.07/03/2021 DGTR dated 31.07.2021 of the 2nd Respondent, although by the Final Findings Notification No.07/03/2021 DGTR dated 31.07.2021, the 2nd Respondent has recommended for withdrawal of Anti Dumping Duties recommended vide Notification No.15/09/2015-DGAD dated 08.07.2021. 13. In the 2nd Sunset Review by the 2nd Respondent vide Sunset Review Notification No. 07/03/2021 dated 22.02.2021, the Product under Consideration (PUC) was 'Viscose Staple Fibre except Bamboo Fibre'. The grievance of the Petitioner is that the domestic industry had curtailed the Product under Consideration (PUC) by excluding several types of subject goods i.e., Viscose Staple Fibre (VSF). It is stated that PUC was restricted to merely a portion of VSF. However, it contended that the domestic industry relied upon certain documents which contained information for VSF as a whole. 14. Paragraph No. 5 and 6 of the 2nd Sunset Review Notification No. 07/03/2021 dated 22.02.2021 by the 2nd Respondent deals with 'Product under Consideration'. It reads as under:- Paragraph No.5 of the Notification Paragraph No.6 of the Notification The scope of the product under consideration in the....
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....et share of imports from subject countries is very low. Therefore, the imports cannot be said to be causing any price and volume effect on the domestic industry. (c) From the information available on record, it is noted that there is a likelihood of continuation of dumping from subject countries. However, the likelihood of recurrence of injury to the domestic industry is not strong enough to warrant continuation of duties beyond 11 years. There are insignificant surplus capacities with the responding producers / exporters in subject countries, which can be used to increase their exports to India in event of revocation of duty. (d) Therefore, based on objective examination of information on record, it is concluded that there is no justification for recommending continuation of anti-dumping duty in the present case. N. Recommendation 155. In view of above, the Authority considers it appropriate to recommend withdrawal of antidumping duty on import of subject goods from the subject countries recommended vide Notification No.15/09/2015-DGAD dated 8th July 2016 and enforced vide Customs Notification No.43/2016-Customs (ADD) dated 8th August 2016 which was further extended vide C....
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....rting country or territory as determined in accordance with the rules made under subsection (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either- ( a) comparable representative price of the like article when exported from the exporting country or [destined for consumption] in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6): Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transhipped through the country of export or such article is not produced in the country of export or there is no compa....
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....on 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 in fact made after the lapse of the first period." 19. The reasonings of the Delhi High Court in the aforesaid decision are in Paragraph Nos. 23, 24 and 25 of the Judgement. They read as under:- "23. The next issue is the legality of the levy pending sunset review. The second proviso to section 9A(5) is conclusive on this aspect. Whilst the need for a sunset review has been described as compelling and mandatory in a decision of this court (Indian Metal and Ferro Alloys Ltd. v. Designated Authority (2008) 224 ELT 375 (Delhi), based on the Supreme Court ruling in Reliance Industries v. Designated Authority (2006) 7 RC 579 ; (2006) 10 SCC 368, the court had this to say: "... the first proviso to section 9A(5) of the Act casts an obligation on the Central Government to ensure that for the protection of the domestic industry (for the reasons given by the Supreme Court) withdrawal of anti-dumping duty should not lead to continuation or recurrence of dumping as well injury to the domestic indust....
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....1.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. The duty may remain in force pending the outcome of such a review." It is clear that section 9A(5) has echoed articles 11.1, 11.2 and 11.3. In the context of the present discussion, it is pertinent that the implementation agreement makes the imposition of duty during pendency of sunset review discretionary ("The duty may remain in force pending the outcome of such a review."). Likewise, the second proviso to section 9A(5) states that "where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion be....
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.... is a 'temporary statute', was examined and it was observed that : "19..... A statute can be said to be either perpetual or temporary. It is perpetual when no time is fixed for its duration and such a statute remains in force until its repeal which may be express or implied. But a statute is temporary when its duration is only for a specified time and such a statute expires on the expiry of the specified time, unless it is repealed earlier. .. Admittedly, to a temporary statute, the provisions of section 6 of the General Clauses Act, 1897 will have no application. .. A temporary statute even in the absence of a saving provision like section 6 of the General Clauses Act may not be construed dead for all purposes and the effect of expiry is essentially one of the construction of the Act." 20. In an appeal filed by the Union of India against the above decision of the Division Bench of the Hon'ble Delhi High Court, the Hon'ble Supreme Court affirmed the views of the Hon'ble Delhi High Court in Union of India Vs. Kumho Petrochemicals Company Limited, 2017 (351) E.L.T. 65 (SC) with the following observations:- "18. The first proviso to Section 9-A(5) of the Act, ....
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....or a full period of five years as it can be revoked earlier. Likewise, when a review is initiated but final conclusion is not arrived at and the period of five years stipulated in the original notification expires in the meantime, as per the second proviso "the anti-dumping duty may continue to remain in force". However, it cannot be said that the duty would automatically get continued after the expiry of five years simply because review exercise is initiated before the expiry of the aforesaid period. It cannot be denied, which was not even disputed before us, that issuance of a notification is necessary for extending the period of anti-dumping 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 fortiori, 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 ....
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....on 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 the 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 the second proviso is to be treated as automatic to avoid the hiatus or vacuum in between." 21. The entire scope of challenge in these Writ Petition predominately relies on the outcome of the challenge in W.P.No.22834 of 2022, wherein the Petitioner has challenged the basis of levy of Anti-Dumping Duty on the subject product i.e., Viscose Staple Fibre exported from Indonesia in terms of the law laid down in the aforesaid decision of the Hon'ble Supreme Court. FACTUAL BACKGROUND OF THE AFORESAID IMPUGNED NOTIFICATIONS AND ORDERS OF THE TRIBUNAL:- 22. The Petitioner is an....
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....nal Order No. AD/31-51/2011-AD dated 11.08.2011 of the Appellate Tribunal, the 2nd Respondent/ Designated Authority passed a Final Order 14/6/2009-DGAD dated 10.04.2012 after post decisional hearing. In the aforesaid proceedings, the 2nd Respondent/ Designated Authority reaffirmed its earlier decision taken on 17.05.2010 vide Notification No.14/2009-DGAD. Thus, the levy of Anti-dumping Duty imposed vide Notification No.76/2010-Customs (ADD) dated 26.07.2010 was upheld and continued till 25.07.2015. 30. Three days before the expiry of the period fixed for levy of Antidumping Duty imposed on the Petitioner vide Notification No.76/2010- Customs (ADD) dated 26.07.2010, the 2nd Respondent initiated the 1st Sunset Review on 22.07.2015. 31. As per the 2nd proviso to Section 9A(5) of the Customs Tariff Act, 1975, if before the expiry of original notification for levy of Anti-Dumping Duty, the review for extending the period of levy of tax is initiated but not completed, it can be extended for a period not exceeding one year pending sunset review. This view is in consonance with the view of the Hon'ble Supreme Court in Union of India Vs. Kumho Petrochemicals Company Limited, content o....
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....0 'Viscose Staple Fibre (VSF) excluding Bamboo fibre' Indonesia Indonesia Any Combination other than at S.No.1 0.512 kilogram US Dollar 3. 5504 10 00 'Viscose Staple Fibre (VSF) excluding Bamboo fibre' Indonesia Any country other than attracting antidumping duty Any Any 0.512 kilogram US Dollar 4. 5504 10 00 'Viscose Staple Fibre (VSF) excluding Bamboo fibre' Any country other than attracting antidumping duty Indonesia Any Any 0.512 kilogram US Dollar 5. 5504 10 00 'Viscose Staple Fibre (VSF) excluding Bamboo fibre' People's Republic of China People's Republic of China Tangshan Sanyou Group Xingda Chemical Fibre Co. Ltd. Tangshan Sanyou Group Hongkong International Trade Co. Ltd. 0.180 kilogram US Dollar 6. 5504 10 00 'Viscose Staple Fibre (VSF) excluding Bamboo fibre' People's Republic of China People's Republic of China Any Combination other than at S.No.5 0.194 kilogram US Dollar 7. 5504 10 00 'Viscose Staple Fibre (VSF) excluding Bamboo fibre' People's Republic of China Any country other than attracting antidumping duty Any Any 0.194 kilogram US Dollar 8.....
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....he Viscose Staple Fibre (VSF) was not excluded. Since the investigation was not completed, the 1st Respondent in the exercise of power conferred under Section 9A(5) of the Customs Tariff Act, 1975 read with Rules 18 and 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 amended Notification No.43/2016- Customs (ADD) dated 08.08.2016 vide Notification No.39/2021-Customs (ADD) dated 30.06.2021 to levy Anti-Dumping Duty till 31st October, 2021. 42. By virtue of the aforesaid Notification, after Paragraph 2 and before the Explanation to Notification No.43/2016-Customs (ADD) dated 08.08.2016, Paragraph No.3 was inserted to read as under:- "3. Notwithstanding anything contained in paragraph 2, the antidumping duty shall remain in force up to and inclusive of the 31st October, 2021, unless revoked, superseded or amended earlier." 43. The 2nd Respondent, the Designated Authority gave its final finding in the Sunset Review for imports of Viscose Staple Fibre (VSF) originating in or exported from People's Republic of China (China PR) and Indonesia on 31.07.2021 in F.No.7/03/2021-DGTR....
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.... of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 777 (E), dated the 8th August, 2016, except as respects things done or omitted to be done before such rescission. Notification No.44/2021-Customs (ADD) dated 12.08.2021 48. Aggrieved by Notification No.44/2021-Customs (ADD) dated 12.08.2021 rescinding levy of Anti-Dumping Duty vide Notification No.43/2016-Customs (ADD) dated 08.08.2016, the 3rd Respondent namely the Association of Man-Nade Fibre Industry of India filed Appeal No.51490 of 2021 before the Appellate Tribunal under the provisions of the CEGAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996 . 49. It is in this background, the Writ Petitioner had also challenged the Final Findings No.15/09/2015-DGAD dated 08.07.2016 and Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016 before the Appellate Tribunal in Anti Dumping Appeal No.50571 of 2022 in view of the Final Order No.50427 of 2022. 50. The Appellate Tribunal vide Final Order No. 50427 of 2022, allowed the various appeals as filed by the 3rd Respondent and others arising out of Final Findings No.7/03/2021-DGTR dated 31.07.2021 and Customs Notification No.44....
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....providing an opportunity for other parties to comment, thus breaching principles of procedural fairness. It is further submitted that over multiple investigations, the PUC had been narrowed repeatedly, including the exclusion of various VSF grades, and these changes were made unilaterally by the domestic industry, violating natural justice. 58. Learned counsel for the Petitioner would further submit that the sunset review should have been conducted under Section 9A(5) of the Customs Tariff Act, 1975 and Rule 23 of the Anti-Dumping Duty (ADD) Rules. These provisions stipulate that Anti-Dumping Duties can only be extended if their cessation would lead to the continuation of dumping and injury. It is stated that Rule 23(1B) emphasizes the need for the duty and review process, ensuring input from all parties. Therefore, it is submitted the scope of the PUC should not have been altered during the review, but rather extended if necessary. 59. Learned counsel for the Petitioner submitted that there was a 11 days gap between the expiry of Anti-Dumping Duty (ADD) imposed under the original Notification No.76/2010-Customs (ADD) dated 26.07.2010 which expired on 25.07.2015, and the subseque....
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.... and that any break nullifies the authority to extend the levy. 64. The learned counsel for the Petitioner therefore contended that the Principal Bench of CESTAT, New Delhi failed to follow these binding precedents, which emphasize the importance of uninterrupted validity for any extension to be lawful. 65. Learned counsel for the Petitioner further submitted that Section 9A(5) of the Customs Tariff Act, 1975, and Rule 23 of the Customs Tariff (Identification, Assessment, and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, make it clear that reviews must be completed within specified timelines, and extensions must occur during the period of the levy's validity. Post 2021 amendment to Rule 23, it was highlighted that reviews must be concluded at least three months before the expiry of the Anti-Dumping Duty under review, thereby ensuring timely and valid extensions. 66. The Petitioner concluded that the Principal Bench of CESTAT, New Delhi erred in ignoring these statutory principles and binding precedents established by the Hon'ble Supreme Court and the Delhi High Court. By failing to adhere to judicial discipline, as emphasize....
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....espondent highlighted that the Hon'ble Supreme Court in Kumho Petrochemicals case (cited supra), acknowledged that a hiatus between Anti-Dumping Duty periods is inevitable, and such a gap does not invalidate the imposition of duties. It is further submitted that while the Hon'ble Supreme Court emphasized that while a review is pending, the duties may be extended, and any delay in completing the review does not prevent the imposition of duties once the Central Government forms an opinion. 70. The Respondents relied on Kumho Petrochemicals case (cited supra) to stress that the gap between the expiry of duties and the issuance of a fresh notification is a necessary outcome and does not imply invalidity. Furthermore, it is submitted that the Principal Bench of CESTAT, New Delhi vide Final Order dated 19.05.2022, allowed Anti-Dumping Appeal No.51490 of 2021, directing the Designated Authority (DGTR) to reexamine whether the cessation of Anti-Dumping Duties would likely lead to injury and warrant a further extension of the duties for five years, following which, the DGTR conducted oral hearings on 26.07.2022, after which written submissions were made, and additional representati....
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....uthority is constituted at another, a Writ Petition would be maintainable at both the places. 78. The Hon'ble Supreme Court observed that order of the appellate authority constitutes a part of cause of action and therefore a Writ Petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. In the present case, not only all the respondents are outside the jurisdiction of this High Court but also the Appellate Tribunal which has passed the impugned order. 79. The Court further observed that in appropriate cases, the Court may even refuse to exercise its discretionary jurisdiction by invoking the doctrine of "forum conveniens".Therefore, these Writ Petitions are liable to be dismissed also on account of the doctrine of "forum conveniens". 80. The Hon'ble Supreme Court there further observed that, "We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not b....
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....tion having a relation to the rate of duty of customs or to the value of goods for purposes of assessment. Appeal to Supreme Court: An appeal shall lie to the Supreme Court from (a) any judgment of the High Court delivered - i. in an appeal made under Section 130; or ii. on a reference made under Section 130 by the Appellate Tribunal before the 1st day of July, 2003; iii. on a reference made under Section 130A, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b)any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment. 86. A reading of Section 130E of the Customs Act, 1962 indicates that a statutory appeal is maintainable only before the Hon'ble Supreme Court against Order of the Appellate Tribunal herein, among other things, pertaining to determination of any question having a relation to the rate of duty of customs or value of the goods fo....
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....involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - a) has not been determined by the Appellate Tribunal; or b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub- section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided in accordance to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908)....
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....exercise is not completed within one year, the effect of that would be that after the lapse of one year, there would be no scope for continuing anti-dumping duty, even if the review was pending before the 2nd respondent/Designate Authority. 98. The Delhi High Court held that amendment to the parent Notification No.01/2009-Customs (ADD) dated 02.01.2009 was to be made before the said Notification ceazed to be in force. The High Court, thus, rightly observed that Notification No.01/2009-Customs (ADD) dated 02.01.2009 was in the nature of temporary legislation and could not be amended after it had lapsed. 99. The decision of the Division Bench of the Delhi High Court in M/s.Kumho Petrochemicals Company Limited's case (cited supra) was affirmed by the Hon'ble Supreme Court in Union of India Vs. M/s.Kumho Petrochemicals Company Limited, 2017 (315) ELT 65. 100. In fact in Paragraph No. 34, the Hon'ble Supreme Court observed as under:- "34. 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 subsection (5) of Section 9-A of the Act is an enabling provision. That is very c....
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....raph No.36, the Hon'ble Supreme Court in Union of India Vs. M/s.Kumho Petrochemicals Company Limited (cited supra), thus observed as under:- "36. 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 the review exercise is not completed within one year, the effect of that would be that after the lapse of one year there would not be any anti-dumping 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 the second proviso and duty period extended....
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....eased to exist. 105. There, the 1st Sunset Review of Anti-Dumping Duty was initiated only on 06.01.2014 before the Designated Authority, after Notification No.01/2009-Customs (ADD) dated 02.01.2009 lapsed on 01.01.2014. Notification No.06/2014-Customs (ADD) dated 23.01.2014 was issued thereafter. Since the 1st Sunset Review was initiated after Notification No.01/2009-Customs (ADD) dated 02.01.2009 had ceased to exist to operate from 01.01.2014, the Delhi High Court vide its order dated 11.07.2014 held that continuation of levy vide Notification No.06/2014- Customs (ADD) dated 23.01.2014 was without the authority of law. 106. The Hon'ble Supreme Court thus upheld the decision of the Delhi High Court in Union of India Vs. Kumho Petrochemicals Company Limited., 2017 (351) ELT 65. As per the ratio of the Hon'ble Supreme Court, if the Sunset Review of Anti-Dumping Duty imposed commences before the expiry of initial period of five years, pending such review, Anti- Dumping Duty can be extended for a period of one year. This is the also scheme under the Customs Tarriff Act, 1975. 107. The Notification to continue the levy beyond the initial period can be even after the expiry of the ini....
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.....07.2010 was to extend up to 25.07.2016 for a period one year from the expiry of five-year period on 25.07.2015 vide Notification No.37 of 2015 Customs (ADD) dated 06.08.2015 since sunset review had commenced on 22.07.2015. 117. Before the expiry of period one year, under Notification No.37 of 2015 Customs (ADD) dated 06.08.2015, the 2nd respondent/Designated Authority gave its final finding on Final Finding in Notification No.15/9/2015-DGAD dated 08.07.2016, pursuant to which Notification No.43/2016-Customs (ADD) dated 08.08.2016 was issued. 118. The 2nd Respondent/Designated Authority vide Final Finding in Notification No.15/9/2015-DGAD dated 08.07.2016 recommended for extending the period of levy of Anti-Dumping Duty for a period of five years. This finding was before the expiry of the extended period till 25.07.2016 under Notification No.37 of 2015 Customs (ADD) dated 06.08.2015. 119. Thus, Notification No.43/2016-Customs (ADD) dated 08.08.2016 was issued by the 1st Respondent pursuant to the Final Finding dated 08.07.2016 of the 2nd Respondent/Designated Authority vide Notification No.15/9/2015-DGAD. 120. Again there was a 2nd hiatus between 25.07.2016 and 07.08.2016 for a....
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.... 9 Notification No.39/2021 Customs (ADD) 30.06.2021 31.10.2022 10 Final Finding of the 2nd Respondent/Designated Authority vide Notification No.07/03/2021 pursuant to 2nd Sunset Review 08.08.2017 11 Notification No.44/2021 Customs (ADD) 12.08.2021 Rescinding of the Notification No.43/2015 Customs (ADD) 126. Since in the present case, the 1st Sunset Review was initiated by the 2nd Respondent/Designated Authority on 22.07.2015, 3 days before the expiry of the five year period under Notification No.76/2010-Customs (ADD) dated 26.07.2010, the levy continued vide Notification No. 37 of 2015 Customs (ADD) dated 06.08.2015 cannot be held to be contrary to the law settled by the Delhi High Court as affirmed by the Hon'ble Supreme Court in Kumho Petrochemicals Company Limited Vs. Union of India (cited supra). 127. This was on the strength of the 2nd proviso to Section 9A(5) of the Customs Tariff Act, 1975. As per Sub-Section 5 to Section 9A of the Customs Tariff Act, 1975, Anti-Dumping Duty imposed shall remain in force for a period of 5 years from the date of such imposition unless it is revoked earlier, in which case, it can cease to have effe....
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....2016 issued by the 1st Respondent was belated and long after other notifications came to be issued. 134. We find no reason to differ with the conclusion arrived in the impugned Final Order dated 19.05.2022 in Anti Dumping Appeal No.50571 of 2022. 135. The challenge was perhaps inspired from a skewed reading of the decision of the Delhi High Court in Kumho Petrochemicals Company Limited Vs. Union of India (cited supra) which was rendered on 11.07.2014 which decision stands affirmed by the Hon'ble Supreme Court in Union of India Vs. Kumho Petrochemicals Company Limited., (cited supra). As mentioned above, both decisions do not come to the aid of the petitioner. We shall explain the position in the ensuing paragraphs. 136. In the present case, the 2nd Respondent/Designated Authority had also given its Final Findings subsequently on 31.07.2021 and recommended for withdrawing Anti-Dumping Duty imposed vide Notification No.7/03/2021-DGTR dated 31.07.2021 pursuant to which Notification No. 44/2021 (ADD) dated 12.08.2021 was issued to rescinding Notification No.43/2016-Customs (ADD) dated 08.08.2016. The Petitioner itself was the appellant before the Principal Bench of CESTAT, New Delhi....
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....spondent/Designated Authority vide Notification No.07/3/2021-DGTR dated 31.07.2021 and rescinding of Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016 of the 1st Respondent vide issuance of Notification No.44/2021-Customs (ADD) dated 12.08.2021. Yet, the petitioner has filed W.P.No.22819 of 2022. 144. The stand of the Petitioner is absurd and self defeating. Therefore, W.P.No.22819 of 2022 is liable to be dismissed. 145. The challenge to the Sunset Review Initiation Notification No.07/03/2021-DGTR dated 22.02.2021 and the final finding of the 2nd Respondent/Designated Authority in Notification F.No.07/03/2021-DGTR dated 31.07.2021 cannot be countenanced as the 2nd mentioned notification itself recommends that there is no justification for recommending the continuation of Anti-Dumping Duty. 146. Therefore, the challenge to the levy under the Notification cannot be countenanced. The 1st Respondent Government in its wisdom based on the findings of the 2nd Respondent has concluded not to extend the levy and thus, issued Notification No.44/2021-Customs (ADD) dated 12.08.2021. 147. The decision to issue Notification No.44/2021-Customs (ADD) dated 12.08.2021 preceded a 2n....
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....articipated 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-dumpi....