TaxTMI 
TaxTMI 
2025 (7) TMI 729
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....ssed by the Principal Bench of CESTAT, New Delhi and quash the same. 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 Findi....
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.....2022 of the Appellate Tribunal reads as under:- "89. In the result, for all the reasons stated above, i. Anti-Dumping Appeal No.51490 of 2021 is allowed to the extent that the designated 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 ....
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....imum period one year. There is no requirement under the first proviso to section 9A(5) of the Tariff Act that the Central Government should issue the notification only during the lifetime of the earlier notification imposing anti-dumping duty. This aspect was considered by the Supreme 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 p....
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....refully considered the rival submissions we note that anti-dumping duty is a trade remedy measure to counter dumping. Imposition of anti-dumping duty is authorized in terms of an international agreement under WTO. Protection of domestic industry of the Member country against unfair trade practices is the rationale 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 a....
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.... would not be necessary to examine this issue. 36. It, however, needs to be noted that the Supreme Court in Reliance Industries had examined a situation where the period stipulated for imposition of anti-dumping duty had lapsed and in view of the statement made by the learned Assistant Solicitor General of India, dismissed the 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 sec....
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....16 issued by the Central Government imposing anti-dumping duty, therefore, for all reasons stated above, fails. 41. This anti-dumping appeal is, accordingly dismissed." 12. In W.P.No.22830 of 2022, the Writ Petitioner has strangely challenged initiation of the 2nd Sunset Review by the 2nd Respondent vide Sunset Review Notification No. 07/03/2021 dated 22.02.2021 and the Final Findings Notification 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 domest....
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....ces of the domestic industry and price underselling is also negative. The profitability of the domestic industry has declined during the POI. However, profit earned by the domestic industry during POI are still reasonable. The landed price of imports during the POI is significantly higher than the cost of sales, selling price and NIP of the domestic industry. The domestic industry enjoys a dominant position in the Indian market and the market 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 n....
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....e constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) "normal value", in relation to an article, means- (i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption] in the exporting 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 (....
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.... in force up to and inclusive of the first 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 antidumping 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 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 Fe....
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....ition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately. 11.3 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 rec....
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....nti- dumping duty upon proof of injury, and upon fulfilment of other conditions. Once notified, the levy has effect - in terms of the notification and section 9A(5) for five years. That levy is consequently, temporary as the duration is finite. In these circumstances, section 6 of the General Clauses Act, which provides that notifications, bye-laws, etc., validly made under a repealed law can continue to be in force, would have no application. This position was clarified by the Supreme Court in District Mining Officer v. Tata Iron and Steel Co. [2001] AIR 2001 SC 3134, where the question as to what 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 te....
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....tailed 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 opinion that continuation of such an anti-dumping duty is necessary in public interest. When such a notification is issued after review, period of imposition gets extended by another five years. That is the effect of the first proviso to sub-section (5) of Section 9-A. However, what we intend to emphasise here is that even as per sub-section (5), it is not necessary that in all cases anti-dumping duty shall be imposed for 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 be....
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....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 antidumping 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 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 notific....
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....tervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996. 27. The Appellate Tribunal vide Final Order No. AD/31-51/2011- AD dated 11.08.2011 set aside the final finding of the 2nd Respondent/ Designated Authority recommending imposition of Definitive Anti- Dumping Duty on 17.05.2020 vide Notification No.14/2009-DGAD and directed the 2nd Respondent/ Designated Authority to grant post decisional hearing. 28. The Appellate Tribunal had further observed that if the decision of the 2nd Respondent vide Notification No.14/2009-DGAD dated 17.05.2020 is annulled, Notification No.76/2010-Customs (ADD) dated 26.07.2010 would have no legs to stand. 29. Pursuant to Final 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 be....
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....tioned therein were to continue upto 08.08.2021. The goods which were shortlisted for continuance of levy of Anti-Dumping Duties vide Notification No.43/2016-Customs (ADD) dated 08.08.2016 of the Central Government pursuant to the Final Finding of the 2nd Respondent/Designated Authority are as under:- S. No Tariff Item Description of goods Country of origin Country of export Producer Exporter Amount Unit of measurement Currency (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) 1. 5504 10 00 'Viscose Staple Fibre (VSF) excluding Bamboo fibre' Indonesia Indonesia P T South Pacific Viscose P T South Pacific Viscose 0.103 kilogram US Dollar 2. 5504 10 00 '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' ....
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....the expiry of period covered by Notification No.43/2016-Customs (ADD) dated 08.08.2016 issued by the 1st Respondent which imposed Anti-Dumping Duty for a period of five years. 39. The Injury Investigation Period and the Period of investigation are tabulated below:- Details Time period Injury Investigation Period 01.04.2017-31.03.2018, 01.04.2018-31.03.2019 and 01.04.2019-31.03.2020 Period of investigation 01.09.2019-31.10.2020. 40. By a corrigendum dated 05.03.2021 to 2nd Sunset Initiation Review Notification No.07/03/2021-DGTR dated 22.02.2021, certain products were excluded from the purview of investigation by the 2nd Respondent/Designated Authority as detailed below:- a) Bamboo Fibre b) Modal Fibre c) Non-Woven Fibre d) Flame Retardant Fibre e) Eco Fibre (Eco Vero or EV) f) Spun Dyed Fibre g) Tencel Fibre (or Lyocell) and Outlast Viscose Fibre 41. The 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 (....
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....ion dated 08.07.2016 and enforced vide Customs Notification dated 08.08.2016 and was further extended vide Notification dated 30.06.2021 till 31.10.2021 were rescinded except in respect of the things done or omitted to be done before such decision. 47. Relevant portion of the Notification No.44/2021-Customs (ADD) dated 12.08.2021 reads as under:- "G.S.R. (E).- In exercise of the powers conferred by sub-sections (1) and (5) of Section 9A of the Customs Tariff Act, 1975 (51 of 1975), the Central Government revokes the anti-dumping duty imposed on "Viscose Staple Fibre excluding Bamboo Fibre", falling under tariff item 5504 10 00 of the First Schedule to the said Act, originating in or exported from People's Republic of China and Indonesia, and imported into India and hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.43/2016-Customs (ADD) dated the 8th August, 2016, published in the Gazette 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.....
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....he appeal in Anti Dumping Appeal Nos. 50570 & 50571 of 2021 filed by the Petitioner as stated in the Table above were dismissed by the Appellate Tribunal vide the impugned Final Orders dated 19.05.2022 54. The Appellate Tribunal vide Final Order No.50435 of 2022 in Anti Dumping Appeal No.50571 of 2022 filed by the Petitioner arising out of Final Findings No.15/09/2015-DGAD dated 08.07.2016 and Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016 was dismissed. 55. It is in this background, these Writ Petitions have been filed. SUBMISSIONS MADE ON BEHALF OF THE PETITIONER:- 56. The learned counsel for the Petitioner would submit that the CESTAT erred in upholding the unilateral alteration of the 'Product under Consideration' (PUC) by the domestic industry, violating Section 2A(5) of the Customs Tariff Act, 1975 and Rule 23 of the Anti-Dumping Rules. 57. It is submitted by the learned counsel for the Petitioner that the Tribunal allowed changes to the PUC without 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 r....
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....at despite this finding, the Principal Bench of CESTAT, New Delhi surprisingly upheld the validity of the notification issued after the sunset review (SSR), extending the original levy for five years, even though there was a clear gap between the expiry of the original levy on 25.07.2015, and the issuance of the Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016. The Petitioner argued that on 08.08.2016, when Notification No.43/2016- Customs (ADD) dated 08.08.2016 sought to extend the levy for five years, there was no Anti-Dumping Duty in existence. Thus, such an extension was invalid due to the lack of continuity. 63. It was also argued by the counsel for the Petitioner that this principle has been reinforced by the Hon'ble Delhi High Court in Forech India Ltd. Vs. Designated Authority, 2018 [361] E.L.T. 671 [Del.] and affirmed in Saint Gobain India (P) Ltd. Vs. Union of India, 2019 [9] GSTR-OL 499. These judgments held that continuity in the imposition of Anti-Dumping Duty is essential 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 fai....
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.... 10.Ravishankar and Anr Vs. VIIth Additional District Judge, Bhopal., 1994 MP LJ 783. 11.Rishiroop Polymers (P) Ltd Vs. Desginated Authority., 2006 (196) ELT 185 (SC). 12.Association of Synthetic Fibre Industry Vs. J.K.Industries Ltd., 2006 (199) E.L.T. 196 (S.C.) 13.Saurahtra Chemicals Ltd Vs. UOI., 2000 (118) E.L.T. 305 (S.C.). 14.Nirma Limited Vs. Saint Gobain Glass India Ltd., 2012 (281) E.L.T. 321 (Mad) 15.Fairdeal Polychem LLP Vs. UOI., 2016 (334) E.L.T. 241 (Del). SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT:- 68. On the other hand, learned Senior Standing Counsel for the 1st Respondent would submit that Section 9A(5) of the Customs Tariff Act, 1975, provides that the Central Government may extend the period of Anti- Dumping Duties for up to five years if it believes that cessation would lead to the continuation or recurrence of dumping and injury under the first proviso, while the second proviso allows the duties to continue for up to one year during a review process. 69. In support of the above submission, the learned Senior Standing Counsel for the 1st Respondent highlighted that the Hon'ble Supreme Court in ....
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....spondent and the learned counsel for the 3rd Respondent in these Writ Petitions. 74. At the outset, we must state that we are not impressed with the submissions made on merits on behalf of the Petitioner both on merits and on the question of jurisdiction. 75. In our view, the Petitioner has resorted to forum shopping. The respective impugned Final Orders both dated 19.05.2022 in Anti-Dumping Appeal No. 51490 of 2021 filed by the 3rd Respondent and in Anti- Dumping Appeal No.50571 of 2022 filed by the Writ Petitioner were passed by the Appellate Tribunal situated at New Delhi along with other appeals as stated in Table No. 2 of this Order. 76. Therefore, the Petitioner ought to have approached the Delhi High Court for appropriate relief. Instead, the Petitioner has approached this Court even though practically there is no causal connection for the Petitioner to invoke the jurisdiction of this Court. 77. As per the decision of the Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India., 2004 (168) E.L.T. 3 (S.C.), even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a Writ....
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....stoms and valuation of goods under the Act. 85. Section 130E of the Customs Act, 1962 as it stands today and as it stood amended but is not in force read as under:- Section 130E of the Customs Act, 1962 (Act 52 of 1962) [As amended by National Tax Tribunal Act, 2005 (49/2005 dated 20.12.2005 with effect from 28.12.2005) vide S.O.1826(E) dated 28.12.2005]. Section 130E of the Customs Act, 1962 (Act 52 of 1962) prior to amendment which is still applicable. 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 before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any question havi....
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....sment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub section shall be- (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other party; (b) accompanied by a fee of two hundred rupee where such appeal is filed by the other party; in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial ques....
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....lectively as was attempted, they could result in incorrect deduction of the ratio of the court. Socrates, the great Greek Philosopher said unexamined life is not worth living. Like wise, we cannot author this decision without proper examination of facts and the case laws. Decisions without proper examination of facts and the case laws neither further cause of justice nor help the courts in settling the law in its quest for the march of law. Decisions authoured in hurry bury justice. 94. The decision of the Delhi High Court in Kumho Petrochemicals Company Limited Vs. Union of India was rendered in the context of levy of Anti-Dumping Duty vide Notification No.01/2009-Customs (ADD) dated 02.01.2009 for the period of five years up to 01.01.2014. 95. The levy under Notification No.01/2009-Customs (ADD) dated 02.01.2009 lapsed on 01.01.2014. No sunset review for continuance of the levy had commenced before the Designated Authority before Notification No.01/2009-Customs (ADD) dated 02.01.2009 lapsed on 01.01.2014. 96. There, the levy was however extended on 23.01.2014 vide Notification No.06/2014-Customs (ADD) dated 23.01.2014 although Notification No.01/2009-Customs (ADD) dated ....
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....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 subsection (5) has to be read as enabling power which gives discreti....
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....n Notification dated 2-1-2009 itself had lapsed on the expiry of five years i.e., on 1-1-2014, and was not in existence on 23-1-2014 question of amending a non-existing notification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated 2-1-2009. The High Court, thus, rightly remarked that the Notification dated 2-1-2009 was in the nature of temporary legislation and could not be amended after it lapsed." 103. The Court further held that issuance of a notification is necessary for extending the period of anti-dumping duty, However, if the review exercise is not completed within one year from the date of initiation, the effect of that would be that after the lapse of 1 year, there would not be any Anti-Dumping Duty even if the review is pending. 104. Therefore, the decision of the Delhi High Court as affirmed by the Hon'ble Supreme Court in Union of India Vs.Kumho Petrochemicals Company Limited., 2017 (315) ELT 65 cannot be interpreted to mean that the continuance of anti dumping levy whether vide Notification No.37/2015- Customs (ADD) dated 06.08.2015 and/or Notification No.43/2016-Customs (ADD) dated 08.08.2016 was....
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....stitution of India, the law declared by the Hon'ble Supreme Court is binding on all the Courts within the territory of India. It is the law of the land. There cannot be any different interpretation to 2nd proviso to Section 9A(5) of the Customs Tariff Act, 1975. 112. Thus, the Petitioner is harbouring a mistaken notion to state that the ratio of the Hon'ble Supreme Court in the above case comes to its rescue. Therefore, W.P.No.22834 of 2022 also has to fail. 113. In our view, the interpretation of the learned counsel for the Petitioner based on the decision of the Hon'ble Supreme Court in Union of India Vs. Kumho Petrochemicals Company Limited., (cited supra) is incorrect. 114. The undisputed facts of the cases is that Anti-Dumping Duty on the subject goods viz. Viscose Staple Fibre (VSF) and other goods were imposed and levied for the first time by the 1st Respondent vide Notification No.76/2010-Customs (ADD) dated 26.07.2010 for a period of 5 years. The said levy came to an end on 25.07.2015. 115. In the present case, Notification No.76/2010-Customs (ADD) dated 26.07.2010 was in the background Initiation of investigation before the 2nd Respondent/Designate....
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.... Government was justified in issuing Notification No.37/2015-Customs (ADD) dated 26.08.2015. 124. As the final finding was given by the 2nd Respondent on 08.07.2016, pursuant to which Notification No.43/2016-Customs (ADD) dated 08.08.2016 was issued cannot be questioned even as per the decision of the Hon'ble Supreme Court in M/s.Kumho Petrochemicals Company Limited's case (cited supra). 125. The following tabulation explains the position:- S. No Event Date Relevant date for period commencement of levy. Expiry date of the levy period 1 Notification for initiating investigation before the 2^nd Respondent/Designated Authority. 19.04.2009 N.A N.A 2 Final Finding of the 2^nd Respondent/Designated Authority. 17.05.2010 N.A N.A 3 Notification No.76/2010-Customs (ADD) 26.07.2010 26.07.2010 25.07.2015 4 Initiation of 1st Sunset Review by the 2nd Respondent/Designated Authority. 22.07.2015 Initiation before 25.07.2015 6 Notification No.37/2015-Customs (ADD). 06.08.2015 25.07.2015 25.07.2015 5 Final Finding of the 2nd Respondent/Designated Authority vide Notification No.15/9/2015- DGAD ....
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....continued vide Notification No.37 of 2015 Customs (ADD) dated 06.08.2015 was without the authority of law and contrary to Art.265 of the Constitution of India. 130. If the submission of the learned counsel for the Petitioner that since the initial levy of Anti Dumping Duty vide Notification No.76/2010- Customs (ADD) dated 26.07.2010 came to an end on 25.07.2015 and was continued only vide Notification No.37/2015-Customs (ADD) dated 06.08.2015 after a hiatus of 11 days, these Writ Petitions have to be accepted, it would result in absurd situation and also contrary to the scheme of the Customs Tariff Act, 1975. 131. As far as the challenge to the impugned Final Order dated 19.05.2022 passed by the Appellate Tribunal in Anti-Dumping Appeal No.50571 of 2022 impugned in W.P.No.22820 of 2022 filed by the Petitioner on merits is concerned, it was held that is hopelessly time-barred before the Appellate Tribunal. 132. The challenge in the aforesaid Anti-Dumping Appeal No.50571 of 2022 before the Appellate Tribunal which had culminated in the impugned Final Order dated 19.05.2022 impugned in W.P.No.22820 of 2022 was against the Final Findings No.15/09/2015-DGAD dated 08.07.2016 of ....
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....g Appeal No.51490 of 2022 against the second final finding of the 2nd Respondent/Designated Authority pursuant to the 2nd Sunset Review vide Notification No.7/3/2021-DGTR dated 31.07.2021 (wrongly mentioned as 30.07.2021) in Final Orders Nos.50436 to 50442 of 2022 of the Principal Bench of CESTAT, New Delhi. 140. Subsequent Notification No.43/2016 dated 08.08.2016 Customs (ADD) which was issued was pursuant to the conclusion of the 1st Sunset Review based on the Final Finding of the 2nd Respondent Designated Authority in Notification No.15/9/2015-DGAD dated 08.07.2016. 141. Thus, continuation of Anti-Dumping Duty was strictly in accordance with Paragraph No. 34 of the decision of the Hon'ble Supreme Court in UOI Vs. Kumho Petrochemicals Company Limited (cited supra), wherein it was held that 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. 142. The argument that there was a hiatus between 25.07.2015 and 06.08.2015 and therefore Notification No.37/2015-Customs (ADD) dated 06.08.201....
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.... giving the finding within the stipulated period, the question of not extending the notification for levy of Anti-Dumping Duty would not arise in terms of the decision of the Hon'ble Supreme Court in M/s.Kumho Petrochemicals Company Limited's case (cited supra), if the Sunset Review was commenced before the expiry of the Notification. 150. We find no error in the conclusion arrived in Paragraph 81 of the Impugned Order dated 19.05.2022 in Anti-Dumping Appeal No.51490 of 2021 and Anti-Dumping Appeal No.50570 of 2022 content of which has been extracted. 151. Consequently, W.P.No.22819 of 2022 is liable to be dismissed and is accordingly dismissed. 152. The challenge to the impugned Order dated 19.05.2022 passed in Anti-Dumping Appeal No.50571 of 2022, which is impugned in W.P.No.22820 of 2022. The petitioner had challenged the Final Finding of the 2nd Respondent dated 08.07.2016 recommending continuation of the definitive Anti-Dumping Duty and the consequential Notification No.43/2016-Customs (ADD) dated 08.08.2016 also cannot be countenanced in the light of decision in Tangshan Sanyou Group Hong Kong International Trade Co. Ltd Vs. Union of India,2017 (349) E.L.T. 6....