M/s. Surabhi Enterprises Pvt. Ltd. and M/s. Sanjay Chemicals Versus Designated Authority, Directorate General of Anti-Dumping and Allied Duties Ministry of Finance and others - 2016 (9) TMI 1123 - CESTAT NEW DELHI

The Anti-Dumping duty was imposed on imports of Sodium Tripoly Phospate (STPP) originated in or exported from China PR vide Customs Notification No. 58/2011-Cus dated 8.7.2011

Thereafter, on 21.7.2011 a request came from Indian manufacturers i.e. M/s. Tata Chemical Ltd. and M/s. Rhodia Specialty Chemicals India Ltd. intimating the Designated Authority that the   production of STPP was stopped by them with effect from 1.3.2011 and the Anti-Dumping duty imposed, based upon the Final Finding of the Designated Authority may be withdrawn in the interest of larger public.

Based upon the above request of the Indian Manufacturers, the Designated Authority initiated the mid-term review on 22.9.2011 and conducted investigation. Accordingly, after notifying the known exporters or producers of the subject goods in the Subject Country and known domestic importers and after taking into consideration the entire facts and circumstances, it was concluded by the Designated Authority  that with the stoppage of production of STPP by M/s. Tata Chemicals Ltd. and M/s. Rhodia Specialty Chemicals India Ltd. and there being no other known manufacturer for the said goods, there was no justification for continuation of the Anti-Dumping duty.

Accordingly, vide his Final Finding dated 10.2.2012, he recommended withdrawal of Anti-Dumping duty, which was originally recommended by the Designated Authority vide earlier Final Finding dated 3.5.2011, on the basis of which Customs Notification No. 58/2011-Cus dated 8.7.2011 was issued.

Based upon the above recommendations of the Designated Authority, Government of India vide its notification No. 13/2012-Cus (ADD) dated 22.2.2012 rescinded the earlier notification No. 58/2011-CUs dated 8.7.2011 except as respects things done or omitted to be done before such rescission.

The Appellant is aggrieved with the said exception clause of the Notification and it is their plea that the Designated Authority should have recommended withdrawal of the Anti-Dumping duty with retrospective effect.

The appellants grievance is that such recommendations to discontinue the Anti-Dumping duty should have been with retrospective effect inasmuch as it is the Designated Authority itself, who has observed that had the Indian manufacturers informed the Designated Authority during the period of first investigations, the investigation might have been discontinued.

Tribunal observed that:-

Based upon mid term review, the Designated Authority could not have upset, its own Final Finding recorded in original investigation, inasmuch as having not put to challenge the same had attained finality. He has rightly observed that there is no provision under Rules empowering the Designated Authority to recommend discontinuation of Anti Dumping Duty with retrospective effect. In other words, Rule 14 enabling power of Designated authority to terminate the proceedings is not available for review proceedings in terms of Rule 23.

Therefore, withdrawal of anti dumping duty on Sodium Tripoly Phospate (STPP) shall have prospective effect only.

Withdrawal of anti dumping duty: Designated Authority lacks power to grant retrospective relief; rescission is prospective. Designated Authority lacks power to recommend retrospective withdrawal of an anti dumping duty following a mid term review; where domestic producers ceased production and the authority recommended rescission, the government's rescission preserved prior acts, and the tribunal held no rule permits retrospective relief in review proceedings, so withdrawal operates prospectively.