2020 (2) TMI 1431 - AT - Customs

Extension of anti-dumping duty for a period of one year pending the sunset review - gap of about 80 days between the expiry of the anti-dumping duty on 4 May, 2014 and the issue of a fresh notification on 24 July, 2014 by the Central Government imposing anti-dumping duty for a period of five years - continuation of anti-dumping duty for a period of five years pursuant to the sunset review determination - submission of Learned Counsel for the domestic industry is that such a limitation provided for continuation of anti-dumping duty would not be applicable in a case where the Designated Authority is asked to make a fresh determination on remand by the Appellate Tribunal - HELD THAT - The requirement that the Designated Authority and the Central Government should issue a notification for continuation of the anti-dumping duty during the existence of the anti-dumping duty would not be applicable where the Designated Authority has been asked to conduct a fresh determination pursuant to an order passed by the Tribunal. In Huawei Tech. Co. Ltd. v. Designated Authority 2011 (8) TMI 923 - CESTAT, NEW DELHI , the final findings of the Designated Authority as well as the consequential notification issued by the Central Government imposing anti-dumping duty were assailed. The Tribunal allowed the Appeal and remanded the matter to the Designated Authority for affording a post decisional hearing and for making such modifications in the final findings as may be considered necessary. The contention that a fresh determination cannot be made after the expiry of the time-limit was not accepted for the reason that for implementation of a decision of an Appellate Forum, the time-limit prescribed for original anti-dumping investigation will not be applicable. Application disposed off.

Summary

Issues Involved:
1. Validity of the continuation of anti-dumping duty after the expiry of the initial period.
2. Application of the Delhi High Court decision in Forech India Ltd. to the remand order by the Tribunal.
3. Powers of the Tribunal under Section 9C(3) of the Customs Tariff Act, 1975.

Issue-wise Detailed Analysis:

1. Validity of the continuation of anti-dumping duty after the expiry of the initial period:
The Designated Authority initially recommended the imposition of anti-dumping duty on "Nonyl Phenol" from Chinese Taipei, which was imposed by the Central Government on 22 August 2007. The domestic industry requested a sunset review before the expiry of five years, leading to a continuation of the duty by notification on 16 January 2014. A second sunset review was initiated on 12 June 2018, but the Designated Authority concluded on 11 January 2019 that continuation was not warranted. The Tribunal remanded the matter for fresh determination on 28 November 2019. The Deputy Director sought clarification on whether anti-dumping duty could be extended after the expiry of the period for which it was levied, referencing the Delhi High Court decision in Forech India Ltd.

2. Application of the Delhi High Court decision in Forech India Ltd. to the remand order by the Tribunal:
The Delhi High Court in Forech India Ltd. held that a notification for continuation of anti-dumping duty must be issued before the expiry of the period for which the duty was levied, and there cannot be a break in the continuation. The Court emphasized that the anti-dumping duty could not be revived once it had lapsed, and any extension must occur within the existing period of duty or the extended one-year period of sunset review.

3. Powers of the Tribunal under Section 9C(3) of the Customs Tariff Act, 1975:
Section 9C(3) empowers the Appellate Tribunal to pass such orders as it thinks fit, confirming, modifying, or annulling the order appealed against. The Supreme Court in Union of India v. Umesh Dhaimode clarified that this includes the power to remand. The Tribunal, while remanding the matter, effectively annuls the previous decision and directs a fresh determination. This power was also upheld in various cases like Pooran Mal & Sons and National Taj Traders, where it was held that the limitation period does not apply to orders passed pursuant to a remand by an appellate authority.

Conclusion:
The Tribunal clarified that the requirement for the Designated Authority and the Central Government to issue a notification for continuation of anti-dumping duty during its existence does not apply when a fresh determination is directed pursuant to an order of remand by the Tribunal. The decision of the Delhi High Court in Forech India Ltd. pertains to the original determination and not to cases involving remand by the Appellate Tribunal. Therefore, the Designated Authority can make a recommendation for the continuation of anti-dumping duty even after the expiry of the initial period, following a remand by the Tribunal. The application was disposed of with this clarification.