2016 (9) TMI 1123 - AT - Customs

Effect of withdrawal of Anti-Dumping Duty - Sodium Tripoly Phospate - import from China - based upon the Final Finding of the Designated Authority, notification No. 13/2012-Cus (ADD) dated 22.2.2012 rescinded the earlier notification No. 58/2011-CUs dated 8.7.2011 except as respects things done or omitted to be done before such rescission - Whether the exception clause of the notification is justified and the plea that the withdrawal of the Anti-Dumping duty would have been with retrospective effect is justified? Held that - It is only vide mid-term review that a conclusion contrary to the first Finding was arrived at and the Designated Authority has rightly observed that such conclusion would be applicable only prospectively. Such mid-term review for reviewing the changed circumstances was in terms of Rule 23 of the Anti Dumping Rules and making recommendations for withdrawing the duty. Based upon such mid term review, the Designated Authority could not have upset, its own Final Finding recorded in original investigation, in as much 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. No provisions of law found enabling the Designated Authority or empowering him to allow backdated relief in such circumstances - no justifiable reason to interfere in the Final order dated 10.2.2012 of the Designated Authority. Appeal rejected - decided against Appellant.

Summary

Issues:
Appeals against Final Finding of Designated Authority in Anti-Dumping duty investigation concerning Sodium Tripoly Phosphate (STPP) imports from China PR, withdrawal of Anti-Dumping duty with retrospective effect, Designated Authority's power to recommend retrospective withdrawal.

Analysis:
The appeals were directed against the Final Finding of the Designated Authority dated 10.2.2012 in a Mid-term Review investigation related to Anti-Dumping duty on STPP imports from China PR. The Designated Authority had recommended the imposition of Anti-Dumping duty based on an earlier Final Finding from 3.5.2011 and subsequent Customs Notification No. 58/2011-Cus dated 8.7.2011. However, after a mid-term review initiated due to the stoppage of production by Indian manufacturers, the Designated Authority recommended the withdrawal of Anti-Dumping duty as there was no justification for its continuation without any domestic industry producing the goods. The Government rescinded the earlier notification based on this recommendation.

During the proceedings, the Appellant argued that the withdrawal should have been retrospective, challenging the exception clause in the notification. However, the Tribunal noted that the facts were not in dispute, with Indian manufacturers having stopped production before the first investigation without informing the Designated Authority. The Designated Authority's observations about the lack of disclosure by the manufacturers were considered, but it was concluded that there was no provision empowering the Authority to recommend retrospective withdrawal of Anti-Dumping duty. The Designated Authority's Final Finding from the original investigation had attained finality and could not be overturned during the mid-term review, which was conducted under Rule 23 of the Anti-Dumping Rules for reviewing changed circumstances and making prospective recommendations.

The Tribunal found that the Designated Authority had acted within its powers, and there was no legal basis for retrospective withdrawal of the duty. The Designated Authority's decision to recommend discontinuation of the duty only prospectively was upheld, and the appeals were rejected. The judgment was pronounced on 1.9.16 by the Tribunal comprising Mr. Justice (Dr.) Satish Chandra, President, Mrs. Archana Wadhwa, Judicial Member, and Mr. B. Ravichandran, Technical Member.