2020 (9) TMI 176 - AT - Customs

Imposition of ADD - determination of individual dumping margin for the appellants (exporters) in relation to anti-dumping duty imposed on new/unused Pneumatic Radial tyres subject goods originating in or exported from Peoples Republic of China China PR - Section 9C(1) of the Tariff Act - HELD THAT - Though, under the main part of sub-rule (2) of Rule 22, it is provided that the Central Government shall not levy anti-dumping duties during the period of review, but the proviso permits the Central Government to resort to provisional assessment and if the review results in determination of dumping in respect of the subject goods, it may levy duty in such cases retrospectively from the date of initiation of the review. What is, therefore, important to notice is that the review should result in a determination of dumping in respect of such products or exporters . It is only in such a case that the Central Government may levy duty retrospectively from the date of initiation of the review, for which purpose a notification has to be issued by the Central Government. In the present case, the Designated Authority did not make a recommendation for imposition of any definitive individual dumping margin. The Appellant wanted individual dumping margin but that was not accepted and the levy of duty as provided in the Notification dated 18 September, 2017 continues. Thus, it would not be necessary for the Central Government to issue a notification for levy of retrospective duty. Duty was required to be paid by the appellants under the residuary category of the notification dated 18 September, 2017 and the same duty continues. The preliminary objection raised by the Domestic Industry on the maintainability of the appeals is rejected - The appeals shall now be heard on merits on 12 March, 2020.

Issues Involved:
1. Maintainability of appeals under Section 9C(1) of the Customs Tariff Act, 1975.
2. Interpretation of the Designated Authority's recommendation and its implications.
3. Application of Rule 22 of the Customs Tariff (Identification, Assessment, and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.

Issue-wise Detailed Analysis:

1. Maintainability of Appeals under Section 9C(1) of the Customs Tariff Act, 1975:
The primary issue raised was whether the appeals filed under Section 9C(1) of the Customs Tariff Act, 1975, were maintainable. The Domestic Industry argued that the appeals were not maintainable as the Central Government had not issued a notification under sub-section (1) of Section 9A of the Tariff Act. The appellants countered this by citing the Delhi High Court's decision in Jindal Poly Film Ltd. v. Designated Authority, which held that an appeal is maintainable against the final findings of the Designated Authority even if no notification has been issued by the Central Government.

The Tribunal concluded that the appeals were maintainable under Section 9C(1) of the Tariff Act, as the Designated Authority's final findings did not recommend any individual dumping margin for the appellants. This was deemed a negative determination, making the Designated Authority's findings final and binding, thus allowing for an appeal.

2. Interpretation of the Designated Authority's Recommendation and Its Implications:
The Designated Authority's final findings, as stated in paragraphs 35 and 36, did not recommend any individual dumping margin for the New Shipper Review applicants. Instead, it recommended that the exports of the subject goods by the appellants be subjected to the anti-dumping duty as imposed earlier by Customs Notification No. 45/2017-Cust. (ADD), dated 18-9-2017.

The Tribunal noted that the relief claimed by the appellants for granting individual dumping margins was not granted, and they were subjected to the residual category duty. This interpretation aligned with the Domestic Industry's understanding, as they acknowledged that the Designated Authority refused to determine an individual dumping margin for the appellants.

3. Application of Rule 22 of the Customs Tariff (Identification, Assessment, and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995:
Rule 22(1) provides for a periodical review to determine individual margins of dumping for exporters who had not exported the product during the original investigation period. The Designated Authority initiated the New Shipper Review but did not recommend individual dumping margins for the appellants.

The Tribunal highlighted that under Rule 22(2), the Central Government shall not levy anti-dumping duty during the review period unless the review results in a determination of dumping. Since the Designated Authority did not determine any individual dumping margin, the duty imposed under the residual category of the notification dated 18 September 2017 continued to apply. Therefore, no new notification was required from the Central Government for retrospective duty imposition.

Conclusion:
The Tribunal rejected the preliminary objection raised by the Domestic Industry regarding the maintainability of the appeals. The appeals were deemed maintainable under Section 9C(1) of the Tariff Act, as the Designated Authority's final findings constituted a negative determination. The Tribunal scheduled the appeals for a hearing on merits on 12 March 2020.

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