2022 (5) TMI 1400 - AT - Customs

Anti-dumping duty - sunset review - Expiry of old notification, extension of existing duty for further one year and rescinding of anti-duty notification on the recommendation of designated authority - case of appellant is that in the absence of any notification issued by the Central Government imposing anti-dumping duty on the basis of the recommendation made by the designated authority in the final findings dated 10.04.2012, anti-dumping duty could not have been levied - HELD THAT - In a sunset review, a notification is issued by the Central Government exercising powers under the first proviso to section 9A(5) of the Tariff Act, unlike the powers that are exercised by the Central Government under the second proviso to section 9A(5) of the Tariff Act for continuing the anti-dumping duty during the pendency of a sunset review for a maximum 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 UNION OF INDIA AND ANOTHER VERSUS M/S. KUMHO PETROCHEMICALS COMPANY LIMITED AND ANOTHER 2017 (6) TMI 526 - SUPREME COURT . 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 proviso to section 9A(5) of the Tariff Act only during the lifetime of the earlier notification imposing anti-dumping duty for a period of five years. Central Government, by a notification dated 12.08.2021, rescinded the notification dated 08.08.2016, as amended by notification dated 30.06.2021, except as respects things done or omitted to be done before such rescission. Once it has been held that anti-dumping duty was validly imposed by notification dated 08.08.2016 for a period five years upto 07.08.2021, it would not be necessary to examine this issue. The challenge to the final findings dated 08.07.2016 of the designated authority and the consequential notification dated 08.08.2016 issued by the Central Government imposing anti-dumping duty, therefore fails - anti-dumping appeal is, accordingly, dismissed.

Summary

Issues Involved:
1. Validity of the notification dated 26.07.2010 imposing anti-dumping duty.
2. Legality of the notification dated 06.08.2015 extending anti-dumping duty.
3. Validity of the notification dated 08.08.2016 imposing anti-dumping duty for five years.
4. Impact of gaps between notifications on the imposition of anti-dumping duty.
5. Whether the final findings dated 08.07.2016 and the consequential notification dated 08.08.2016 were valid.
6. Whether the imposition of duties higher than the dumping margin was permissible.

Detailed Analysis:

1. Validity of the Notification Dated 26.07.2010:
The appellant contended that the notification dated 26.07.2010 imposing anti-dumping duty for five years was impliedly quashed by the Tribunal's order dated 11.08.2011, which remanded the matter for a post-decisional hearing. The Tribunal clarified that the remand was to address the procedural issue of different designated authorities conducting hearings and issuing findings, not to quash the notification. The designated authority's confirmation of the original findings on 10.04.2012 meant no fresh notification was required, and the original notification continued to operate until 25.07.2015.

2. Legality of the Notification Dated 06.08.2015:
The appellant argued that the notification dated 06.08.2015 extending the anti-dumping duty for one year was invalid as it was issued after the expiry of the original notification on 25.07.2015. Citing the Supreme Court's decision in Kumho Petrochemicals, the Tribunal held that a notification under the second proviso to section 9A(5) of the Tariff Act must be issued during the lifetime of the original notification. Hence, the notification dated 06.08.2015 was deemed non-est in law.

3. Validity of the Notification Dated 08.08.2016:
The appellant contended that the notification dated 08.08.2016 was invalid due to a gap between the expiry of the previous notification and the issuance of the new one. The Tribunal noted that under the first proviso to section 9A(5) of the Tariff Act, there is no requirement for the Central Government to issue a notification during the lifetime of the earlier one. The Supreme Court in Kumho Petrochemicals acknowledged that a gap might exist between the expiry of one notification and the issuance of another, which does not invalidate the new notification.

4. Impact of Gaps Between Notifications:
The appellant highlighted gaps between the expiry of previous notifications and the issuance of new ones. The Tribunal, referencing the Supreme Court's interpretation in Kumho Petrochemicals, clarified that while gaps might exist, they do not invalidate subsequent notifications issued under the first proviso to section 9A(5) of the Tariff Act.

5. Validity of Final Findings Dated 08.07.2016 and Notification Dated 08.08.2016:
The appellant challenged the validity of the final findings and the consequential notification. The Tribunal upheld the findings and the notification, referencing a previous Tribunal decision in Tangshan Sanyou Group Hong Kong International Trade Co. Ltd. vs. Union of India, which dismissed a similar appeal and validated the notification dated 08.08.2016.

6. Imposition of Duties Higher Than the Dumping Margin:
The appellant argued that the duties recommended were higher than the dumping margin, contrary to section 9A(1) of the Tariff Act. The Tribunal, citing previous decisions in Thai Acrylic Fibre Co. Ltd. and Borax Morarji Limited, held that in a sunset review, the designated authority can extend the period of imposition without modifying the rate of duty, and the rigours of section 9A(1) do not apply.

Conclusion:
The Tribunal dismissed the anti-dumping appeal, upholding the final findings dated 08.07.2016 and the consequential notification dated 08.08.2016, and confirmed that the imposition of anti-dumping duty was valid. The appeal was rendered infructuous as the imposition period had expired, and the subsequent review recommended the withdrawal of the duty.