2020 (3) TMI 529 - AT - Customs

Levy of Anti-Dumping Duty - import of consignments of Propylene Glycol from USA - N/N. 117/2009-Cus., dated 13-10-2009 extending the Notification No. 105/2004-Cus., dated 8-10-2004 - Rescinded notification - extension of rescinded notification. The appellant submits that the original Notification No. 105/2004-Cus., dated 8-10-2004 imposed an anti-dumping duty. This notification was valid for 5 years and it had expired on 8-10-2009 as provided in Section 9A(5) of the Customs Tariff Act, 1975. Only after expiry of the Notification on 13-10-2009 by Notification No. 117/2009-Cus., the Notification No. 105/2004-Cus. was extended up to 7-7-2010. She submits that once the original Notification No. 105/2004-Cus. has come to an end on expiry of 5 years the said notification cannot be extended. HELD THAT - In the identical facts and on the legal issue, the Hon ble Supreme Court in the case of UNION OF INDIA AND ANOTHER VERSUS M/S. KUMHO PETROCHEMICALS COMPANY LIMITED AND ANOTHER 2017 (6) TMI 526 - SUPREME COURT where the Hon ble Supreme Court observes that once a notification enforcing anti-dumping duty is expired and non-existent, such non-existent notification cannot be extended. In the facts of the present case, the Notification No. 105/2004-Cus., admittedly expired on 8-10-2009. Thereafter, the said notification was extended vide Notification No. 117/2009-Cus., dated 13-10-2009. Since the Notification No. 105/2004-Cus. was expired on 8-10-2009, on 13-10-2009 the Notification No. 105/2004-Cus. was not in existence. Accordingly, on 13-10-2009, it could not have been extended. Therefore, the result is that no anti-dumping duty can be levied in view of Notification No. 105/2004-Cus. which was extended vide Notification No. 117/2009-Cus. during the period after 8-9-2009. Demand not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Extension of anti-dumping duty beyond the expiry of the original notification
- Interpretation of Section 9A(5) of the Customs Tariff Act, 1975
- Validity of extending anti-dumping duty post-expiry of the original notification

Extension of anti-dumping duty beyond the expiry of the original notification:
The case involved the appellant importing two consignments of Propylene Glycol from the USA and facing a demand for Anti-dumping Duty as per Notification No. 117/2009-Cus. dated 13-10-2009, extending the Notification No. 105/2004-Cus. dated 8-10-2004. The appellant challenged the demand, arguing that the original notification expired on 8-10-2009 and could not be extended as it was no longer in force. The appellant relied on the Supreme Court judgment in Union of India v. M/s. Kumho Petrochemicals Co. Ltd. The appellant contended that the extension of the notification imposing anti-dumping duty could only be done during the recurrence of the original notification.

Interpretation of Section 9A(5) of the Customs Tariff Act, 1975:
The Ld. Counsel for the appellant argued that under Section 9A(5) of the Act, the imposition of anti-dumping duty could be extended by issuing a fresh notification, but the duty could be revoked earlier. The Central Government could extend the duty after review if it deemed necessary in public interest. The second proviso to sub-section (5) allowed the duty to remain in force even after the expiry of five years, but a notification was necessary for such extension. The High Court's interpretation emphasized that the duty could not be continued automatically after the expiry of the original notification.

Validity of extending anti-dumping duty post-expiry of the original notification:
The Hon'ble Supreme Court's judgment highlighted that once an anti-dumping duty notification expired and was non-existent, it could not be extended. In the present case, the Notification No. 105/2004-Cus. had expired on 8-10-2009, and the extension through Notification No. 117/2009-Cus. on 13-10-2009 was invalid as the original notification was not in existence. Therefore, the imposition of anti-dumping duty based on the extended notification post-expiry was deemed unsustainable. Consequently, the appeal was allowed, and the impugned order was set aside.

This detailed analysis of the judgment showcases the key issues of extension of anti-dumping duty, the interpretation of Section 9A(5) of the Customs Tariff Act, and the validity of extending the duty post-expiry of the original notification, providing a comprehensive understanding of the legal reasoning and implications involved in the case.