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TMI Blog2020 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Interim Order Nos. IO/AD/4-6/2020-CU(DB) in Appeal Nos. AD/52058-52060/2019 - - - Dated:- 21-2-2020 - Dilip Gupta, J. (President), Dr. D.M. Misra, Member (J) and C.L. Mahar, Member (T) For the Appellant : Jitender Singh, Akshay Soni, Rajesh Sharma, Reena Khair, Shreya Dahiya, Anushka Singh, Advocates and Jitender Singhvi, Consultant For the Respondents : Rakesh Kumar, Authorised Representative, Ameet S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Poly Film Ltd. v. Designated Authority, WP (Civil) No. 8202/2017. 4. At the outset, a preliminary objection has been raised by Ms. Reena Khair, Learned Counsel appearing for the Domestic Industry that the present appeals are not maintainable under Section 9C(1) of the Tariff Act for the reason that an appeal can be filed only against a notification to be issued by the Central Government under sub-section (1) of Section 9A of the Tariff Act, which notification has not been issued. According to the Learned Counsel, the right of appeal under Section 9C(1) of the Tariff Act is available only against an order of determination or review thereof regarding the existence, degree and effect of any dumping in relation to import of any article. 5. Shri Jitender Singh, Learned Counsel appearing for the Appellant, however, submitted that the Appeal would be maintainable under Section 9C(1) of the Tariff Act in view of the decision of the Delhi High Court in Jindal Poly Film Ltd. v. Designated Authority [2018 (362) E.L.T. 994 (Del.)]. 6. In order to appreciate the preliminary objection raised by the Learned Counsel for the Domestic Industry, it would be appropriate to state the nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 May, 2018 and the period of investigation for the purpose of review was mentioned as 1 July, 2018 to 31 December, 2018. After initiating the investigation, the Designated Authority also recommended for provisional assessment on all exports of subject goods made by the appellant till the review was completed. The Central Government, after considering the aforesaid recommendation of the Designated Authority, issued a Notification dated 25 June, 2018 that pending the outcome of the said review by the Designated Authority, the subject goods, when originating or exported from China PR by the Appellants, and imported into India shall be subjected to provisional assessment till the review was completed. It further mentioned that the provisional assessment may be subject to such security or guarantee as the proper officer of customs deems fit for payment of the deficiency, if any, in case definitive antidumping duty is imposed retrospectively, on completion of the investigation by the Designated Authority. The relevant portion of the Notification dated 25 June, 2018 is reproduced below: And whereas, M/s. Shandong Haohua Tire Co. Ltd. (Haohua) (Producer) has filed an application befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation. The final findings of the Designated Authority were notified on 2 May, 2019. 11. The contention of the Learned Counsel appearing for the Domestic Industry is that since only a recommendation was made by the Designated Authority and the Customs Notification as contemplated under [Section] 9A(1) of the Tariff Act has yet to be issued by the Central Government, it cannot be said that there is an order of determination regarding existence, degree and effect of any dumping in relation to the import of subject goods and, therefore, the appeal under the aforesaid circumstances would not be maintainable. In this connection, Learned Counsel referred to the provisions of Rule 22 of the Anti-Dumping Rules and submitted that sub-rule (2) of Rule 22 provides that the Central Government shall not levy anti-dumping duty under sub-section (1) of Section 9A of the Act, on imports from such exporters or producers during the period of review as referred to in sub-rule (1) of Rule 22. In this connection it has been submitted that all imports till the completion of review were subjected to provisional assessment by Notification dated 25 June, 2018 issued by the Central Government, but despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic producers/exporters with specific anti-dumping duty for each of the producers/exporters has been mentioned. The anti-dumping duty for the residual category has been mentioned from serial Nos. 9 to 10. The appellants were not exporting the subject goods to India during the period of investigation and, therefore, were subjected to anti-dumping duty at the rate of US Dollar 452.33 per metric ton under the residual category. It is for this reason that the appellants filed an application on 15 February, 2018 for initiation of New Shippers Review of anti-dumping duty imposed on the subject goods originating in or exported from China PR. The appellants claimed that individual dumping margin should be determined for the applicants. The relevant portion of the application filed by the applicant is as follows: The product concerned is already subject to anti-dumping duty Further, the producer or its related exporter has not exported the product to India during the original period of investigation (July 2014-June 2015) It may be recalled that the Designated Authority has recommended imposition of the anti-dumping duty on New/unused pneumatic Radial Tyres (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be appreciated. The Designated Authority did not recommend any individual dumping margin for the New Shippers since they were not entitled to individual dumping margin. The relevant portion of paragraph 36 of the order needs to be reproduced again and it is as follows: 36. The Authority holds that NSR applicants are not entitled to individual dumping margin. The Authority, therefore, recommends that the exports of the subject goods made by M/s. Shandong Haohua Tire Co. Ltd. (Haohua) (producer), M/s. Guangzhou Exceed Industries Technology Co., Ltd. (exporter) and M/s. H.K. Trade Wind Trading (exporter) from the date of initiation of the present NSR investigation may be subjected to levy of Anti-Dumping Duty as imposed earlier on the imports of the subject goods, originated in or exported from China PR vide Customs Notification No. 45/2017-Cus. (ADD) :, dated 18-9-2017. 16. This means that the relief claimed by the appellants for granting individual margin of dumping was not granted and it was specifically held that they would be subjected to levy of anti-dumping duty as imposed earlier on the subject goods in the residual category by Notification dated 18 September, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the Designated Authority holds and gives a final finding in negative i.e. no Anti-dumping duty is required to be imposed. In this eventuality, the order of the Designated Authority is final and no further examination is mandated and required Negative finding in other words is binding on the Central Government and cannot be interfered with Negative final finding order or termination order is determinative, and not a mere recommendation as in the case of positive finding proposing imposition of Antidumping duty. 35. There is, therefore, merit in the contention of the third respondent that Section 9C of the CT Act in the present case has to be interpreted in a manner so as not to frustrate its purpose he to provide appellate remedy both in cases of order of determination and review. Accordingly, it will be contrary and would be against the legislative intent to hold and interpret that there is no right to appeal under Section 9C of the CT Act, when the Designated Authority does not propose imposition of Anti dumping duty As the Central Government is bound by the final finding of the Designated Authority, the final finding of the Designated Authority becomes the final finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly contradictory. 22. The Delhi High Court in the aforesaid judgment, has distinguished the final findings of a Designated Authority when a recommendation is made for imposition of anti-dumping duty as against final findings when no anti-dumping duty is imposed. It has held that in cases the Designated Authority does not recommend for imposition of anti-dumping duty, an appeal would lie to the Tribunal. The present is a case where the Designated Authority has not made any recommendation or imposition of any definitive individual dumping margin for the three Appellants. It would clearly be a case falling in that category where the Designated Authority does not make any recommendation for imposing antidumping duty. Thus, the appeals would clearly be maintainable under Section 9C(1) of the Tariff Act. 23. Learned Counsel for the Domestic Industry has, however, laid emphasis on Rule 22(2) of the Anti-Dumping Rules and has submitted that under the main part of sub-rule (2) of Rule 22, anti-dumping duty shall not be levied on imports from such exporters during the period of review and so, if the antidumping has to be levied from the date of initiation of review, the Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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