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TMI Blog2023 (4) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... Indirect Tax Laws , the period for issue of the notification by the Central Government under the first proviso to section 9A of the Customs Tariff Act, 1975, stood extended upto 31.12.2020? HELD THAT:- Under section 6 of the 2020 Act, the time limit specified under the Tariff Act for issuance of a notification falling during the period from 20.03.2020 to 29.09.2020 shall stand extended to 30.09.2020. It is the contention of the appellant that under the first proviso to section 9A(5) of the Tariff Act, the notification for imposition of anti-dumping duty, in a review, has to be issued before the date on which the anti-dumping duty earlier imposed by a notification comes to an end. In other words, according to the appellant, there is time limit within which the notification has to be issued. Thus, section 6 of the 2020 Act would extend the time limit to 30.09.2020 since in the present case, the imposition of the anti-dumping duty by an earlier notification came to an end on 06.04.2020 and this date is between the two dates, namely 20.03.2020 and 29.09.2020. The appellant cannot be permitted to contend that in the context of the first proviso to section 9A(5) of the Tariff Act, the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2020 of the designated authority recommending continuation of definitive anti-dumping duty. 2. Two issues arise for consideration in this appeal. The first is whether the Central Government could have issued the customs notification on 09.06.2020, as the period for which the existing antidumping duty had earlier been imposed by notification dated 07.04.2015 expired on 06.04.2020. The second is whether because of the provisions of section 6 of the Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [the 2020 Relaxation Act] relating to 'Relaxation of the Time Limit under certain Indirect Tax Laws', the period for issue of the notification by the Central Government under the first proviso to section 9A of the Customs Tariff Act, 1975 [the Tariff Act], stood extended upto 31.12.2020. 3. The facts giving rise to the aforesaid issues can be summarized as follows: DATE EVENTS 12.07.2013 Anti-dumping investigation on the subject goods was initiated by the designated authority 11.01.2015 The designated authority issued the final findings recommending imposition of anti-dumping duty on the subject goods. 07.04.2015 The Central Government issued c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-dumping levy is a temporary legislation. Section 9A(5) expressly states that anti-dumping duty shall cease to have effect on the expiry of five years from the date of imposition. Section 9A(5) also acts as an enabling provision as the first proviso therein authorizes that an anti-dumping levy may be extended for a further period of five years subject to the conditions of the first proviso being fulfilled. In a situation where the review is not completed before expiry of the initial levy, the second proviso aids the Central Government to continue the initial levy up to one more year by issuing another customs notification to that effect. The Tariff Act and the 1995 Anti- Dumping Rules do not contemplate any gaps in continued protection to the domestic industry. As soon as there is a gap in the levy, the duty lapses or ceases to have effect in terms of section 9A(5). When this happens, section 9A(5) of the Tariff Act read the 1995 Anti-Dumping Rules with the provisos do not allow the Central Government to revive a lapsed or dead duty; (iv) As prescribed under the first proviso to section 9A(5), if the Central Government was of the opinion that cessation or expiry of the anti-dum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by virtue of section 6 of the 2020 Relaxation Act. 5. Shri Jitendra Singh, learned counsel for the domestic industry assisted by Shri Akshay Soni, however, refuted the contention of the appellant that the notification issued by the Central Government for imposition of anti-dumping duty pursuant to the recommendation made by the designated authority in the sunset review could not have been issued after 06.04.2020 and in this connection reliance has been placed upon the judgment of the Supreme Court in Kumho Petrochemicals and the decision of the Tribunal in PT South Pacific Viscose vs. Union of India Anti-Dumping Appeal No. 50571 of 2022 decided on 19.05.2022. Learned counsel also contended that in any case, the time limit for issuing the notification stands relaxed under section 6 of the 2020 Relaxation Act and to support this contention reliance has been placed on the decision of the Tribunal in Sadara Chemical Company vs. Union of India Anti-Dumping Appeal No. 50864 of 2021 decided on 01.11.2021. 6. Shri S. Seetharaman, learned counsel assisted by Shri Darpan Bhuyan made submissions on behalf of respondent no's. 4, 5, 6 and 7, who are the producers/exporters from the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domestic industry for initiation of sunset review investigation, issued a notification dated 09.08.2019 for initiation of the sunset review investigation to examine whether the expiry of the said duty on the import of the subject goods originating in or exported from Singapore was likely to lead to continuation or recurrence of dumping and injury to the domestic industry. It is, therefore, not in dispute that the sunset review investigation was initiated prior to the expiry of five years i.e. prior to 06.04.2020. The designated authority submitted the final findings to the Central Government on 17.03.2020, which date is also before 06.04.2020. The Central Government, thereafter, in exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Tariff Act read with rules 18 and 23 of the 1995 Rules issued a notification on 09.06.2020 for imposition of anti-dumping duty for a period of five years from the date of publication of the notification. 13. The issue that arises for consideration in this appeal is whether the Central Government could have issued a notification for imposing anti-dumping duty after 06.04.2020. 14. This submission of the learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final findings. If the final findings are in the affirmative, the designated authority shall recommend the amount of duty which, if levied, would remove the injury to the domestic industry after considering the principles laid down in Annexure III to the Rules. The final findings of the designated authority, in such a situation, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and the designated authority shall also determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation. 17. Annexure-I to the 1995, Anti-Dumping Rules deals with the principles governing the determination of normal value and export price and margin of dumping. It provides that the designated authority while determining the normal value, export price and margin of dumping shall take into account the principles contained in clauses (1) to (8) of the Annexure. 18. Annexure-II to the said Rules deals with the principles f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reason that rule 17 provides for a time period of one year to the designated authority to submit its final findings to the Central Government from the date of initiation of the investigation and thereafter, a period of three months time to the Central Government to take a decision on the recommendation made by the designated authority in the final findings. 24. The contention of the learned counsel for appellant is that since the imposition of anti-dumping duty by customs notification dated 07.04.2015 for a period of five years expired on 06.04.2020, it was not open to the Central Government to issue the notification on 09.06.2020 for imposition of anti-dumping duty under the first proviso to section 9A(5) of the Tariff Act pursuant to the final findings rendered in the sunset review by the designated authority after a gap of 62 days. According to the learned counsel for the appellant, the notification for imposition of anti-dumping duty could only have been issued by the Central Government on or before to 06.04.2020. This issue would require examination of section 9A of the Tariff Act. 25. Section 9A(1) provides that where any article is exported by an exporter or producer fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings dated 17.07.1997 of the designated authority were accepted by the Central Government and a notification 30.07.1997 was issued by the Central Government imposing anti-dumping duty for a period of five years, but before the expiry of the said period of five years a sunset review investigation was initiated. On the basis of this investigation, a notification dated October 10, 2002 was issued by the Central Government imposing anti-dumping duty till 10.12.2007. On 08.10.2007, a second sunset review investigation was initiated and this resulted in issuance of a notification 02.01.2009 by the Central Government notifying that the anti-dumping duty shall remain in force till 01.01.2014. On 31.12.2013 a third sunset review investigation was initiated. Thereafter, a notification dated 23.01.2014 was issued by the Central Government extending the validity of the earlier notification by one year up to 01.01.2015 pending the investigation, in exercise of the powers conferred under the second proviso to sub-section (5) of section 9A of the Tariff Act. It is this notification dated 23.01.2014 that was challenged by Kumho Petrochemicals by filing writ a petition. The Delhi High Court accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of the said provision itself. Sub-section (5) of Section 9A gives maximum life of five years to the imposition of anti-dumping duty by issuing a particular notification. Of course, this can be extended by issuing fresh notification. However, the words 'unless revoked earlier' in sub-section (5) clearly indicate that the period of five years can be curtailed by revoking the imposition of anti-dumping duty earlier. Of course, provision for review is there, as mentioned above, and the Central Government may extend the period if after undertaking the review it forms an opinion that continuation of such an anti-dumping duty is necessary in public interest. When such a notification is issued after review, period of imposition gets extended by another five years. That is the effect of first proviso to subsection (5) of Section 9A. However, what we intend to emphasise here is that even as per sub-section (5) it is not necessary that in all cases anti-dumping duty shall be imposed for a full period of five years as it can be revoked earlier. Likewise, when a review is initiated but final conclusion is not arrived at and the period of five years stipulated in the original notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year and till the review exercise is complete and fresh notification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between. ***** 35) With this, we advert to the second facet of the argument, namely whether it was permissible for the Central Government to issue Notification dated January 23, 2014 thereby extending the validity of duty by one year, i.e. after the period of earlier Notification came to an end on January 01, 2014? If so, whether this Notification would take effect from January 01, 2014 or January 23, 2014? 36) As noticed above, the High Court has held that once the earlier Notification by which antidumping duty was extended by five years, i.e. up to January 01, 2014, expired, the Central Government was not empowered to issue any Notification after the said date, namely, on January 23, 2014, inasmuch as there was no Notification in existence the period whereof could be extended. The High Court, in the process, has also held that the Notification extending anti-dumping duty by five years, i.e. up to January 01, 2014 was in the nature of temporary legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout a break in its existence, is necessary. The moment the levy comes to an end or there is a break in its continuance, it cannot be revived in the Sunset Review exercise. Extending the levy is like stretching the fabric of the levy to cover the extended period for another year. In the present case, the original levy came to an end on 4-5-2013. The levy had a limited life and unless fresh life was infused in it before its predetermined expiry date, it could not be deemed to have been extended. Infusion of fresh life into the levy for a period of one year requires a fresh notification, in addition to the notification for initiation of the Sunset Review. That not being so, in the present case the levy under impugned Notification is without authority, hence it has to be and is set aside." (emphasis supplied) FIRST PROVISO 30. The first proviso, however, which deals with a situation where the Central Government in a review is of the opinion that cessation of anti-dumping duty would likely lead to continuation or recurrence of dumping and injury, uses to the expression 'extend the period of such imposition', instead of the expression 'continue to remain in force' used in the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and the learned authorised representative appearing for the Central Government contended that the Central Government can issue a notification for imposition of anti-dumping duty even after the expiry of the period for which the anti-dumping duty was imposed and it is not necessary that the notification for extension of antidumping duty should be issued only during the period the duty is in existence. Learned counsel also submitted that a reading of the first proviso to section 9A(5) of the Tariff Act leaves no manner of doubt that the notification can be issued by the Central Government even after the expiry of the period of five years but in such a situation the duty so imposed would commence from the date of order of such extension and there would be a vacuum during the interregnum period. Learned counsel emphasized that there is marked difference between first and the second proviso to section 9A(5) of the Tariff Act. 35. Learned counsel for the appellant, however, placed reliance upon the judgment of the Delhi High Court in Forech India and contended that even in such a situation there would have to be a duty in existence for it to be extended. The paragraphs, on which rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween. However, in the present case, there are two breaks. Therefore, Rule 18(1) does not and cannot be read to lend any authority or power to the Central Government to issue Customs Notification No. 35/2014. It is illegal and, accordingly, set aside. The period of three months under Rule 18(1) can be read only in the case of original notification for Anti-Dumping Duty and not for the Sunset Review." (emphasis supplied) 36. When confronted with this decision of the Delhi High Court, learned counsel for the domestic industry submitted when the Supreme Court in Kumho Petrochemicals had clarified in paragraph 33 of the judgment that a notification for imposition of anti-dumping duty can be issued by the Central Government even after the expiry of the five years or the extended period of one year but with a rider that during the interregnum period there would be no duty (meaning thereby that there can be no retrospective notification), the contention advanced by learned counsel for the appellant should not be accepted. However, learned counsel for the domestic industry also submitted that even if this submission of the learned counsel for the appellant for the sake of argument is acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such action has not been made within such time, stand extended upto 30.09.2020. 40. The submission advanced by learned counsel for the domestic industry, the designated authority and the Central Government is that even if the contention of the appellant that the notification for imposition of anti-dumping duty could have been issued only on or before 06.04.2002 is accepted, then too the time limit for issuance of the notification gets extended in view of the provision of section 6 of the 2020 Act. Elaborating this submission, it was pointed out that section 6 of the 2020 Act extends the time limit specified in the Tariff Act for issuance of the notification imposing anti-dumping duty. This submission of the learned counsel for the respondent is based on the submission of learned counsel for the appellant that the notification for extension of the period of duty for a further period of five years has to be issued during life time of the existing duty. 41. Learned counsel for the appellant, however, submitted that section 6 may extend the time limit specified in the Tariff Act, which falls during the period from 20.03.2020 to 29.09.2020 clause (a) of section 6 but this would not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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