Custom, Excise & Service Tax Tribunal
M/S Sibco Overseas Private Limited vs Kolkata-Port on 11 March, 2026
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No.76117 of 2024
(Arising out of Order-in-Appeal No.KOL/CUS(PORT)/KS/944/2023 dated 18.12.2023
passed by Commissioner of Customs (Appeals), Kolkata.)
M/s. SIBCO Overseas Pvt.Ltd.
(P-3, New C.I.T. Road, 4th Floor, Kolkata-700073.)
...Appellant
VERSUS
Commissioner of Customs (Port), Kolkata
.....Respondent
(15/1, Strand Road, Custom House, Kolkata-700001.)
APPEARANCE
Shri Anil Kumar Dugar, Advocate for the Appellant (s)
Shri Tariq Suleman, Authorized Representative for the Revenue
CORAM: HON'BLE SHRI R. MURALIDHAR, MEMBER(JUDICIAL)
HON'BLE SHRI RAJEEV TANDON, MEMBER(TECHNICAL)
FINAL ORDER NO. 75347/2026
DATE OF HEARING : 02.02.2026
DATE OF DECISION : 11.03.2026
Per : RAJEEV TANDON :
The appellant is aggrieved by the order of the Ld.Commissioner of
Customs (Appeals), Kolkata issued vide Order-in-Appeal
No.KOL/CUS(PORT)/KS/944/2023 dated 18.12.2023 and has therefore
filed the present Appeal, assailing the same.
2. Vide the impugned order the learned first appellate authority had
held as under :-
"Under the above facts and circumstances, I am of the opinion
that the lower authority has rightly finalized the impugned EDI Bill of
Entry incorporating the Notification No.82/2011-Customs dated
25.08.2011 for realization of applicable anti-dumping duty amounting
to Rs.8,77,199/- along with applicable interest thereon."
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Customs Appeal No.76117 of 2024
3. The short question, that therefore arises for consideration in the
present Appeal relates to the levy of Anti-dumping Duty as upheld by
the appellate authority and fastened upon the appellant-importer, while
finalizing the Bill of Entry No.3702906 dated 04.06.2011 for import of
PVC Flex Banner (CTH-39204900). The same was sought to be levied
while assessing the imported goods, in terms of the provisions of
Section 18(2) of the Customs Act, 19621. The Revenue took recourse to
Notification No.82/2011-CUS dated 25.08.2011, towards realization of
Anti-dumping Duty (ADD) for an amount of Rs.8,77,199/- (Rupees
Eight Lakh Seventy Seven Thousand One Hundred and Ninty Nine). The
learned assessing authority also sought to recover interest amount of
Rs.6,17,299/- (Rupees Six Lakh Seventeen Thousand Two Hundred and
Ninty Nine) in terms of provisions of Section 18(3) of the Act1.
4. The facts of the case are that the appellant had imported PVC
Flex Banner from China vide the aforesaid Bill of Entry dated
04.06.2011. While allowing clearance of the said goods, the authorities
resorted to provisional assessment under Section 18(1) of the Act. The
appellant submits that on the day of import (i.e. 04.06.2011) no Anti-
dumping Duty was in force. Notification No.79/2010-CUS dated
30.07.2010, issued in terms of Section 9A(2) of the Customs Tariff Act2
had however imposed provisional Anti-dumping Duty (ADD) on the
1
The Act
2
Tariff Act
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Customs Appeal No.76117 of 2024
subject imported goods. This provisional ADD imposed was effective
upto 29.01.2011 which however expired thereafter, in terms of Clause
2 of the Notification itself. It is therefore the case of the Appellant that
at the time of import, i.e. on 04.06.2011, there existed no live
Notification levying ADD on the subject goods as no ADD Notification
was operative at the time of import. They submit that the Customs
Notification No.82/2011-CUS dated 25.08.2011 issued in terms of
Section 9A(1) of the Customs Tariff Act, 1975, read with Sub-section 5
of the said Section 9A of the Tariff Act and Rules 18 and 20 of the
Customs Tariff (Identification, Assessment and Collection of Anti-
dumping Duty on Dumped Articles and For Determination of Injury)
Rules, 19953, was however issued subsequently, i.e. about more than
two months after the goods were imported, levying ADD for a period of
five years from the date of imposition of provisional anti-dumping duty,
pursuant to the final findings of the Designated Authority published vide
Notification No.14/04/201-DGAD dated 29.07.2011. The appellant has
submitted before us that this Notification No.82/2011-CUS dated
25.08.2011 though levying retrospectively ADD, commonly understood
as definitive anti-dumping duty, for a period of five years from the date
of imposition of provisional duty (i.e. 30.07.2010), was issued nearly
three months beyond the date of the subject imports.
5. The appellant has inter alia also submitted that though the goods
were provisionally assessed and released against a PD bond and bank
3
The Anti-dumping Duty Rules
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Customs Appeal No.76117 of 2024
guarantee at the time of their import, the department finalized the said
provisional assessment only on 18.11.2022 i.e. after more than ten
years of the clearance of the imported goods. This as per the learned
Counsel was in utter disregard of timelines specified in Regulation 5 of
Customs (Provisional Assessment) Regulations, 20184. We note that it
is only at the time of final assessment that the said retrospectively
imposed ADD, amounting to Rs.8,77,199/- along with leviable interest
was determined by the authorities and charged to the importers.
6. The foremost question that would therefore arise for
consideration in the matter would accordingly be whether there existed
any charge of Anti-dumping Duty leviable at the material time i.e. to
say whether ADD could be levied on imports of PVC Flex Banner made
during the interregnum or the gap period i.e. from 30.01.2011 - (a
date after the lapse of the provisional ADD) to 24.08.2011 (a date prior
to the issuance of Notification, retrospectively levying definitive ADD for
a period of five years on the subject goods).
7. As a sequel to the above question for determination would also
arise the need for examination of the law point as to whether the said
ADD was still leviable on subject imports, as the said imports were
cleared on a provisional basis at the time of import and the Bill of Entry
for import thereof was pending finalization when the final notification
for levy of ADD Notification No.82/2011 dated 25.08.2011 was
4
The Regulations
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Customs Appeal No.76117 of 2024
promulgated levying the said ADD retrospectively, for a period of five
years, as Clause (4) of Notification Cus-82/2011 dated 25.08.2011,
levying the said ADD however read as: ‖The anti-dumping duty
imposed should be levied for a period of five years (unless revoked,
superseded or amended earlier) from the date of the imposition of
provisional duty, that is, the 30th July 2010 .......................".
8. Before we go any further, it would be apt to place on record and
enumerate below the legal provisions relevant to the case. :-
(i) Customs Act, 1962
SECTION 18. Provisional assessment of duty. -- [(1) Notwithstanding
anything contained in this Act but without prejudice to the provisions of
section 46 [and section 50], --
(a) where the importer or exporter is unable to make self-assessment
under sub-section (1) of section 17 and makes a request in writing to the
proper officer for assessment; or
(b) where the proper officer deems it necessary to subject any imported
goods or export goods to any chemical or other test; or
(c) where the importer or exporter has produced all the necessary
documents and furnished full information but the proper officer deems it
necessary to make further enquiry; or
(d) where necessary documents have not been produced or information
has not been furnished and the proper officer deems it necessary to make
further enquiry,
[the proper officer may assess the duty leviable on such goods,
provisionally,] if the importer or the exporter, as the case may be, furnishes
such security as the proper officer deems fit for the payment of the
deficiency, if any, between the duty as may be finally assessed or re-
assessed as the case may be, and the duty provisionally assessed.]
[(1A) Where, pursuant to the provisional assessment under sub-section (1),
if any document or information is required by the proper officer for final
assessment, the importer or exporter, as the case may be, shall submit such
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Customs Appeal No.76117 of 2024
document or information within such time, and the proper officer shall
finalise the provisional assessment [in such manner], as may be prescribed.]
[(1B) The proper officer shall finalise the duty provisionally assessed, within
two years from the date of such assessment under sub-section (1) :
Provided that the Principal Commissioner of Customs or the Commissioner
of Customs may, on sufficient cause being shown and for reasons to be
recorded in writing, extend the said period to a further period of one year :
Provided further that in respect of any provisional assessment pending
under sub-section (1) as on the date on which the Finance Bill, 2025 receives
the assent of the President, the said period of two years shall be reckoned
from the date on which the said Finance Bill receives the assent of the
President.
(1C) Where the proper officer is unable to assess the duty finally within the
time specified under sub-section (1B) for the reason that --
(a) an information is being sought from an authority outside India through
a legal process; or
(b) an appeal in a similar matter of the same person or any other person
is pending before the Appellate Tribunal or the High Court or the Supreme
Court; or
(c) an interim order of stay has been issued by the Appellate Tribunal or
the High Court or the Supreme Court; or
(d) the Board has, in a similar matter, issued specific direction or order to
keep such matter pending; or
(e) the importer or exporter has a pending application before the
Settlement Commission or the Interim Board,
the proper officer shall inform the importer or exporter concerned, the reason
for non-finalisation of the provisional assessment and in such case, the time
specified in sub-section (1B) shall apply not from the date of the provisional
assessment but from the date when such reason ceases to exist.]
(2) When the duty leviable on such goods is assessed finally [or re-assessed
by the proper officer] in accordance with the provisions of this Act, then -
(a) in the case of goods cleared for home consumption or exportation, the
amount paid shall be adjusted against the duty [finally assessed or re-
assessed, as the case may be,] and if the amount so paid falls short of, or is
in excess of [the duty [finally assessed or re-assessed, as the case may
be,]], the importer or the exporter of the goods shall pay the deficiency or be
entitled to a refund, as the case may be;
(b) in the case of warehoused goods, the proper officer may, where the
duty [finally assessed or re-assessed, as the case may be,] is in excess of
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Customs Appeal No.76117 of 2024
the duty provisionally assessed, require the importer to execute a bond,
binding himself in a sum equal to twice the amount of the excess duty.
[(3) The importer or exporter shall be liable to pay interest, on any amount
payable to the Central Government, consequent to the final assessment
order [or re-assessment order] under sub-section (2), at the rate fixed by
the Central Government under section [28AA] from the first day of the
month in which the duty is provisionally assessed till the date of payment
thereof.
(4) Subject to sub-section (5), if any refundable amount referred to in
clause (a) of sub-section (2) is not refunded under that sub-section within
three months from the date of assessment of duty finally, [or re-assessment
of duty, as the case may be,] there shall be paid an interest on such
unrefunded amount at such rate fixed by the Central Government under
section 27A till the date of refund of such amount.
(5) The amount of duty refundable under sub-section (2) and the interest
under sub-section (4), if any, shall, instead of being credited to the Fund, be
paid to the importer or the exporter, as the case may be, if such amount is
relatable to -
(a) the duty and interest, if any, paid on such duty paid by the importer,
or the exporter, as the case may be, if he had not passed on the incidence of
such duty and interest, if any, paid on such duty to any other person;
(b) the duty and interest, if any, paid on such duty on imports made by an
individual for his personal use;
(c) the duty and interest, if any, paid on such duty borne by the buyer, if
he had not passed on the incidence of such duty and interest, if any, paid on
such duty to any other person;
(d) the export duty as specified in section 26;
(e) drawback of duty payable under sections 74 and 75.]
(ii) Customs Tariff Act, 1975
(1) SECTION 9A. Anti-dumping duty on dumped articles. -- (1)
Where [any article is exported by an exporter or producer] from any country
or territory (hereinafter in this section referred to as the exporting country or
territory) to India at less than its normal value, then, upon the importation of
such article into India, the Central Government may, by notification in the
Official Gazette, impose an anti-dumping duty not exceeding the margin of
dumping in relation to such article.
Explanation. For the purposes - of this section, -
(a)―margin of dumping‖, in relation to an article, means the difference
between its export price and its normal value;
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Customs Appeal No.76117 of 2024
―export price‖, in (b) relation to an article, means the price of the article
exported from the exporting country or territory and in cases where there is
no export price or where the export price is unreliable because of association
or a compensatory arrangement between the exporter and the importer or a
third party, the export price may be construct-ed on the basis of the price at
which the imported articles are first resold to an independent buyer or if the
article is not resold to an independent buyer, or not resold in the condition as
imported, on such reasonable basis as may be determined in accordance with
the rules made under sub-section (6);
(c)―normal value‖, in relation to an article, means -
(i) the comparable price, in the ordinary course of trade, for the like
article when [destined for consumption] in the exporting country or territory
as determined in accordance with the rules made under sub-section (6); or
(ii) when there are no sales of the like article in the ordinary course of
trade in the domestic market of the exporting country or territory, or when
because of the particular market situation or low volume of the sales in the
domestic market of the exporting country or territory, such sales do not
permit a proper comparison, the normal value shall be either -
(a) comparable representative price of the like article when exported from
the exporting country or [territory to] an appropriate third country as
determined in accordance with the rules made under sub-section (6); or
(b) the cost of production of the said article in the country of origin along
with reasonable addition for administrative, selling and general costs, and for
profits, as determined in accordance with the rules made under sub-section
(6) :
Provided that in the case of import of the article from a country other than
the country of origin and where the article has been merely transhipped
through the country of export or such article is not produced in the country
of export or there is no comparable price in the country of export, the normal
value shall be determined with reference to its price in the country of origin.
[(1A) Where the Central Government, on such inquiry as it may consider
necessary, is of the opinion that circumvention of anti-dumping duty imposed
under sub-section (1) has taken place, either by altering the description or
name or composition of the article subject to such anti-dumping duty or by
import of such article in an unassembled or disassembled form or by
changing the country of its origin or export or in any other manner, whereby
the anti-dumping duty so imposed is rendered ineffective, it may extend the
anti-dumping duty to such article or an article originating in or exported from
such country, as the case may be [, from such date, not earlier than the date
of initiation of the inquiry, as the Central Government may, by notification in
the Official Gazette, specify].]
[(1B) Where the Central Government, on such inquiry as it may consider
necessary, is of the opinion that absorption of anti-dumping duty imposed under
sub-section (1) has taken place whereby the anti-dumping duty so imposed is
rendered ineffective, it may modify such duty to counter the effect of such
absorption, from such date, not earlier than the date of initiation of the inquiry,
as the Central Government may, by notification in the Official Gazette, specify.
Explanation. -- For the purposes of this sub-section, ―absorption of anti-
dumping duty‖ is said to have taken place,--
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Customs Appeal No.76117 of 2024
(a) if there is a decrease in the export price of an article without any
commensurate change in the cost of production of such article or
export price of such article to countries other than India or resale
price in India of such article imported from the exporting country or
territory; or
(b) under such other circumstances as may be provided by rules.]
(2) The Central Government may, pending the determination in
accordance with the provisions of this section and the rules made thereunder
of the normal value and the margin of dumping in relation to any article,
impose on the importation of such article into India an anti-dumping duty on
the basis of a provisional estimate of such value and margin and if such anti-
dumping duty exceeds the margin as so determined :-
(a) the Central Government shall, having regard to such determination
and as soon as may be after such determination, reduce such anti-dumping
duty; and
(b) refund shall be made of so muc h of the anti-dumping duty which has
been collected as is in excess of the anti-dumping duty as so reduced.
[(2A) Notwithstanding anything contained in sub-section (1) and sub-
section (2), a notification issued under sub-section (1) or any anti-dumping
duty imposed under sub-section (2) shall not apply to articles imported by a
hundred per cent. export-oriented undertaking or a unit in a special
economic zone, unless,--
(i) it is specifically made applicable in such notification or to such
undertaking or unit; or
(ii) such article is either cleared as such into the domestic tariff area or
used in the manufacture of any goods that are cleared into the domestic
tariff area, in which case, anti-dumping duty shall be imposed on that portion
of the article so cleared or used, as was applicable when it was imported into
India.
Explanation. -- For the purposes of this section,--
(a) the expression ―hundred per cent export-oriented undertaking‖
shall have the same meaning as assigned to it in clause (i) of
Explanation 2 to sub-section (1) of section 3 of the Central Excise
Act, 1944 (1 of 1944);
(b) the expression ―special economic zone‖ shall have the same
meaning as assigned to it in clause (za) of section 2 of the Special
Economic Zones Act, 2005 (28 of 2005).]
(3) If the Central Government, in respect of the dumped article under
inquiry, is of the opinion that -
(i) there is a history of dumping which caused injury or that the importer
was, or should have been, aware that the exporter practices dumping and
that such dumping would cause injury; and
(ii) the injury is caused by massive dumping of an article imported in a
relatively short time which in the light of the timing and the volume of
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imported article dumped and other circumstances is likely to seriously
undermine the remedial effect of the anti-dumping duty liable to be levied,
the Central Government may, by notification in the Official Gazette, levy anti-
dumping duty retrospectively from a date prior to the date of imposition of
anti-dumping duty under sub-section (2) but not beyond ninety days from
the date of notification under that sub-section, and notwithstanding anything
contained in any law for the time being in force, such duty shall be payable
at such rate and from such date as may be specified in the notification.
(4)The anti-dumping duty chargeable under this section shall be in addition
to any other duty imposed under this Act or any other law for the time being
in force.
(5)The anti-dumping duty imposed under this section shall, unless revoked
earlier, cease to have effect on the expiry of five years from the date of such
imposition :
Provided that if the Central Government, [on consideration of a review], is
of the opinion that the cessation of such duty is likely to lead to continuation
or recurrence of dumping and injury, it may, from time to time, extend the
period of such imposition for a further period [upto five years] and such
further period shall commence from the date of order of such extension :
Provided further that where a review initiated before the expiry of the
aforesaid period of five years has not come to a conclusion before such
expiry, the anti-dumping duty may continue to remain in force pending the
outcome of such a review for a further period not exceeding one year:
[Provided also that if the said duty is revoked temporarily, the period of
such revocation shall not exceed one year at a time.]
(6) The margin of dumping as referred to in sub-section (1) or sub-section
(2) shall, from time to time, be ascertained [* * *] by the
Central Government, after such inquiry as it may consider necessary and the
Central Government may, by notification in the Official Gazette, make rules
for the purposes of this section, and without prejudice to the generality of
the foregoing, such rules may provide for the manner in which articles liable
for any anti-dumping duty under this section may be identified, and for the
manner in which the export price and the normal value of, and the margin of
dumping in relation to, such articles may be determined and for the
assessment and collection of such anti-dumping duty.
[(6A) The margin of dumping in relation to an article, exported by an
exporter or producer, under inquiry under sub-section (6) shall be
determined on the basis of records concerning normal value and export price
maintained, and information provided, by such exporter or producer :
Provided that where an exporter or producer fails to provide such records or
information, the margin of dumping for such exporter or producer shall be
determined on the basis of facts available.]
(7) Every notification issued under this section shall, as soon as may be
after it is issued, be laid before each House of Parliament.
[(8) The provisions of the Customs Act, 1962 (52 of 1962) and all rules and
regulations made thereuner, including but not limited to those relating to the
date for determination of rate of duty, assessment, non-levy, short-levy,
refunds, exemptions, interest, recovery, appeals, offences and penalties
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shall, as far as may be, apply to the duty chargeable under this section as
they apply in relation to duties leviable under that Act or all rules or
regulations made thereunder, as the case may be.]
(2) SECTION 9C. Appeal. - 2[1] An appeal against the order of
determination or review thereof shall lie to the Customs, Excise and Service
Tax Appellate Tribunal constituted under section 129 of the Customs Act,
1962 (52 of 1962) (hereinafter referred to as the Appellate Tribunal), in
respect of the existence, degree and effect of -
(i) any subsidy or dumping in relation to import of any article; or
(ii) import of any article into India in such increased quantities and
under such condition so as to cause or threatening to cause serious
injury to domestic industry requiring imposition of safeguard duty in
relation to import of that article.]
1
(1A) An appeal under sub-section (1) shall be accompanied by a fee of
fifteen thousand rupees.
(1B) Every application made before the Appellate Tribunal, -
(a) in an appeal under sub-section (1), for grant of stay or for
rectification of mistake or for any other purpose; or
(b) for restoration of an appeal or an application, shall be
accompanied by a fee of five hundred rupees.]
(2) Every appeal under this section shall be filed within ninety days of the
date of order under appeal:
Provided that the Appellate Tribunal may entertain any appeal after the
expiry of the said period of ninety days, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal in time.
(3) The Appellate Tribunal may, after giving the parties to the appeal, an
opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or annulling the order appealed agsint.
(4) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of
the Customs Act, 1962 (52 of 1962) shall apply to the Appellate Tribunal in
the discharge of its functions under this Act as they apply to it in the
discharge of its functions under the Customs Act, 1962 (52 of 1962).
(5) Every appeal under sub-section (1) shall be heard by a Special Bench
constituted by the President of the Appellate Tribunal for hearing such
appeals and such Bench shall consist of the President and not less than two
members and shall include one judicial member and one technical member.]
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(iii) CUSTOMS TARIFF (IDENTIFICATION, ASSESSMENT AND
COLLECTION OF ANTI-DUMPING DUTY ON DUMPED ARTICLES AND
FOR DETERMINATION OF INJURY) RULES, 1995
[Notification No. 2/95-Cus. (N.T.), dated 1st January, 1995 as amended by
Notifications No. 44/99-Cus.(N.T.), dated 15-7-1999; No. 28/2001-Cus.
(N.T.), dated 13-5-2001; No. 1/2002-Cus. (N.T.), dated 4-1-2002; No.
101/2003-Cus. (N.T.), dated 10-11-2003; No. 18/2010-Cus. (N.T.), dated
27-2-2010; No. 15/2011-Cus. (N.T.), dated 1-3-2011; No. 86/2011-Cus.
(N.T.), dated 1-12-2011; No. 6/2012-Cus. (N.T.), dated 19-1-2012; No.
9/2020-Cus. (N.T.), dated 2-2-2020; No. 10/2021-Cus. (N.T.), dated 1-2-
2021 and No. 84/2021-Cus. (N.T.), dated 27-10-2021.]
In exercise of the powers conferred by sub-section (6) of section 9A and sub-
section (2) of section 9B of the Customs Tariff Act, 1975 (51 of 1975) and in
supersession of the Customs Tariff (Identification, Assessment and Collection
of Duty or Additional Duty on Dumped Articles and for Determination of
Injury) Rules, 1985, except as respect things done or omitted to be done
before such supersession, the Central Government hereby makes the
following rules, namely :-
RULE 1. Short title and commencement. - (1) These rules may be called
the Customs Tariff (Identification, Assessment and Collection of Anti-
dumping Duty on Dumped Articles and for Determination of Injury) Rules,
1995.
(2) They shall come into force on the 1st day of January, 1995
.
.......................
RULE [4. Duties of the designated authority. - It shall be the duty of the designated authority, in accordance with these rules, -
(a) to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article;
(b) to identify the article liable for anti-dumping duty;
(c) to submit its findings, provisional or otherwise to the Central Government as to -
(i) normal value, export price and the margin of dumping in relation to the article under investigation; and
(ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries;
(d) to recommend to the Central Government -
(i) the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, after considering the principles laid down in the Annexure III to these rules; and
(ii) the date of commencement of such duty;
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(e) to review the need for continuance of anti-dumping duty.] RULE 5. Initiation of investigation. - (1) Except as provided in sub-rule (4), the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry. (2) An application under sub-rule (1) shall be in the form as may be specified by the designated authority and the application shall be supported by evidence of -
(a) dumping,
(b) injury, where applicable, and
(c) where applicable, a causal link between such dumped imports and alleged injury.
(3) The designated authority shall not initiate an investigation pursuant to an application made under sub-rule (1) unless -
(a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry :
Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the like article by the domestic industry, and
(b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding -
(i) dumping,
(ii) injury, where applicable; and
(iii) where applicable, a causal link between such dumped imports and the alleged injury, to justify the initiation of an investigation.
Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application.
[(3A) The period of investigation shall, -
(i) not be more than six months old as on the date of initiation of investigation;
(ii) be for a period of twelve months normally and for reasons to be recorded in writing, the designated authority may 14 Customs Appeal No.76117 of 2024 consider a minimum of six months or maximum of eighteen months.] (4) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo motu if it is satisfied from the information received from the [Principal Commissioner of Customs or Commissioner of Customs, as the case may be,] appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause
(b) of sub-rule (3).
(5) The designated authority shall notify the government of the exporting country before proceeding to initiate an investigation. ...............................
RULE 11. Determination of injury. - (1) In the case of imports from specified countries, the designated authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India.
(2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules. (3) The designated authority may, in exceptional cases, give a finding as to the existence of injury even where a substantial portion of the domestic industry is not injured, if -
(i) there is a concentration of dumped imports into an isolated market, and
(ii) the dumped articles are causing injury to the producers of all or almost all of the production within such market.
RULE 12. Preliminary findings. - (1) The designated authority shall proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, record a preliminary finding regarding export price, normal value and margin of dumping, and in respect of imports from specified countries, it shall also record a further finding regarding injury to the domestic industry and such finding shall contain sufficiently detailed information for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. It will also contain :-
(i) the names of the suppliers, or when this is impracticable, the supplying countries involved;
(ii) a description of the article which is sufficient for customs purposes;
(iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value;15
Customs Appeal No.76117 of 2024
(iv) considerations relevant to the injury determination; and
(v) the main reasons leading to the determination. (2) The designated authority shall issue a public notice recording its preliminary findings.
RULE 13. Levy of provisional duty. - The Central Government may, on the basis of the preliminary findings recorded by the designated authority, impose a provisional duty not exceeding the margin of dumping :
Provided that no such duty shall be imposed before the expiry of sixty days from the date of the public notice issued by the designated authority regarding its decision to initiate investigations :
Provided further that such duty shall remain in force only for a period not exceeding six months which may upon request of the exporters representing a significant percentage of the trade involved be extended by the Central Government to nine months.
RULE 14. Termination of investigation. - The designated authority shall, by issue of a public notice, terminate an investigation immediately if -
(a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated;
(b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify the continuation of the investigation;
(c) it determines that the margin of dumping is less than two per cent of the export price;
(d) it determines that the volume of the dumped imports, actual or potential, from a particular country accounts for less than three per cent of the imports of the like product, unless, the countries which individually account for less than three per cent of the imports of the like product, collectively account for more than seven per cent of the import of the like product; or
(e) it determines that the injury, where applicable, is negligible.
RULE 15. Suspension or termination of investigation on price undertaking. - (1) The designated authority may suspend or terminate an investigation if the exporter of the article in question, -
(i) furnishes an undertaking in writing to the designated authority to revise the prices so that no exports of the said article are made to India at dumped prices, or
(ii) in the case of imports from specified countries undertake to revise the prices so that injurious effect of dumping is eliminated and the designated authority is satisfied that the injurious effect of the dumping is eliminated :
Provided further that the designated authority shall complete the investigation and record its finding, if the exporter so desires, or it so decides.
(2) No undertaking as regards price increase under clause (ii) of the sub-rule (1) shall be accepted from any exporter unless the designated authority had made preliminary determination of dumping and the injury.16
Customs Appeal No.76117 of 2024 (3) The designated authority may, also not accept undertakings offered by any exporter, if it considers that acceptance of such undertaking is impractical or is unacceptable for any other reason. (4) The designated authority shall intimate the acceptance of an undertaking and suspension or termination of investigation to the Central Government and also issue a public notice in this regard. The public notice shall, contain inter alia, the non-confidential part of the undertaking. (5) In cases where an undertaking has been accepted by the designated authority the Central Government may not impose a duty under sub-section (2) of section 9A of the Act for such period the undertaking acceptable to the designated authority remains valid.
(6) Where the designated authority has accepted any undertaking under sub-rule (1), it may require the exporter from whom such undertaking has been accepted to provide from time to time information relevant to the fulfilment of the undertaking and to permit verification of relevant data :
[Provided that in case of any violation of an undertaking, the designated authority shall, as soon as may be possible, inform the Central Government of the violation of the undertaking and recommend imposition of provisional duty from the date of such violation in accordance with the provisions of these rules.] (7) The designated authority shall, suo motu or on the basis of any request received from exporters or importers of the article in question or any other interested party, review from time to time the need for the continuance of any undertaking given earlier.
RULE 16. Disclosure of information. - The designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision. RULE 17. Final findings. - (1) The designated authority shall, within one year 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 finding -
(a) as to, - (i) the export price, normal value and the margin of dumping of the said article;
(ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India;
(iii) a causal link, where applicable, between the dumped imports and injury;
(iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy :
Provided that the Central Government may, [in its discretion in special circumstances] extend further the aforesaid period of one year by six months :
Provided further that in those cases where the designated authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year, 17 Customs Appeal No.76117 of 2024 [(b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry [after considering the principles laid down in the Annexure III to these rules]].
(2) The final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information regarding -
(i) the names of the suppliers, or when this is impracticable, the supplying countries involved;
(ii) a description of the product which is sufficient for customs purposes;
(iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value;
(iv) considerations relevant to the injury determination; and
(v) the main reasons leading to the determination.
(3) The designated authority shall determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation :
Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated, and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned :
Provided further that the designated authority shall, determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings.
RULE 18. Levy of duty. - (1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17.
[* * * * *]
(2) In cases where the designated authority has selected percentage of the volume of the exports from a particular country, as referred to sub-rule (3) of rule 17, any anti-dumping duty applied to imports from exporters or producers not included in the examination shall not exceed - 18
Customs Appeal No.76117 of 2024
(i) the weighted average margin of dumping established with respect to the selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is calculated on the basis of a prospective normal value, the difference between the weighted average normal value of the selected exporters or producers and the export prices of exporters or producers not individually examined :
Provided that the Central Government shall disregard for the purpose of this sub-rule any zero margin, margins which are less than 2 per cent expressed as the percentage of export price and margins established in the circumstances detailed in sub-rule (8) of rule 6. The Central Government shall apply individual duties to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation as referred to in the second proviso to sub-rule (3) of rule 17.
(3) Notwithstanding anything contained in sub-rule (1), where a domestic industry has been interpreted according to the proviso to sub-clause (b) of rule 2, a duty shall be levied only after the exporters have been given opportunity to cease exporting at dumped prices to the area concerned or otherwise give an undertaking pursuant to rule 15 and such undertaking has not been promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question. (4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the investigation was initiated, the Central Government shall, within forty-five days of the publication of final findings by the designated authority under rule 17, withdraw the provisional duty imposed, if any.
RULE 19. Imposition of duty on non-discriminatory basis. - Any provisional duty imposed under rule 13 or an anti-dumping duty imposed under rule 18 shall be on a non-discriminatory basis and applicable to all imports of such articles, from whatever sources found dumped and, where applicable, causing injury to domestic industry except in the case of imports from those sources from which undertaking in terms of rule 15 has been accepted.
RULE 20. Commencement of duty. - (1) The anti-dumping duty levied under rule 13 and rule 19 shall take effect from the date of its publication in the Official Gazette.
(2) Notwithstanding anything contained in sub-rule (1) -
(a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the anti-dumping duty may be levied from the date of imposition of provisional duty;
(b) in the circumstances referred to in sub-section (3) of section 9A of the Act, the anti-dumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty :
Provided that no duty shall be levied retrospectively on imports entered for home consumption before initiation of the investigation :19
Customs Appeal No.76117 of 2024 Provided further that in the cases of violation of price undertaking referred to in sub-rule (6) of rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of the terms of such undertaking :
[Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case.] ...................................
RULE 23. Review. - [(1) Any anti-dumping duty imposed under the provision of section 9A of the Act, shall remain in force, so long as and to the extent necessary, to counteract dumping, which is causing injury. (1A) The designated authority shall review the need for the continued imposition of any anti-dumping duty, where warranted, on its own initiative or upon request by any interested party who submits positive information substantiating the need for such review, and a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said anti- dumping duty is removed or varied and is therefore no longer warranted. (1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive anti-dumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry, within a reasonable period of time prior to the expiry of that period, that the expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry.] (2) Any review initiated under [sub-rule (1A) or (1B)] shall be concluded within a period not exceeding twelve months from the date of initiation of such review.
[Provided that notwithstanding anything contained in rule 17, such review shall be completed at least three months prior to expiry of the anti-dumping duty under review.] Subject to [(3) sub-rule (2), the provisions of rules 6,7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 shall apply mutatis mutandis in the case of review.]
(iv) Customs (Finalisation of Provisional Assessment) Regulations, 2018 Regulation 5. Time-limit for finalisation of provisional assessment. - (1) The proper officer shall finalise the provisional assessment within two months of receipt of :
(a) an intimation from the importer or the exporter or his authorised representative or Customs Broker under sub-regulation (7) of regulation 4;
or
(b) a chemical or other test report, where the provisional assessment was ordered for that reason; or 20 Customs Appeal No.76117 of 2024
(c) an enquiry or investigation or verification report, where the provisional assessment was ordered for that reason.
Provided that where the documents or information required to be furnished by the importer or the exporter or requisitioned by the proper officer are made available intermittently, the time period of two months shall be reckoned from the date of last intimation referred to in clause (a) above,:
Provided further that where the documents or information required to be furnished by the importer or exporter, as the case may be, or requisitioned by the proper officer are not made available or made partly available and no further extension of time has been allowed under sub-regulations (3), (4) or (5) of regulation 4, as the case may be, the proper officer shall proceed to finalise the provisional assessment within two months of the expiry of the time allowed for submission of the said documents or information.
(2) The Commissioner of Customs concerned may allow, for reasons to be recorded in writing, a further time period of three months in case the proper officer is not able to finalise the provisional assessment within the period of two months as specified in sub-regulation (1) above.
(3) This regulation shall not apply to such cases of provisional assessments, where Board has issued directions to keep that pending.
(v) Notification No.79/2010-CUS dated 30.07.2010 Anti-dumping duty on PVC Flex film, originating in, or exported from, People's Republic of China G.S.R. (E.) - Whereas in the matter of imports of PVC Flex Film (hereinafter referred to as the subject goods), falling under Chapter 39 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred as the said Customs Tariff Act), originating in, or exported from, People's Republic of China (hereinafter referred as the subject country) and imported into India, the designated authority in its preliminary findings vide notification No. 14/04/2010-DGAD, dated the 22nd June, 2010, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 22nd June, 2010, had come to the conclusion that -
(i) the subject goods had been exported to India from the subject country below its normal value;
(ii) the domestic industry had suffered material injury;
(iii) the injury had been caused by the dumped imports from subject country;
(iv) domestic industry was materially retarded due to the increased imports from the subject country in the domestic market;
and had recommended imposition of provisional anti-dumping duty on the imports of subject goods, originating in, or exported from, the subject country; 21
Customs Appeal No.76117 of 2024 Now, therefore, in exercise of the powers conferred by sub-section (2) of section 9A of the said Customs Tariff Act read with rules 13 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the aforesaid findings of the designated authority, hereby imposes on the goods, the description of which is specified in column (3) of the Table below, falling under sub-heading of the First Schedule to the said Customs Tariff Act specified in the corresponding entry in column (2),originating in the country specified in the corresponding entry in column (4), and exported from the country specified in the corresponding entry in column (5) and produced by the producer specified in the corresponding entry in column (6) and exported by the exporter specified in the corresponding entry in column (7), and imported into India, an anti-dumping duty at the rate equal to the amount indicated in the corresponding entry in column (8), in the currency specified in the corresponding entry in column (10) and per unit of measurement specified in the corresponding entry in column (9) of the said Table.
TABLE*
S. Sub- Des- Country Country Producer Exporter Amount Unit of Currency
No. Heading cription of origin of export Measure
ment
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
1. 3920 10 ‗PVC Flex People's People's Zhejiang Zhejiang 0.152 Kg US
19 Film' Republic of Republic of Hailide New Hailide New Dollar
or China China Material Co., Material Co.,
3920 10 Ltd. Ltd.
12
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
2. 3920 10 ‗PVC Flex People's People's M/s. M/s. Shanghai 0.346 Kg US
19 Film' Republic of Republic of Shanghai Nar Industrial Dollar
or China China Nar Co. Ltd (NAR)
3920 10 Industrial
12 Co. Ltd
or (NAR)
3920 49
00
or
3921 90
26
or
3921 90
29
or
22
Customs Appeal No.76117 of 2024
S. Sub- Des- Country Country Producer Exporter Amount Unit of Currency
No. Heading cription of origin of export Measure
ment
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
3. 3920 10 ‗PVC Flex People's People's M/s. M/s. Shanghai 0.346 Kg US
19 Film' Republic of Republic of Shanghai Inflex Dollar
or China China Nar Sighnage Co.
3920 10 Industrial Ltd.
12 Co. Ltd
or (NAR)
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
4. 3920 10 ‗PVC Flex People's People's Jiangyin Jiangyin 0.370 Kg US
19 Film' Republic of Republic of Nanwei Nanwei Dollar
or China China Plastic International
3920 10 Co. Ltd. Trade Co. Ltd.
12
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
23
Customs Appeal No.76117 of 2024
S. Sub- Des- Country Country Producer Exporter Amount Unit of Currency
No. Heading cription of origin of export Measure
ment
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
3918 90
90
or
3926 90
80
5. 3920 10 ‗PVC Flex People's People's Zhejiang Zhejiang Botai 0.365 Kg US
19 Film' Republic of Republic of Botai Plastic Co. Ltd. Dollar
or China China Plastic Co.
39201012 Ltd.
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
6. 3920 10 ‗PVC Flex People's People's Zhejiang Zhejiang 0.374 Kg US
19 Film' Republic of Republic of Ganglong Ganglong New Dollar
or China China New Material
3920 10 Material Co. Ltd.
12 Co., Ltd.
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
7. 3920 10 ‗PVC Flex People's People's Heytex Heytex 0.143 Kg US
19 Film' Republic of Republic of Technical Technical Dollar
or China China Textiles Textiles
3920 10 (Zhangjiaga (Zhangjiagang)
24
Customs Appeal No.76117 of 2024
S. Sub- Des- Country Country Producer Exporter Amount Unit of Currency
No. Heading cription of origin of export Measure
ment
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
12 ng) Co. Ltd. Co. Ltd.
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
8. 3920 10 ‗PVC Flex People's People's Zhejiang Zhejiang 0.450 Kg US
19 Film' Republic of Republic of Tianchang Tian- Dollar
or China China Plastic Fabric chang
3920 10 Co., Ltd. Plastic Fabric
12 Co., Ltd.
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
9. 3920 10 PVC Flex People's People's Cixi Linyun Cixi Linyun 0.340 Kg US
19 Film' Republic of Republic of Plastics Wart Plastics Wart Dollar
or China China CO. Ltd. CO. Ltd.
3920 10
12
or
3920 49
00
or
3921 90
26
or
3921 90
25
Customs Appeal No.76117 of 2024
S. Sub- Des- Country Country Producer Exporter Amount Unit of Currency
No. Heading cription of origin of export Measure
ment
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
10. 3920 10 ‗PVC Flex People's People's Zhejiang Yuli Zhejiang Yuli 0.545 Kg US
19 Film' Republic of Republic of Plastic Co., Plastic Co., Ltd. Dollar
or China China Ltd
3920 10
12
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
11. 3920 10 ‗PVC Flex People's People's Any Any 0.545 Kg US
19 Film' Republic of Republic of combination combinations Dollar
or China China s other than at
3920 10 other than Serial No. 1-10
12 at above
or Serial No. 1-
3920 49 10
00 above
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
26
Customs Appeal No.76117 of 2024
S. Sub- Des- Country Country Producer Exporter Amount Unit of Currency
No. Heading cription of origin of export Measure
ment
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
90
or
3918 90
90
or
3926 90
80
12. 3920 10 ‗PVC Flex People's Any Any Any 0.545 Kg US
19 Film' Republic of other Dollar
or China than
3920 10 People's
12 Republic
or of China
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
13. 3920 10 ‗PVC Flex Any People's Any Any 0.545 Kg US
19 Film' Other than Republic of Dollar
or People's China
3920 10 Republic
12 of China
or
3920 49
00
or
3921 90
26
or
3921 90
29
or
3926 90
99
or
3919 90
90
or
3918 10
90
or
3918 90
90
or
3926 90
80
27
Customs Appeal No.76117 of 2024
*as amended by corrigendum F.No. 14/04/2010-DGAD, dated 7th July, 2010. Note : PVC Flex Film includes PVC flex banners, PVC flex sheets for advertising signage, billboards, PVC films and tarpaulins, PVC flex sheets in Rolls (flex banner frontlit/backlit), but does not includes PVC rigid films and cotton/canvas tarpaulins.
2. The anti-dumping duty imposed under this notification shall be effective upto and inclusive of the 29th day of January, 2011 and shall be payable in Indian currency. Explanation. - For the purposes of this notification, rate of exchange applicable for the purposes of calculation of such anti-dumping duty shall be the rate which is specified in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), issued from time to time, in exercise of the powers conferred by section 14 of the Customs Act, 1962 (52 of 1962), and the relevant date for the determination of the rate of exchange shall be the date of presentation of the bill of entry under section 46 of the said Customs Act. [Notification No. 79/2010-Cus., dated 30-7-2010]
(vi) Notification No.82/2011-CUS dated 25.08.2011 Anti-dumping duty on PVC Flex Films (Chapter 39) G.S.R. (E). Whereas, in the matter of import of PVC Flex Films (hereinafter referred to as the subject goods), falling under Chapter 39 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in, or exported from, People's Republic of China (hereinafter referred to as the subject country), the designated authority in its preliminary findings, vide, notification No. 14/4/2010-DGAD, dated the 22nd June, 2010, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 22nd June, 2010, had recommended imposition of provisional anti- dumping duty on the imports of subject goods, originating in or exported from the subject country;
And whereas, on the basis of the aforesaid findings of the designated authority, the Central Government had imposed provisional anti-dumping duty on the subject goods, vide notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 79/2010-Customs, dated the 30th July, 2010, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R.646(E), dated the 30th July, 2010; And whereas the designated authority vide its final findings vide notification No. 14/4/2010-DGAD, dated the 29th July, 2011, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 29th July, 2011, had come to the conclusion that -
(i) the subject goods had been exported to India from the subject country at prices less than their normal values in the domestic market of the exporting country;
(ii) the dumping margins of the subject goods imported from the subject country were substantial and above de minimis;
28
Customs Appeal No.76117 of 2024
(iii) the domestic industry had suffered material injury and the injury had been caused due to dumped imports of the subject goods originating in or exported from the subject country;
(iv) the domestic industry had also been materially retarded due to the dumped imports of subject goods from the subject country; and recommended imposition of final anti-dumping duty on imports of subject goods, originating in or exported from the subject country. Now, therefore, in exercise of the powers conferred by sub-section (1) of section 9A of the said Customs Tariff Act, read with sub-section (5) of the said section 9A and rules 18 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the aforesaid final findings of the designated authority, hereby imposes on the goods, the description of which is specified in column (3) of the Table below, falling under sub-heading of the First Schedule to the said Customs Tariff Act as specified in the corresponding entry in column (2), originating in the countries as specified in the corresponding entry in column (4), and produced by the producers as specified in the corresponding entry in column (6), when exported from the countries as specified in the corresponding entry in column (5), by the exporters as specified in the corresponding entry in column (7), and imported into India, an anti-dumping duty at a rate which is equal to the amount as specified in the corresponding entry in column (8), in the currency as specified in the corresponding entry in column (10) and per unit of measurement as specified in the corresponding entry in column (9) of the said Table.
TABLE
Sl. Sub- Descrip- Country Country Producer Exporter Amo- Unit of Currency
No. Heading tion of of unt Measurement
origin Export
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
1. 3920 10 PVC China PR China PR Heytex Technical Heytex Technical 0.034 Kg US
19, 3920 Flex Textiles Textiles
Dollar
Film (Zhangjiagang) (Zhangjiagang)
10 12, Co. Ltd., China Co. Ltd., China
3920 49
00, 3921
90 26,
3921 90
29, 3926
90 99,
3919 90
90, 3918
10 90
and
3918 90
90
2. 3920 10 PVC China PR China PR Zhejiang Yuli Zhejiang Yuli 0.441 Kg US Dollar
19, 3920 Flex Plastic Co. Ltd. Plastic Co. Ltd.
Film
10 12,
3920 49
00, 3921
90 26,
3921 90
29, 3926
90 99,
3919 90
29
Customs Appeal No.76117 of 2024
90, 3918
10 90
and
3918 90
90
3. 3920 10 PVC China PR China PR Any Combination of producer and 0.538 Kg US
19, 3920 Flex exporter other than Sl. No. 1 and 2
Film Dollar
10 12,
3920 49
00, 3921
90 26,
3921 90
29, 3926
90 99,
3919 90
90, 3918
10 90
and
3918 90
90
4. 3920 10 PVC China PR Any Any Any 0.538 Kg US
19, 3920 Flex country
Dollar
Film other
10 12, than
3920 49 China PR
00, 3921
90 26,
3921 90
29, 3926
90 99,
3919 90
90, 3918
10 90
and
3918 90
90
5. 3920 10 PVC Any China PR Any Any 0.538 Kg US Dollar
19, 3920 Flex country
Film
10 12, other
3920 49 than
00, 3921 China PR
90 26,
3921 90
29, 3926
90 99,
3919 90
90, 3918
10 90
and
3918 90
90
3. Nothing contained in this notification shall apply to,
(i) PVC Rigid Film
(ii) Cotton/Canvas Tarpaulin 30 Customs Appeal No.76117 of 2024
(iii) PVC Film
(iv) Self-Adhesive Vinyl
(v) One Way Vision Film/Perforated Window Film
(vi) Coloured Vinyl
(vii) Mesh Banner/Fabric
4. The anti-dumping duty imposed shall be levied for a period of five years (unless revoked, superseded or amended earlier) from the date of imposition of provisional duty, that is, the 30th July, 2010 and shall be payable in Indian currency. Explanation - For the purposes of this notification, rate of exchange for calculation of such anti-dumping duty shall be the rate which is specified in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), issued from time to time, in exercise of the powers conferred by section 14 of the Customs Act, 1962 (52 of 1962), and the relevant date for the determination of the rate of exchange shall be the date of presentation of the bill of entry under section 46 of the said Customs Act.
[Notification No. 82/2011-Cus., dated 25-8-2011]
9. We note that the Ld.Counsel for the appellant has primarily questioned the retrospective applicability of ADD, as the provisional ADD imposed had already lapsed well before the imposition of the final ADD (Definitive), promulgated vide Notification No.82/2011- CUS dated 25.08.2011. The Ld.Counsel has also however raised a sundry question regarding finalization of the impugned Bill of Entry, when all subject material required to undertake the final assessment was said to be within the possession of the authorities. It is their contention that in/around January 2012 the appellant had paid the required testing fees for the sampling and testing of the imported goods, and therefore the authorities had no reason to inordinately delay the finalization of the subject imports. Another peripheral argument raised before us is that 31 Customs Appeal No.76117 of 2024 the order of the lower authority is non-speaking and therefore vitiates the entire proceedings.
10. Before we concern ourselves with the primary question posed in the matter, it would be apt to clarify the legal position, as existed at the material time, with regard to delayed finalization of the provisional. The Customs (Finalization of Provisional Assessment) Regulations 2018, were notified on 14.08.2018, vide Notification No.73/2018-CUS(NT). Thus while the delay in finalization of the subject imports would genuinely be a matter of grave concern, it cannot be legally faulted upon, as at the material point in time there was no strict timeline stipulation for finalisation of provisional assessments, nor were any consequences attached to such lack of timely action. We also note that this aspect of the matter was also dealt upon by the adjudicating authority in part (b) of Para 14 of his order wherein it is specifically observed as under :
"Only after repeated communication by the Assistant Commissioner of Customs, Appraising Group-II dated 06.07.2021, 25.08.2021 that the importer responded to the enquiries vide reply dt.31.08.2021.
Subsequently, finalisation order No.KOL/CUS/AC/240/ADJ(PORT)/(GR.II) dt 05.04.2022 was passed by Assistant Commissioner of Customs, Appraising Group-II to recover the Anti dumping duty alongwith interest and subsequently, Bank Guarantee of Rs.2,59,900/- was encashed."32
Customs Appeal No.76117 of 2024
11. It therefore is evident that the plea of the appellant lacks substantiation. As noted by the ld.adjudicating authority in his order, two communications dated 06.07.2021 and 25.08.2021 were addressed by the revenue to the appellant, response to which was furnished by the appellant as late as only on 31.08.2021 and necessary finalisation of the subject imports undertaken by the authorities subsequently (within six months thereof). This is however not to any way countenance the time lag in the matter, if any, on part of the authorities who were required both morally and administratively (if not legally at that point in time) and duty bound not to drag the matter endlessly. Prompt and timely action on part of the authorities would augur well for instilling faith and confidence in the system, of which the authorities are the guardians and must not forget so at all times.
12. As for the challenge in the impugned appeal, to the applicability and admissibility of levying ADD on the subject import goods - PVC Flex Banner imported from China from specified producers/exporters, as per retrospectively effective Notification No.82/2011-CUS dated 25.08.2011, is concerned, it may be stated that the lawpoint involved therein stood settled by the apex court's decision in the case of Commissioner of Customs, Bangalore v. G.M. Exports 5 . The hon'ble apex court was concerned in the subject matter with the levy of ADD between the period wherein the provisional ADD had lapsed and the imposition of final ADD or Definitive. Following extracts from the 5 2015 (324) ELT 209 (SC) 33 Customs Appeal No.76117 of 2024 said decision of the apex court are of relevance for appreciating the issue :
"30. Rule 13 is very important and when Rule 20 is read harmoniously with both Rules 13 and 21, all the dark clouds which come in on account of the suggested construction of Rule 20 by revenue get dispelled by the sunlight of harmonious construction of all the three Rules read together.
31. Rule 13, in line with clause 7.4 of the WTO Agreement, enables the Central Government to impose provisional anti-dumping duty not exceeding the margin of dumping, with two provisos. First, no such duty can be imposed before the expiry of 60 days from the date of public notice issued by the designated authority regarding its decision to initiate investigations. And second, such duty cannot remain in force for a period of more than six months, which is only extendable on request made by the foreign exporters who represent a significant percentage of the trade involved, to a maximum period of 9 months. The important words used in the second proviso are "shall", "only", and "not exceeding", all of which point to the fact that the time period mentioned in the said proviso is mandatory and cannot be exceeded by even a single day.
32. Under Rule 17, the designated authority is given one year from the date of initiation of an investigation to come out with its final findings. This is extendable by the Central Government only in special circumstances, and only by a further period of 6 months, and no more (Clause 5.10 of the WTO Agreement). Significantly, the designated authority, in its final finding, may also provide for a retrospective levy of duty, the reasons therefor, and the date of commencement of such retrospective levy. This is obviously referable to Section 9A(3), which reproduces clause 10.6 of the WTO Agreement. The reasons must be the reasons mentioned in the said sub-section, and, as mentioned in 34 Customs Appeal No.76117 of 2024 the said sub-section, such retrospective levy cannot commence beyond 90 days from the date of the notification imposing provisional duty.
33. Under Rule 18, the Central Government may in its discretion, and within a maximum period of three months from the date of publication of the final findings by the designated authority, impose a final anti- dumping duty.
34. This brings us to Rule 20, the correct construction of which is determinative of the question raised in these appeals. The first thing to notice about Rule 20 is, as its marginal note states, that it is concerned only with the date of commencement of duty. Once this is appreciated, it becomes clear that its focus is only on when anti- dumping duties are to commence. In sub-rule (1), it speaks of anti- dumping duties levied under Rule 13 and Rule 19, and states that they shall take effect only prospectively, i.e. from the date of publication in the official gazette. It is clear that Rule 19 is a mistake made by the draftsman of the Rules. Rule 18 is obviously referred to. Thus, under sub-rule (1), the provisional anti-dumping duty takes effect on and from the date of its publication in the official gazette. Same is the case with the final anti-dumping duty levied under Rule 18.
35. Sub-rule (2) is in two parts. Sub-clause (a) deals with the date of commencement of an anti-dumping duty, having due regard to a provisional duty that has been levied, whereas sub-clause (b) specifically deals with duty to be retrospectively imposed, that is a retrospective imposition prior to the imposition of a provisional duty. It will immediately be noticed that the subject matter of sub-clause (a) does not purport to be the imposition of an anti-dumping duty with retrospective effect. This is because it seeks to give effect to clause 10.2 of the WTO Agreement. As has been argued by learned counsel on both sides, the key to the understanding of the import of sub- clause (a) is the expression "where a provisional duty has been levied...." Obviously, the word "levied" has to be read as levied in accordance with Rule 13 which, as its marginal note indicates, provides for the "levy" of provisional duty. Once this is clear and the word "levied" is to be understood as levied under Rule 13, the second 35 Customs Appeal No.76117 of 2024 proviso of Rule 13 gets attracted, and under this proviso such levy cannot be for a period exceeding 6 months (on facts in these cases, such period has not in fact been extended beyond 6 months). Thus, it is clear that all that sub-rule (2)(a) does is to enable the levy of a final anti-dumping duty from the date of imposition of a provisional duty so as to convert the provisional measure into a final measure, or so as to take within its ken the provisional anti-dumping duty already imposed. This aspect is succinctly put by "A Handbook on Anti-Dumping Investigations" by Judith Czako, Johann Human and Jorge Miranda. The learned authors state :
"L. RETROACTIVE COLLECTION OF DEFINITIVE DUTIES The normal rule for application of definitive duties, set out in Article 10.1 of the AD Agreement, is that duties shall only be collected on imports made ("entered for consumption") after the effective date of the final determination. Articles 10.2 and 10.6 establish two exceptions to this general rule, providing for the retroactive collection of definitive duties (that is, for the collection of definitive duties before the effective date of the final determination) in two situations :
• The first such situation involves the collection of definitive duties for the period during which provisional measures were applied (and for all practical purposes "converts" the provisional measure into a definitive measure); and • The other involves the collection of definitive duties up to 90 days prior to the date of application of provisional measures, although no definitive duties can be collected on imports that took place before initiation."
36. On a correct reading of the said sub-rule, therefore, the final anti-dumping duty only incorporates the provisional anti-dumping duty within itself, but in the manner provided by Rule 13. Thus, it is clear that such incorporation can only be the period upto which the provisional duty can be levied and not beyond. Thus understood, it is 36 Customs Appeal No.76117 of 2024 clear that both literally, and in keeping with the object sought to be achieved - that is the making of laws in conformity with the WTO Agreement, there can be no levy of anti-dumping duty in the "gap" or interregnum period between the lapse of the provisional duty and the imposition of the final duty. Such interpretation makes it clear that clause 10.2 of the WTO Agreement is reproduced in the same sense though not in the same form in sub-rule (2)(a). The same result therefore as is envisaged in clause 10.2 is achieved by the said construction - that is anti-dumping duty may be levied retroactively for the period for which provisional measures have been applied. The said construction is in consonance with the principles already laid down earlier in this judgment in that the WTO Agreement is intended to be applied by the various signatory nations in a uniform manner. This can only be done by construing the language of Section 9A read with the Rules in the same sense as that of the WTO Agreement.
37. At this juncture, it is interesting to note that a number of member countries of the WTO agreement have opted for the Rule by which anti-dumping duty is levied to the full extent of the margin of dumping. Such nations like Argentina, Mexico and USA therefore have, under the WTO Agreement, only a period of 4 months extendable upto a maximum period of 6 months (instead of 6 months and 9 months respectively) so far as the life span of a provisional duty is concerned. Most of Europe and the rest of the world have opted to impose duties upto the margin of dumping depending upon the extent of injury caused to their domestic industry. Interestingly, the European Community Council Regulation No. 1225 of 2009 dated 30-11-2009 on protection against dumped imports from countries not members of the European Community has this to say :
"Article 9 Termination without measures; imposition of definitive duties 37 Customs Appeal No.76117 of 2024
4. Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. Where provisional duties are in force, a proposal for definitive action shall be submitted no later than one month before the expiry of such duties. The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry."
38. It will be seen from this that an inflexible rule is laid down that would ensure that no "gap" or intervening period occurs between the expiry of the provisional duty and the imposition of the final duty, inasmuch as a proposal to levy final duty has to be submitted no later than one month before the expiry of a provisional duty.
39. ......................
40. We are heartened to note that one other signatory nation has taken the stand that no duty can be collected during the "gap period".
41. Viewed slightly differently, the suggested construction by revenue would render Rule 2(a) ultra vires Section 9A. It has already been seen that sub-section (2) and sub-section (6) of Section 9A do not authorize the imposition of a duty with retrospective effect, in contrast with sub-section (3) thereof. Any duty levied by a final duty notification during the interregnum period would necessarily amount to a retrospective levy of duty for the reason that such period is not covered by the provisional duty notification, being beyond 6 months. This would therefore render sub-rule (2)(a) ultra vires Section 9A. A 38 Customs Appeal No.76117 of 2024 construction which is both in consonance with international law and treaty obligations, which Article 51(c) of the Constitution states as a directive principle of State policy; and with the application of the doctrine of harmonious construction is to be preferred to a narrow doctrinaire meaning which would lead to the Rule being read in such a manner that it is ultra vires the parent statute.
........................................
46. We also find force in the submission of learned counsel for the assessees that the revenue's construction of Rule 20 would achieve indirectly what cannot be achieved directly, having regard to the mandatory language contained in Rule 13 second proviso. Here again a simple example would suffice. Say the provisional duty is levied at the rate of Rs. 50/- PMT and comes to an end after 6 months. 6 months later, a final duty is imposed again at the same rate of Rs. 50/- PMT with effect from the date of levy of the provisional duty. If learned counsel for the revenue were right, Rs. 50/- PMT could be recovered under Rule 20(2)(a) for the interregnum period as well which would, in effect, destroy the scheme of Rule 13 second proviso by extending the period of the provisional duty notification beyond a period of 6 months, which clearly cannot be done. We find therefore that on all these counts, the arguments of revenue cannot be countenanced."
13. As can be noticed from the hon'ble Apex Court's order supra, it has been categorically held that any ADD levied by a final anti-dumping duty notification during the interregnum period or the gap period would certainly amount to a retrospective levy of duty. Provisions for retrospective levy are specifically enumerated and provided for in the ADD Rules ibid and can be acted upon only in the given circumstances as contained in law. The hon'ble Apex Court in its 39 Customs Appeal No.76117 of 2024 decision had noted that such retrospective levy of ADD would render sub-rule 20 (2)(a) of the ADD Rules ultra vires of Section 9A of the Tariff Act2. It was held by the apex court that a construction, ―which is both in consonance with international law and treaty obligations, which Article 51(C) of the Constitution of India states as a directive principle of a state policy; and with the application of the doctrine of harmonious construction is to be preferred to a narrow doctrineare meaning, which would lead to the Rule being read in such a manner that it is ultra vires the present Statute‖. The apex court in its order had further disapproved of an attempt to achieve indirectly as to what could not be achieved directly, having regard to the mandatory language of the second proviso contained in Rule 13 of the ADD Rules. It may be trite to point out that the hon'ble apex court had further elaborated its contention by way of the following example cited in its order:
"46. .........Say the provisional duty is levied at the rate of Rs.50 PMT and comes to an end after 6 months. 6 months later, a final duty is imposed again at the same rate of Rs.50 PMT with effect from the date of levy of the provisional duty. If learned counsel for the revenue were right, Rs.50 PMT could be recovered under Rule 20(2)(a) ibid for the interregnum period as well which would, in effect, destroy the scheme of Rule 13 ibid second proviso by extending the period the provisional duty notification beyond a period of 6 months, which clearly cannot be done. We find therefore that on all these counts, the arguments of revenue cannot be countenanced."
14. We further note that this Tribunal too in a series of cases has earlier held, that there will be no levy of Anti-dumping duty during the interregnum period or the gap period, much less realization of any such 40 Customs Appeal No.76117 of 2024 Anti-dumping Duty at rates higher than those prescribed by way of the provisional ADD Notification. For records the case of Hi-tech Computers v. Commissioner of Customs, Bangalore 6 can be mentioned.
15. In the case of Harsh Commodities Pvt.Ltd. v. Commissioner of Customs, Kandla7, at the time of clearance of the imported goods, the ADD leviable was nil, whereto the import was made, when the provisional ADD levied in terms of Notification No.106/2006-CUS had lapsed and final ADD Notification No.88/2007-CUS had not been promulgated, i..e to say no final ADD was in force at the material time. It was held therein that ADD was correctly declared and assessed as at the time of filing of Bill of Entry. The ADD arrived at was assessed as zero and the importer was not required to make any payment of ADD while undertaking assessment on the Bill of Entry. It further held that any difference between the rate of ADD leviable by way of a provisional Notification and that levied by the final Notification also could not be levied under the circumstances. The Tribunal had categorically held that in terms of Rule 21(1) of the ADD Rules, the importer was not liable to make any payment thereof.
16. The law as propounded by the Hon'ble Gujarat High Court in the case of Perfect Importers And Distributors (I) Pvt.Ltd. v. Union 6 (2023) 11 Centax 188 (Tri.-Bangalore) 7 2020 (373) E.L.T. 133 (Tri.-Ahmd.) 41 Customs Appeal No.76117 of 2024 of India8 also can be adverted to in this regard, to point out that the ADD imposed with respect to imports made during the period was not sustainable.
17. The hon'ble Delhi High Court in the case of Forech India Ltd. v. Designated Authority9 was very categorical in holding that Rule 18(1) of the ADD Rules3 cannot be read to lend any authority or power to the Central Government to issue Customs Notification when the continuity of previous duty or its modified version had suffered a break and/or discontinuance. Laying down the law, while examining a case of continuation of the levy post its expiry, in sunset review investigations, the hon'ble Court had held the notification so issued as non-est. Following paras of the said order are of relevance :
"20. Applying the said principle to the facts of the present case, it is seen that the Notification No. 17/2013 issued 60 days after the expiry of the levy of Anti-dumping duty under the first five year period, would be non est because it sought to extend a levy which had lapsed on 4-5-2013. The second proviso to Section 9A(5) of the Act is an enabling provision granting the Central Government the authority to continue Anti-dumping duty pending the outcome of the Sunset Review for a further period not exceeding one year. The essential requirements for such continuation are : (i) the Sunset Review ought to have been initiated before the expiry of the five year period of levy of Anti-dumping duty; (ii) the inquiry has not concluded within the said period; (iii) a prima facie view is formed by the Government that continuance of the Anti-dumping duty would be necessary, and (iv) such extended period would not exceed one year from the date on 8 2023 (383) E.L.T. 499 (Guj.) 9 2018 (361) ELT 671 (Del.) 42 Customs Appeal No.76117 of 2024 which the first five years expires. The phrase "may continue to remain in force", assumes that there is a levy which exists and its continuance i.e. its carrying forward - without 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.
21. Likewise the second notification imposing Anti-dumping duty for a period of five years too cannot be sustained because it has to be issued within the period of first five years or in the extended one year period of Sunset Review in which the earlier existing duty has been extended. The first proviso of Section 9A(5) of the Act stipulates that in a Sunset Review when the Central Government is of the opinion that cessation of such duty is likely to lead to continuation or recurrence of dumping or injury, it may extend the period of levy for a further period of five years. The degree of levy would be to the extent necessary to offset the injury. In other words, there would have to be a duty in existence for it to be extended. In the present case there was cessation of duty on 5-5-2013 and again on 5-5-2014, therefore, there was no duty on two dates which could have been extended.
22. The protective regime of Anti-dumping duty is to provide a level playing field to the Domestic Industry from the injurious effects of dumped goods upon the Domestic Industry. Such protection is to be continued till such time that the Government deems it necessary (by assessing data every five years or in a Mid-Term Review) for enabling the Domestic Industry to compete against unfair international trade practices. The moment the protection comes to an end or is allowed to 43 Customs Appeal No.76117 of 2024 lapse, the hitherto protected Domestic Industry is exposed to the dynamic forces and full impact of unrestrained international trade. The nature and extent of the injury from dumped goods to the Domestic Industry, would be different and indeed to a greater degree in an unprotected regime vis-à-vis a regime of Anti-dumping duty levy. Such levy is imposed to the extent that it offsets the injury. The assessment in a Sunset Review of a market condition is under a protected regime. The moment the protection ends and free trade is permissible, the impact of free trade and the injury to the Domestic Industry would be of a different degree. There was cessation of levy for 60 days from 5- 5-2013 and for 80 days from 5-5-2014. The Domestic Industry would subsequently have been subjected to the world of unhindered international trade without protection. Therefore, the nature of injury suffered in this period would have to be assessed for the correct levy of Anti-dumping duty. The assessment of injury in the protected environment of Sunset Review would not reflect true nature of injury as may have been suffered by the Domestic Industry when the regime of levy was non-existent for 60 days and 80 days as mentioned above. Assuming that the injury assessed during the protected regime was of a lesser degree, a corresponding lesser percentage of duty would be imposed on the import of dumped goods. This levy, ostensibly a protection to the Domestic Industry, would not do justice to the Domestic Industry. Instead it would continue to insidiously injure and harm the Domestic Industry for a period of five years; This would be more disruptive to fair trade instead of being an ameliorative and corrective measure. For the unprotected period of 60 days and 80 days a fresh exercise may be warranted to assess the extent of injury to the Domestic Industry. In view of the aforesaid cessation of duty for two long phases, there could be no imposition of Anti-dumping duty for a further period of five years under the first proviso of Section 9A(5) of the Act.
23. The respondents argue that there is no delay in the Customs Notification No. 35/2014, dated 24-7-2014 as it was notified within the three months period provided under Rule 18A(1) of the Rules. The Court would note that under Rule 18A(1), the Central Government 44 Customs Appeal No.76117 of 2024 may within three months from the date of publication of the Final Findings impose Anti-dumping duty by Notification in the Official Gazette, however, this three month period is not a stand-alone authorization to the Government. It has to be harmoniously read with the strict timeline fixed in the statute under Section 9A(5) of the Act. The Act embodies the commitment of the Government of India under Article 11(4) of the Implementation Agreement. The Rule cannot override the Act. The Act has fixed a period for completion of Sunset Review within one year from the date of expiry of the initial five year levy and it is in this one year period that the Government must form a view that the cessation of duty would lead to continuation or recurrence of dumping and injury. Therefore, it is only within this period that it may extend i.e. without breaking the continuity of the previous duty or its modified version, for a further period of five years. The thread of the existing duty has to continue from the initial five year levy to the one year extended period of Sunset Review to the proposed five year period. There should be no break in between. 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."
This ratio in law has been adopted in a series of cases.
18. In the case of Saint Gobain India Pvt.Ltd. v. Union of India10 with regard to import of soda ash, the hon'ble High Court had gone to the extent of stating that once a period of (five years) original imposition of ADD or its extended period (one year) under the second proviso to section 9A(5) had expired and no Notification was issued within the said period extending imposition of such duty for a further 10 2019 (367) E.L.T. 222 (Del.) 45 Customs Appeal No.76117 of 2024 period, it was not possible to revive the same with retrospective or prospective effect by issuance of Notification under first proviso to section 9A(5), despite the fact that sunset review was decided in favour of the domestic industry. It had therefore been held in the said matter that the importers were not liable to pay any ADD despite having imported the goods from the indicated countries/suppliers after the date of cessation of the original Notification.
19. It is therefore clear that once the levy comes to an end or there is a break in its continuance the only mechanism of its revival is that as pointed out by the hon'ble apex court in the case of G.M. Exports and therefore no ADD is chargeable in the instant case.
20. We further do not see any window of opportunity for the Revenue, to levy the said ADD in the present matter, though the impugned assessments were provisional in nature. This is so, as a mechanism specified in itself, has been found to be ultra vires of the legal stipulation.
21. It therefore is not only clear from the ratio of the law as noted in foregoing paras, but is also a settled position in law that upon lapse of provisional anti-dumping duty the only measure available to the Revenue for seeking retrospective imposition of ADD (Definitive) would be to act within the strict contours of the legal frame as laid down by the hon'ble apex court in the case of G.M. Exports.
46
Customs Appeal No.76117 of 2024
22. The Special Bench of the Tribunal in the case of Huawei Technologies Companies Ltd. v. Designated Authority 11 in the context of Section 9A of the Tariff Act2 while considering a report of the WTO Panel in a related case, had held that the said Section is to be construed in the same sense as that of a treaty pertaining to Anti- dumping measures.
23. The apex court in the above mentioned G.M. Exports case had categorically noted that the two parts of sub-rule 2 of Rule 20 of the ADD Rules3 which deal with the date of commencement of the Anti- dumping Duty and having specific regard to levy of provisional duty, noted with regard to sub-rule b thereof, that it specifically deals with a retrospective levy which is leviable only in accordance with the prescriptions of section 9A(3) of the Tariff Act2. Analyzing the legal position, the apex court in its order in Para 36 held that the objectives sought to be achieved by the law, acting in tandem with the WTO agreement, there can be no levy of ADD during the ‗gap' period, i.e. period of lapse between provisional duty and imposition of final duty. It had noted that Clause 10.2 of the WTO agreement was reproduced in the same sense though not in the same form in sub-rule 2(a) of Rule 20 of the ADD Rules.
24. The Revenue has further raised a preliminary argument, in the matter, as to the competency of this Bench to take up the present 11 2016 (334) ELT 339 (Tri.Del.) 47 Customs Appeal No.76117 of 2024 appeal for consideration, stating that being an Anti-dumping matter, it is required to be considered by a Special Bench constituted by the Hon'ble President and the two other Hon'ble Members of the Tribunal, as specified under sectin 9C(5) of the Tariff Act2. It may be worthwhile to point out that section 9C of the Tariff Act2 does provide for constitution of a Special Bench in the aforesaid terms. However, it cannot be so loosely interpreted to prohibit/debar the jurisdiction of the Tribunal Benches for consideration of the appeals involving all and sundry aspects relating to levy and realization of Anti-dumping Duties. Sub-section 5 of Section 9C restricts jurisdiction of appeal for consideration by the Special Bench of the Tribunal to such cases as arise in terms of sub-section 1 of Section 9C of the Tariff Act2. Section 9C(1) clearly mandates that appeal against the order of determination or review with regard to existence, degree and effect of dumping in relation to the import would lie to the said Special Bench. Under the circumstances the scope of the enactment cannot be extended to be read beyond what is statutorily provided. In effect only for the determination of the question of the existence, degree and effect of the dumping in relation to the import and review of such matters are an exclusive preserve of the Special Bench as provided vide sub-section 9C(5) thereof. We are therefore convinced that the aforesaid plea of the Revenue is completely baseless and this Bench wields appropriate legal jurisdiction to consider the present Appeal, in terms of section 129C of the Act.
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25. The Larger Bench of this Tribunal in the case of Sunrise Enterprise v. Commissioner of Central Excise, Jalandhar 12 had expressly stated that the date of presentation of Bill of Entry is relevant date for determining applicable rate of duty and given the mandate of law in the case of G.M. Exports - there being no anti-dumping duty leviable on the said date, we are of the considered view that the assessee importer is not liable for payment of any ADD in the matter.
26. In view of our aforesaid findings and respectfully following the ratio of the law as laid down by the hon'ble apex court in the G.M. Exports case, we are convinced that the Revenue has not made out any case to sustain the ADD levy in the matter. The appeal therefore succeeds and the order of the lower authority is set aside. The appellant shall be liable for consequential relief, if any, as per law.
(Order pronounced in the open court on 11th of March 2026.) Sd/ (R. MURALIDHAR) MEMBER (JUDICIAL) Sd/ (RAJEEV TANDON) MEMBER (TECHNICAL) sm 12 2015 (315) E.L.T. 621 (Tri.-LB)