The Delhi Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in its recent ruling has held that the Custom Notification for the imposition of anti-dumping duty need not be sent during the lifetime of existing anti-dumping duty since the time limit gets extended as per section 6 of the 2020 Relaxation Act.
M/s Convestro (Hong Kong) Limited, an exporter of “Flexible Slabstock Polyol” produced in Singapore, has challenged the customs notification dated 09.06.2020 issued by the Central Government for the imposition of anti-dumping duty on the subject goods for a period of five years from the date of publication of the notification based on the sunset review final findings dated 17.03.2020 of the designated authority recommending continuation of definitive anti-dumping duty.
The first proviso to section 9A(5) authorizes the Central Government to extend the duty for a further period of five years under final findings in a sunset review. It preconditions the existence of anti-dumping duty for the same to be extended for a further period of five years. It was stated that if such duty is allowed to expire, the first proviso does not aid the Central Government to revive or bring to life the expired duty after the original levy expires or lapses.
Rule 23(3) of the 1995 Anti-Dumping Rules borrows rule 18 for the sunset review mutatis mutandis i.e. with necessary modifications. Rule 18(1) allows the Central Government a period of three months to form its opinion to continue the duty. The time limit available to the Central Government to form its opinion to extend the duty has to be read in harmony with the provisos to section 9A(5).
It was evident that the extension of duty for further five years would be valid if such an extension happens before the cessation of an existing duty. The language of section 9A(5) read with its provisos and rule 18(1) has to be harmoniously interpreted to give effect to the legislative intention under the statute.
The provision of section 6 of the 2020 Relaxation Act extends the time limit specified in, or prescribed or notified under Central Excise Act, 1944, the Customs Act, 1962, the Customs Tariff Act, 1975 or Chapter V of the Finance Act, 1994 which falls during the period from the 20th day of March 2020 to the 29th day of September 2020.
It was argued by the respondent that even if the contention of the appellant that the notification for the imposition of anti-dumping duty could have been issued only on or before 06.04.2002 is accepted, then the time limit for issuance of the notification gets extended given the provision of section 6 of the 2020 Act. On the other hand, the appellant contended that when there is no prescription of the time limit in section 9A(5), section 6 will not apply.
A Coram comprising of Justice Dilip Gupta, President, P V Subba Rao, Member (Technical), Dr Rachna Gupta, Member (Judicial) observed that the appellant cannot be permitted to contend that in the context of the first proviso to section 9A(5) of the Tariff Act, the time limit for issuing the notification for the imposition of anti-dumping duty is before the last date on which the existing antidumping duty comes to an end.
Further held that since the contention of the appellant that the notification has to be issued during the lifetime of the existing anti-dumping duty under the first proviso to section 9A(5) is not accepted, then the notification dated 09.06.2020 would be valid. The Tribunal dismissed the appeal.
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