Page 265 - ELT_15th July 2020_Vol 373_Part 2

2020 ] H.K. TRADE WIND TRADING LTD. v. DESIGNATED AUTH., DGAD & ALLIED DUTIES 247

“36. The Authority holds that NSR applicants are not entitled to individu-
al dumping margin. The Authority, therefore, recommends that the exports
of the subject goods made by M/s. Shandong Haohua Tire Co. Ltd. (Hao-
hua) (producer), M/s. Guangzhou Exceed Industries Technology Co., Ltd.
(exporter) and M/s. H.K. Trade Wind Trading (exporter) from the date of
initiation of the present NSR investigation may be subjected to levy of Anti-
Dumping Duty as imposed earlier on the imports of the subject goods, orig-
inated in or exported from China PR vide Customs Notification No.
45/2017-Cus. (ADD), dated 18-9-2017.”
16. This means that the relief claimed by the appellants for granting in-
dividual margin of dumping was not granted and it was specifically held that
they would be subjected to levy of anti-dumping duty as imposed earlier on the
subject goods in the residual category by Notification dated 18 September, 2017.
17. This is also how the Domestic Industry appreciated the final find-
ings because in the preliminary objections filed by the Domestic Industry on 23
October, 2019 to the maintainability of the Appeal it has been stated as follows :
“Accordingly, the investigations were closed and no recommendation in re-
spect of the applicants for new shipper review, was made. The refusal to
determine an individual dumping margin for the applicants, is the subject
matter of the present appeal.”
18. It is not in dispute that the Central Government has not issued any
Notification as contemplated in sub-section (1) Section 9A of the Tariff Act.
19. The issue that arises for consideration is whether the present appeal
under Section 9C(1) of Tariff Act is maintainable or not. At this stage it also needs
to be noticed that the Designated Authority, in its final findings notified on 2
May, 2019, also observed in paragraph 37 that any appeal against this notifica-
tion shall lie before Customs, Excise and Service Tax Appellate Tribunal in ac-
cordance with the Tariff Act and the decision of the Delhi High Court in Jindal
Poly Film Ltd.
20. The submission of Learned Counsel for the Appellants is that since
there is no affirmative recommendation for individual anti-dumping margin for
three applicants who had filed an application for New Shippers Review under
Rule 22 of the Anti-Dumping Rules, the present appeals would be maintainable
in view of the decision of Delhi High Court in Jindal Poly Film Ltd.
21. The Delhi High Court, after analysing of the provisions of Section
9C of the Tariff Act and the provisions of the Anti-Dumping Rules, referred to
the order of Supreme Court in Saurasthra Chemicals Ltd. and observed as follows :
“22. We agree with the counsel for the third respondent that the aforesaid
order proceeds and gives an answer to the specific situation in the said case,
as the Designated Authority had in affirmative recommended imposition of
Anti-dumping duty, which question had not attained finality and was
pending consideration before the Central Government. The Central Gov-
ernment had not determined and decided whether or not to impose Anti-
dumping duty, and hence, the order passed by the Designated Authority
remained a mere recommendation and had not fructified into final deter-
mination. The situation would not be apposite, albeit entirely different
when the Designated Authority holds and gives a final finding in negative
i.e. no Anti-dumping duty is required to be imposed. In this eventuality,
the order of the Designated Authority is final and no further examination is

EXCISE LAW TIMES  15th July 2020  265