Page 267 - ELT_15th July 2020_Vol 373_Part 2

2020 ] H.K. TRADE WIND TRADING LTD. v. DESIGNATED AUTH., DGAD & ALLIED DUTIES 249

imposition of anti-dumping duty as against final findings when no anti-dumping
duty is imposed. It has held that in cases the Designated Authority does not rec-
ommend for imposition of anti-dumping duty, an appeal would lie to the Tribu-
nal. The present is a case where the Designated Authority has not made any rec-
ommendation or imposition of any definitive individual dumping margin for the
three Appellants. It would clearly be a case falling in that category where the
Designated Authority does not make any recommendation for imposing anti-
dumping duty. Thus, the appeals would clearly be maintainable under Section
9C(1) of the Tariff Act.
23. Learned Counsel for the Domestic Industry has, however, laid em-
phasis on Rule 22(2) of the Anti-Dumping Rules and has submitted that under
the main part of sub-rule (2) of Rule 22, anti-dumping duty shall not be levied on
imports from such exporters during the period of review and so, if the anti-
dumping has to be levied from the date of initiation of review, the Central Gov-
ernment has to issue a Notification, even if provisional assessment was carried
out in terms of the proviso to sub-rule (2) of Rule 22.
24. It is not possible to accept this submission. Though, under the main
part of sub-rule (2) of Rule 22, it is provided that the Central Government shall
not levy anti-dumping duties during the period of review, but the proviso per-
mits the Central Government to resort to provisional assessment and if the re-
view results in determination of dumping in respect of the subject goods, it may
levy duty in such cases retrospectively from the date of initiation of the review.
What is, therefore, important to notice is that the review should result “in a de-
termination of dumping in respect of such products or exporters”. It is only in
such a case that the Central Government may levy duty retrospectively from the
date of initiation of the review, for which purpose a notification has to be issued
by the Central Government.
25. In the present case, the Designated Authority did not make a rec-
ommendation for imposition of any definitive individual dumping margin. The
Appellant wanted individual dumping margin but that was not accepted and the
levy of duty as provided in the Notification dated 18 September, 2017 continues.
Thus, it would not be necessary for the Central Government to issue a notifica-
tion for levy of retrospective duty. Duty was required to be paid by the appel-
lants under the residuary category of the notification dated 18 September, 2017
and the same duty continues.
26. Learned Counsel for the Domestic Industry has stated that the Cen-
tral Government, in a matter where specific individual dumping margin was de-
nied on a New Shippers Review application, had issued a notification after the
final findings were notified by the Designated Authority. This would not mean
that an appeal under Section 9C(1) of the Tariff Act would not lie. The Delhi
High Court in Jindal Poly Film Ltd. clearly held that an appeal can be filed against
the final findings of the Designated Authority refusing to impose anti-dumping
duty.
27. Thus, for all the reasons stated above, the preliminary objection
raised by the Domestic Industry on the maintainability of the appeals is rejected.
The appeals shall now be heard on merits on 12 March, 2020.
(Order pronounced in open Court on 21-2-2020)
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EXCISE LAW TIMES  15th July 2020  267