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2022 (5) TMI 1321 - AT - CustomsLevy of Anti Dumping Duty - likelihood of recurrence of dumping and injury in the event of expiry of duty - modification of Second Sunset Review - likelihood of recurrence of dumping and injury in the event of expiry of duty - Customs Notification No. 44/2021-Customs (ADD) dated 12.08.2021 - HELD THAT:- Section 9A of the Tariff Act deals with anti-dumping duty on dumped articles. It provides that if any article is exported by an exporter or producer from any country 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. Margin of dumping has been defined to mean the difference between the export price and the normal value. The export price means the price of the article exported from the exporting country. Normal value has been defined to mean the comparable prices for the like article when destined for consumption in the exporting country - Sub-section (5) of section 9A of the Tariff Act provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. The first proviso stipulates that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuance 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. What also transpires from the final findings is that continued dumping by the subject countries in India has continued despite the imposition of anti-dumping duty. The designated authority, while examining the aspect of ‘likelihood of injury’, recorded a finding that likelihood or recurrence of injury to the domestic industry was not ‘strong enough to warrant continuation of duties beyond 11 years’ - What was required to be examined by the designated authority was whether withdrawal of anti-dumping duty would lead to continuance or recurrence of dumping as well as injury to the domestic industry. Mere continued levy of anti-dumping duty for 11 years cannot be made a ground to conclude that there is no requirement to continue anti-dumping duty. The applicant had requested for imposition of anti-dumping duty on a narrower scope of the product under consideration and had not made any claim for enlargement of the product under consideration in the sunset review proceedings. It is the prerogative of the domestic industry to make a claim for imposition of duty on the types of product and neither section 9A (5) of the Tariff Act nor rule 23 of the Anti-Dumping Rules bars the designated authority from restricting the scope of the product under consideration in a sunset review. No prejudice can be said to have been caused to the foreign exporters if the product under consideration is restricted in a sunset review and in fact the foreign exporters would benefit if the anti-dumping duty is not levied on the products excluded from the scope of the product under consideration. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that the designated authority should re-examine whether the cessation of anti-dumping duty would likely lead to continuation or recurrence of injury so as to warrant imposition of anti-dumping duty for a further period of five years. It needs to be noted that the designated authority had recorded a categorical finding that cessation of anti-dumping duty would lead to continuation or recurrence of dumping and even with regard to the injury aspect, the designated authority did hold that cessation of anti-dumping duty would lead to continuation or recurrence of injury, but it further held that such injury was not strong enough to warrant continuation of anti-dumping duty for a further period of five years. Appeal is allowed to the extent that the designated authority shall re-examine and give a fresh finding as to whether cessation of anti-dumping duty would likely lead to continuation or recurrence of injury so as to warrant imposition of anti-dumping duty for a further period of five years. The final findings dated 30.07.2021 of the designated authority, therefore, stand modified to this extent.
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