TMI Blog2008 (5) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 2007 issued by Respondent No.2. 2. It is also prayed that there should be a stay of operation of Notification No.39/07-Cus., dated 9 th March, 2007 issued by Respondent No.1 permitting provisional assessment of the goods imported by Respondent Nos. 3 and 4. In our opinion, the second prayer is consequential to the first prayer. 3. The Notification dated 25 th January, 2007 concerns itself with the initiation of New Shipper Review under Rule 22 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as "the Anti-Dumping Rules"). 4. By Notification No.73/2003 Customs dated 1 st May, 2003, the Central Government in exercise of powers conferred by sub-section (5) read with sub- section (1) of section 9A of the Customs Tariff Act read with Rules 18 and 20 of the Anti-Dumping Rules imposed anti-dumping duty on all exports of vitrified and porcelain tiles, inter-alia, originating from the People's Republic of China. The anti-dumping duty imposed was with effect from the date of imposition of the provisional anti-dumping duty, that is, 2 nd May, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period subsequent to the application for such review would distort the entire scheme and purpose of imposition of anti-dumping duty, to the grave disadvantage of the domestic industry that had earned the protection of anti-dumping duty. The contention that the new shipper review proceedings are in the nature of `advance ruling' for which the period of review ought to be after the date of initiation of new shipper review is, therefore, totally misconceived." 7. No doubt, the decision of the Tribunal supports the case of the Petitioner to the extent that it is the view of the Tribunal that the new shipper review should cover a period prior to the initiation of review. 8. Learned counsel for the Petitioner has informed us that this is also the practice that is followed in United States of America and China as well as some other jurisdictions and there is no reason why a different practice should be followed in India. It is also submitted by learned counsel for the Petitioner that the decision of the Tribunal appears to have been appealed against by the Designated Authority and the matter is pending before the Supreme Court but no interim stay has been granted by the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w ready. To this extent, it appears that as at present advised the provisions of Rule 22(1) of the Anti-Dumping Rules do not prohibit the Designated Authority from carrying out a periodic review for determining the individual margin in respect of Respondent Nos. 3 and 4. 12. According to learned counsel for the Petitioner, the apprehension of the Petitioner is that since the review period is prospective, then Respondent Nos. 3 and 4 can manipulate the export price setting the review process at naught. On the other hand, it is contended that if the review period is retrospective, then there is no scope for manipulation and a meaningful review can be conducted. 13. Learned counsel overlooks the provisions of Rule 22(2) of the Anti-Dumping Rules. This very clearly prohibits the Central Government from levying anti-dumping duties on such exporters or producers as are covered by sub-Rule (1) for the period of review. If Respondent Nos. 3 and 4 are permitted to export porcelain/vitreous tiles without any levy of anti-dumping duty, they can wipe out the domestic industry. To avoid this, the proviso to Rule 22(2) of the Anti-Dumping Rules entitles the Central Government to resort t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the interim order. 16. There are several other reasons for coming to the conclusion that the Petitioner has not made out a prima facie case for grant of interim relief, one of them being that Respondent Nos.1 and 2 have already completed the new shipper review in terms of the Notification dated 25 th January, 2007 and a final order appears to have been passed by the Designated Authority prior to our interim stay being communicated. The final order, however, has not been published. It will be in the interests of all concerned if the final order is made known, which is not possible if the interim stay continues. Moreover, no harm is caused to the domestic industry if the final order is published because in any case the interests of the domestic industry are protected, at least for the time being, by provisional assessments made in respect of the imports by Respondent Nos. 3 and 4. 17. The final order passed by the Designated Authority is only in the nature of a recommendation made to the Central Government and is not necessarily binding upon the Central Government, which may or may not accept the recommendation of the Designated Authority. In the event the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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