9911796707
TMI Blog2008 (5) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1st 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, 2nd May, 2002 and was valid for a period of 5 years, that is, 1st May, 2007. We are told that the anti-dumping duty has been extended for another five years. 5. It appears that some exporters from China, that is, Respondent Nos. 3 and 4 filed an application under Rule 22 of the Anti-Dumping Rules requesting for a review of anti-dumping duty on the ground that they were exporters of vitrified and porcelain tiles and were making exports to India for the first time. Apparently on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Supreme Court. 9. We have gone through the provisions of Rule 22 of the Anti-dumping Rules and this reads as follows:- "22. Margin of dumping, for exporters not originally investigated.-(1) If a product is subject to anti-dumping duties, the designated authority shall carry out a periodical review for the purpose of determining individual margins or dumping for any exporters or producers in the exporting country in question who have not exported the product to India during the period of investigation, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to provisional assessments and to ask for a bond or a guarantee for payment of duty by an importer, if the Designated Authority so recommends, for the period of review. Needless to say, provisional assessments cannot be made with retrospective effect. Therefore, to avoid or at least lessen the chances of manipulation, there are three options available: to permit exports without the levy of anti-dumping duty, this may wipe out the domestic industry; to permit exports after levy of anti-dumping duty, this may financially wip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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 Government decides to accept the recommendation of the Designated Authority which, for example, may be that Respondent Nos. 3 and 4 are liable to pay anti-dumping duty then the provisional assessments that have been made can always be finalized and the duty due from Respondent Nos. 3 and 4 may be recovered. Surely, the Petitioner cannot object to this. However, if the recommendation made to the Central Government is that there is no dumping by Respondent Nos. 3 and 4 or that their individual margins do not fall foul of the provisions of law, the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
