07 August 2014

Anti-dumping duty – Extension after expiry of original notification, not valid

Anti-dumping duty cannot be extended by amending notification issued after expiry of original notification imposing definitive ADD. Delhi High Court in its judgement dated 11-7-2014 has set aside the notification extending the levy, owing to non-completion of sunset review, after the original notification had expired. The challenge to the initiation of sunset review, on grounds of non-communication through the official gazette before the expiry of the levy, was however not upheld by the court in a case involving imports of Acrylonitrile Butadiene Rubber from Korea RP.

The government’s contention that continuation of anti-dumping duty during pendency of the sunset review is more or less automatic was hence rejected by the court relying on Articles 11 of the WTO’s Anti-dumping Agreement. It was found that power to continue with the ADD under Section 9A(5) of the Customs Tariff Act, 1975 is not available after expiry of the original notification.

Section 6 of the General Clauses Act, providing for continuation of notifications issued under repealed Act, was also found to be not applicable in the present case. However, in respect of communication of initiation of sunset review, the court held that as long as the initiation is shown to have been before the expiry and Public Notice is made available within a ‘proximate period’ from that date, the inquiry is valid.


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