WTO Anti Dumping
It was clarified by the Central Board of Excise and Customs (CBEC), through Circular number 28/2011-Cus dated July 8, 2011, that final anti-dumping duty can be collected further than the predetermined period, only when a notification extending the levy has been issued, before the expiry of the parent notification.
Unless such revalidation is sanctioned by a fresh notification, the collection of final anti-dumping duty shall cease on the termination of the period of 5 years from the date of imposition of the duty "and where the findings in a review are notified after the lapse of the parent notification, the fresh notification would be effective prospectively from the date of issue of such notification", according to the CBEC.
Such a clarification has emerged, because of the expiry of some anti-dumping notifications after the usual period of five years, leading to the delayed issue of notifications extending the levy.
For example, the notification imposing anti-dumping duty on certain rubber chemicals expired on September 26, 2010, but the notification extending the levy till July 25, 2011, was issued only on March 4, 2011.
According to the CBEC, in some cases, field formations were collecting anti-dumping duty even after the conclusion of the legally approved time of imposition, based upon the fact that the original notification providing for levy of anti-dumping duty did not specify the end date.
Moreover, the Circular reveals that definitive/final anti-dumping duty can be collected only for a period of five years from the date of its imposition. Generally, under Section 9A(2) of the Customs Tariff Act, 1975, the anti-dumping levy notified in pursuance of final findings of the Director General (Anti-Dumping) is effective from the date of imposition of provisional duty and, therefore, the period of five years is to be computed from such date. Collection beyond that period is allowable only when the said tax is extended by a notification either for a further period of five years (in pursuance of the final findings of the Designated Authority in a sun set review) or for one year (during the remaining time of sun set review), according to the CBEC.
Simple put, anti-dumping duty should not be collected and no retrospective effect can be given to such notifications in the absence of a fresh notification stretching the original levy beyond the expiry of the parent notification.
However, this calls for mort watchfulness on the part of the CBEC.
It has been seen that in majority cases, the time lapse between the recommendation of the Director General (Anti-Dumping) and the date of notification giving effect to the recommendation exceeds a month. This time gap must be reduced. On its part, in all cases where a review has been initiated, provisional assessment should be reviewed by the Director General (Anti-Dumping), so that if the review results in determination of dumping, duty can be levied retrospectively in such cases.
CBEC CIRCULAR NO-28/2011-Cus, Dated: July 8, 2011 - Read More
Central Board of Excise and Customs - Official Website