Anti-Dumping Appeals Barred Against Finance Ministry Notifications After 2023 Amendment: CESTAT

The Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) ruled that, following the Finance Act 2023 amendment, anti-dumping appeals are not maintainable against Finance Ministry notifications under Section 9C of the Customs Tariff Act, 1975, provided the amendment is brought into effect through a Gazette notification.

Essilorluxottica Asia Pacific Pte Ltd. filed an anti-dumping appeal under Section 9C of the Customs Tariff Act, 1975, challenging the final findings dated 29.09.2022 issued by the designated authority in the anti-dumping investigation on imports of semi-finished ophthalmic lenses from China PR, published in the Gazette of India (Extraordinary) the same day. The authority had recommended the imposition of definitive anti-dumping duty for five years from the date of notification by the Central Government.

The appellant also contested the consequential notification dated 27.12.2022, published in the Gazette of India (Extraordinary), through which the Central Government, exercising powers under Section 9A(1) and (5) of the Customs Tariff Act along with Rules 18, 20, and 23 of the 1995 Anti-Dumping Rules, imposed anti-dumping duty on semi-finished ophthalmic lenses for five years.

The bench of Justice Dilip Gupta (President), Binu Tamta (Judicial Member) and P.V. Subba Rao (Technical Member) has observed, “It is in the context of the un-amended provisions of sub-sections (1) and (6) of section 9A of the Customs Tariff Act that the aforesaid observations were made by the Supreme Court in Tata Chemicals (2). After the amendment made by section 134 of the Finance Act, 2023, the determination or review is only by the designated authority and it is against this determination or review that an appeal would lie to the Tribunal under section 9C of the Customs Tariff Act.”

The tribunal noted that since the Central Government has not issued a notification under Section 1(2)(b) of the Finance Act, 2023, Section 134 has not come into effect. Thus, amendments to Sections 9A and 9C remain unenforced, making the present anti-dumping appeal maintainable before the Tribunal.