2025 PLP (Trib (PTD)

USMAN AHMAD RANJHA, MEMBER.

This appeal was filed on February, 25, 2025, pursuant to section 70 of the Anti-Dumping Duties Act, 2015 ("the Act"), challenging the Notice of Preliminary Determination dated January 31, 2025, regarding the anti-dumping duties imposed on dumped imports of BOPP Self Adhesive Tape in Jumbo Rolls into Pakistan originating in and/or exported from the People's Republic of China.

2. At the very outset, Mr. Azfar Naeem, learned counsel for the Commission, submitted that pursuant to the Preliminary Determination Notice dated 31.01.2025 (the "Impugned Notice"), the provisional anti-dumping duties were imposed for a period of four months, which has since lapsed. He further apprised the Tribunal that a Final Determination Notice dated 24.05.2025 in respect of BOPP has already been issued. Since the Impugned Notice was provisional in nature and has now merged into the Final Determination, the present appeal has become infructuous.

3. Mr. Salman Farooq, learned counsel for the appellants, opposed the stance taken by the learned counsel for the Commission. He contended that the anti-dumping law is a special law with a distinct procedural framework; therefore, the principles of general law regarding the merger of provisional orders into final determinations are not automatically applicable. He submitted that it is pertinent to note that the present Act was enacted by repealing the earlier Anti-Dumping Ordinance, 2000. Under the repealed Ordinance, no right of appeal was provided against the initiation of investigation and the issuance of a preliminary determination. For the first time, the right to appeal against both the initiation of investigation and preliminary determination was expressly incorporated in the Act, thereby expanding the scope of appellate review under the special anti-dumping regime. He contended that the right of appeal is a substantive right, and as such, it cannot be rendered infructuous merely on the ground that the preliminary determination has merged into the final determination. The learned counsel further argued that Section 70(13) of the Act provides a second tier of appeal to the Honorable High Court and if the instant appeal is declared infructuous, it would deprive the appellants of their statutory right to file a second appeal before the Honorable High Court. In support of his arguments, he relied on 2024 SCMR 164.

4. The learned counsel for the Commission opposed by arguing that instant appeal has become infructuous following the issuance of the final determination under Section 39 of the Act. He submitted that the preliminary determination was merely an interim step in a continuous process and has legally merged into the final determination which is now the only operative and enforceable order. Relying on PLD 2016 SC 358 and 1992 PTD 932, he submitted that under the well-settled doctrine of merger, once a final decision is rendered, any preceding interim order loses its legal existence and cannot be challenged independently. By that principle, the preliminary determination, has been subsumed into the final determination. Thus the present appeal against an extinguished and non-existent order has become infructuous.

5. He further contended that the appellant's statutory right of appeal against final determination remains fully intact. Section 70(1)(ii) of the Act provides a comprehensive and effective remedy against the final determination, allowing the appellants to raise all issues of fact and law, including those raised against the preliminary determination. He maintained that dismissal of the present appeal would not cause any prejudice to the appellants. He also controverted the appellants' argument regarding being deprived of the second right of appeal in the event this appeal is dismissed being infructuous as misconceived. The appellants would still have the right to file a second appeal against the Tribunal's orders. Relying on his arguments, he prayed the Tribunal to dismiss the present appeal as infructuous.

6. Barrister Shahrukh Iftikhar, learned counsel for the private respondents adopted the arguments of learned counsel to the Commission and prayed the Tribunal to dismiss the appeal being infructuous.

7. In rebuttal, the learned counsel for the Appellants submitted that the doctrine of merger is neither of universal application nor of unlimited scope, as it applies only in three situations: where the cause has vanished, the law has changed, or the decision of the lower forum has been reversed, modified, altered, or affirmed by the higher forum. He contended that rather than dismissing the instant appeal as infructuous, it should be clubbed with the pending appeals challenging the final determination. He further argued that the judgment of the Honorable Supreme Court reported as PLD 2016 SC 358, relied upon by the counsel for the Commission, is not applicable to the present matter, as it pertains to proceedings under Section 12(2) of the Code of Civil Procedure, 1908.

8. We have heard the learned counsel for the parties at considerable length and examined the record with their valuable assistance.

9. It is an admitted position that the preliminary determination dated 31.01.2025 was valid only for a limited period of four months, as stipulated under Section 45 of the Act. It is also undisputed that the Commission has since issued its final determination dated 24.05.2025 which is currently under challenge in separate appeals before this Tribunal.

10. The statutory framework lays down a structured process for anti-dumping investigations, addressing both preliminary and final measures, including their legal effect and duration. For the purposes of the present matter, only the provisions relevant to the issue under consideration are reproduced below for ease of reference: Section 37- Preliminary Determination (1) The Commission shall make a preliminary determination of dumping and injury, if any, not earlier than sixty days and not later than one hundred and eighty days, after initiation of an investigation. Such preliminary determination shall be based on the information available to the Commission at that time. (2) The Commission shall issue a notice of preliminary determination, whether affirmative or negative, which shall, subject to the requirement of section 31, set forth in sufficient detail the findings and conclusions reached on all issues of fact and law considered material. Such notice of preliminary determination may also contain such other information as may be prescribed. (3) . (4) . Section 43 - Imposition of Provisional Measures (1) The Commission may impose provisional measures if it makes an affirmative preliminary determination of dumping and injury, and determines that provisional measures are necessary to prevent injury being caused during the course of an investigation: Provided that provisional measures shall not be applied sooner than sixty days from the date of initiation of the investigation. Provided further that the amount of the provisional anti dumping duty shall not exceed the margin of dumping as provisionally established, but it may be less than the margin if such lesser duty would be adequate to remove the injury to the Domestic Industry. (2) A negative preliminary determination of dumping shall not automatically terminate an investigation, but no provisional measures shall be imposed in such case. (3) . Section 45 - Duration of Application of Provisional Measures: Provisional measures shall be applied for a period not exceeding four months: Provided... [Proviso conditions apply in specific cases]. Section 55 - Imposition of Definitive Anti-Dumping Duties Retroactively (1) Where the Commission makes a final determination of injury but not of a threat thereof or of material retardation of the establishment of an industry or, in the case of a final determination of a threat of injury, where the commission determines that the effect of dumped imports would, in the absence of provisional measures, have led to a determination of injury, definitive anti-dumping duties may be levied retroactively for the period for which provisional measures, if any, have been applied. (2) If definitive anti-dumping duty imposed under subsection (1) is higher than the amount of provisionally determined dumping margin set forth in the notice of preliminary determination referred to in subsection (2) of section 37, the difference shall not be collected, and if such definitive anti-dumping duty is lower than the amount of such provisionally determined dumping margin, the difference shall be refunded by the Commission within forty-five days of such determination. (3) Save as provided for in subsection (1), where the Commission makes a determination of threat of injury or material retardation, but no injury has yet occurred, definitive anti-dumping duties may be imposed only from the date of the determination of threat of injury or material retardation, and any cash deposit made during the period of application of provisional measures shall be refunded by the Commission within forty-five days of such determination. (4) Where the Commission makes a negative final determination, any cash deposit made during the period of application of provisional measures shall be refunded by the Commission within forty-five days of such determination.

11. The statutory language of the above provisions unambiguously reflects that provisional anti-dumping measures are temporary in nature, imposed solely to prevent injury during the course of an investigation, and valid for a maximum of four months. These measures are inherently interim, contingent, and not intended to extend beyond the transitional phase of the investigation. Crucially, their legal effect is subordinate to, and dependent upon, the Commission's final determination. The legal structure is further clarified and reinforced by Section 55, which governs the retrospective application of definitive anti-dumping duties and delineates the legal consequences of provisional measures once a final determination is issued. Specifically, Section 55(2) provides a critical safeguard that where the definitive duty exceeds the provisional duty, the excess shall not be collected, thereby protecting importers from retrospective financial liability beyond what was provisionally imposed. Conversely, if the definitive duty is lower than the provisional duty, the Commission is obligated to refund the difference within forty-five days.

12. These statutory limitations affirm that provisional duties are temporary and conditional in nature. They do not give rise to enforceable obligations beyond their limited duration or legal purpose. Moreover, Section 55 of the Act underscores the contingent and non-final nature of provisional anti-dumping measures. It functions as a statutory mechanism that links the provisional phase of the investigation with its final outcome, ensuring that provisional actions are subject to confirmation, adjustment, or nullification based on the final determination. Once a final determination is issued, provisional duties no longer have any independent legal effect or force.

13. In the present case, provisional anti-dumping duties were imposed from 01.02.2025 for a period of four months, following the preliminary determination dated 31.01.2025. A final determination was issued on 24.05.2025, imposing definitive anti-dumping duties effective retroactively from 01.02.2025 for a period of five years. Thus, the period covered by the preliminary determination has been fully subsumed within the final determination. Pursuant to Section 55(2) of the Act, the Commission is not permitted to recover any amount exceeding the provisional duty, even if the final duty is higher; conversely, where the final duty is lower, the Commission is obligated to refund the difference within forty-five days. This reflects the clear legislative intent that provisional duties are temporary and tentative in nature and cannot independently serve as the basis for sustained or enforceable relief once the final determination is issued. Reinforcing this position, the Commission in its final notice expressly stated: "Since the rate of definitive anti-dumping duty is higher than the rate of provisional anti-dumping duty imposed than the difference between provisional anti-dumping duty rate and definitive duty rate shall not be recovered as provided under Section 55(2) of the Act." Accordingly, the preliminary determination and the associated provisional measures have been superseded and absorbed by the final determination, and therefore no longer retain any operative legal effect. Entertaining the present appeals would not only be procedurally inefficient, entails duplication and risks legal inconsistency. Both the preliminary and final determinations stem from the same investigation and address substantially the same issues, including dumping, injury, and causation. Proceeding with this appeal would therefore be redundant, result in unnecessary consumption of judicial resources, and undermine the integrity of the adjudicatory process. Moreover, Section 70(1)(ii) of the Act provides a comprehensive and effective remedy against the final determination, enabling the appellants to raise all relevant issues of fact and law, including those raised in relation to the preliminary determination. This ensures that the appellant's rights are preserved and fully addressed at the appropriate stage of the proceedings.

14. It is a well-established principle of law that interim, provisional, or interlocutory orders are issued only to aid the final adjudication of a matter and do not survive once a final decision is rendered. Upon conclusion of the proceedings and issuance of the final order, all earlier interim or interlocutory orders lose their legal efficacy and merge into the final determination. This principle has been authoritatively affirmed by the Honorable Supreme Court of Pakistan in its judgment reported as 2023 SCMR 1247, wherein the Honorable Apex Court comprehensively discussed the nature and effect of interim/provisional/preliminary orders upon the passing of a final order. The relevant paragraph of the judgment is reproduced hereunder:

11. The interim orders are made in the aid of the final order that the court may pass and which merges into final order and does not survive after the final adjudication. The issue and effect of an interlocutory order, final order and merger was considered in detail in paragraph 25 of the judgment in the case of Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others, (PLD 2014 Sindh 389) which was affirmed by this Court vide judgment reported as PLD 2016 Supreme Court

570. The relevant excerpt is replicated as under:-

1. Interim order exhausts or becomes merged in final order made in case.

2. All interlocutory orders made in the course of a proceeding in the nature of a suit must necessarily lapse with the decision of the suit.

3. No interlocutory order will survive after the original proceeding comes to an end.

4. An interim order does not survive after the final disposal of the Writ Petition and only on the strength of the interim order, the Court cannot grant any order.

5. An interlocutory order merges into the final order and does not survive after the final adjudication.

6. A proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action.

7. The word "interim" inter alia means one for the time being; one made in the meantime and until something is done; an interval of time between one event, process or period and another.

8. The interim order would merge in the final order and no right could be claimed by plaintiff on the basis of interim order.

9. Merger is defined generally as absorption of a thing of lesser importance by a greater whereby lesser ceases to exist but the greater is not increased.

10. In Corpus Juris Secundum. The verb 'to merge' has been defined as meaning to sink or disappear in something else, to be lost to view or absorbed into something else, to become absorbed or extinguished.

11. It is a well-settled principle that once a final order is passed, all earlier interim orders merge into the final order, and the interim orders cease to exist.

12. A judgment or order may be final for one purpose and interlocutory or another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose. In general a judgment or order which determines the principal matter in question is termed final.

13. The meaning of the two words 'final" and "interlocutory" has, therefore, to be considered separately in relation to the particular purpose for which it is required. (Emphasis added by us)

15. The appellants' contention that their right to a second-tier appeal under Section 70(13) of the Act would be lost if the present appeal is dismissed is misconceived. An order dismissing an appeal as infructuous is itself appealable, and the appellants remain free to pursue all available statutory remedies.

16. Accordingly, the present appeal, being entirely premised on the preliminary determination, has become infructuous. It no longer raise a live legal issue under the statutory framework, particularly in light of the conclusive findings and the retroactive effect of the final determination. This Tribunal is not required to adjudicate matters that have ceased to possess legal significance due to subsequent developments within the same proceedings.

17. For these reasons, this appeal is dismissed as infructuous. MQ/32/Tax(Trib) Appeal dismissed.