SURIWONG INTERNATIONAL SDN. BHD. v Menteri Kewangan, Malaysia (01(f)-31-10/2024(W))

PENGARAH NEGERI JABATAN KASTAM DIRAJA DI KEDAH ... RESPONDEN-RESPONDEN [Dalam Mahkamah Rayuan Malaysia Di Putrajaya Dalam Negeri Wilayah Persekutuan Rayuan Civil No.: W-01(A)-815-11/ 2022 Antara Suriwong International Sdn. Bhd. (NO. Syarikat: 657034-U) Dan ... Perayu

Menteri Kewangan, Malaysia

Pengarah Jabatan Kastam Diraja Malaysia

Pengarah Negeri Jabatan Kastam DiRaja Malaysia Di Kedah ... Responden-Responden diputuskan oleh Mahkamah Rayuan Malaysia pada 05.09.2023] Dan [Dalam Perkara mengenai Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Wilayah Persekutuan Malaysia (Bahagian Rayuan Dan Kuasa-Kuasa Khas) Permohonan Untuk Semakan Kehakiman No.:W A-25 -331- 09/2021 Dalam Perkara mengenai surat Kementerian Kewangan kepada Suriwong International Sdn. Bhd. bertarikh 17.06.2021 yang pertama kali dihubungkan kepada Pemohon pada 12.7.2021 Dan Dalam Perkara surat Kementerian Kewangan bertarikh 17.8.2021 kepada Suriwong International Sdn. Bhd. yang pertama kali dihubungkan kepada Pemohon pada 21.8.2021 Dan Dalam Perkara mengenai Bil Tuntutan Jabatan Kastam Diraja Malaysia di Kedah kepada Suriwong International Sdn. Bhd. bertarikh 27.10.2020 di bawah seksyen 17(1) Akta Kastam 1967 dan seksyen 43 Akta Cukai Barang dan Perkhidmatan 2014 Dan Dalam Perkara mengenai Perintah Kastam (Duti Anti-Lambakan) 2014 dan manamana pindaan-pindaannya yang selanjut yang berkaitan Dan Dalam Perkara mengenai Notis Penamatan Akan Berlaku bagi Pengenaan Duti AntiLambakan terhadap Pengimportan bagi Cellulose Fibre Reinforced Cement Flat and Pattern Sheets yang Berasal atau Dieksport dari Negara Thailand Dan Dalam Perkara mengenai Akta Kastam 1967. Dan Dalam Perkara mengenai Akta Duti Timbal Balas dan Anti-Lambakan 1993. Dan Dalam Perkara mengenai Artikel-Artikel 5(1), 8 (1) dan 96 Perlembagaan Persekutuan Dan Dalam Perkara mengenai Akta Mahkamah Kehakiman 1964 khususnya kepada perenggan 1 Jadual tersebut Dalam Perkara mengenai Aturan 53 Kaedah-Kaedah Mahkamah 2012 Antara Suriwong International Sdn. Bhd. (No. Syarikat: 657034 -U) Dan ... Pemohon

Menteri Kewangan, Malaysia

Pengarah Jabatan Kastam Diraja Malaysia

Pengarah Negeri Jabatan Kastam DiRaja Malaysia Di Kedah ... Responden-Responden] KORAM: ABU BAKAR BIN JAIS, PMR RODZARIAH BINTI BUJANG, HMP VAZEER ALAM BIN MYDIN MEERA, HMP JUDGMENT OF THE COURT Introduction [1] This appeal concerns the legality of imposition of anti-dumping duty ("ADD") on the Appellant by the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Respondents on the importation of cellulose cement fibre products from a company in Thailand known as TPI Polene. [2] The Appellant contended that the imposition of ADD was wrong in law. Accordingly, the Appellant availed itself of the statutory procedure and applied to the $ 1^{\mathrm{st}} $ Respondent, the Minister of Finance, for remission of the ADD. The $ 1^{\mathrm{st}} $ Respondent refused the said application for remission. [3] The Appellant then filed an application for judicial review of the decisions of the Respondents. This application was dismissed by the High Court, and on appeal, affirmed by the Court of Appeal. Leave Questions [4] The Appellant applied for leave of this Court to appeal the Court of Appeal's decision. Leave to appeal was granted by this Court on 2 questions of law, namely:

Can anti-dumping duty be imposed on the import of a product from a foreign company based on a previous or one-off preliminary determination of dumping and injury that took place to determine the dumping and injury caused by 3 different foreign companies under the generic term "others"; where it has not been established and/or it is contested that: a) the product imported from the first mentioned foreign company has in fact caused a genuine injury to local/domestic industries producing similar material; or b) the product imported from the first mentioned foreign company in fact comes within the Harmonised System Code where anti-dumping duty was previously declared to be payable.

Whether the Minister in exercising his power under section 14A of the Customs Act 1967 and section 62 of the Goods and Services Tax Act 2014 to refuse remission of anti-dumping duty must give reasons for his decision, where there appears: a) to be a contest and/or ambiguity on whether the Harmonised System Code for a particular import product identified by a foreign government accurately reflects the nature of the imported goods; b) that the dumping margin, if any and in any event, is de minimis in terms of volume and nature. Material Facts [5] The facts relevant to the present case can be summarised as follows:

1 The Appellant was in the business of supplying building materials for local use. In or around 2016, the Appellant imported cellulose cement fibre from 2 exporters in Thailand namely:

Mahapant Fibre Cement Public Company Limited (later known as Shera Public Company Limited) [Shera]; and

TPI Polene Public Limited [TPI Polene].

2 The Appellant had engaged Samasia Trading as their tax agent to handle all matters in respect of customs declaration and clearance for importation of these products from Shera and TPI Polene.

3 It is undisputed that the import of cellulose cement fibre from Shera is subject to an ADD of 31.14% on the total cost, insurance and freight of each shipment. This is based on the Harmonised System code [HS Code] of 68.11.82.9000 as classified under the Customs (Anti-Dumping Duties) Order 2014, a subsidiary legislation made pursuant to the Countervailing and Anti-Dumping Duties Act 1993 ["CADD Act"] Paragraph 2 of the Order is the operative provision that imposes the applicable duties, which is specified in the Schedule to the Order. The Schedule reads as follows:

No.(2) Heading No./ Subheading according to H.S. Code (AHTN Code)(3) Description of goods(4) Country(5) Exporters/Producers(6) Rate of duty [% of the Cost, Insurance and Freight (CIF)]1.6811.82 100 and 6811.82 900 (6811.82.90 10 and 6811.82.90 90)Cellulose Fibre Reinforced Cement Flat Sheet and Pattern Sheets and specifically excluding external roofingThailand1. Mahapant Fibre-Cement Public Co. Ltd.

The Siam Fibre-Cement Co. Ltd.

Conwood Co. Ltd.

Others31.14%

9.15% Nil 31.14% Note: The words "Mahapant Fibre-Cement Public Co. Ltd." were later amended to "Shera Public Company Limited" following a name change vide the Customs (Anti-Dumping Duties) (Administrative Review) (Amendment) Order 2017.

4 The CADD Act was enacted by Parliament as a result of Malaysia's treaty obligations arising from her membership of the World Trade Organisation ("WTO"). This tax regime and its rationale, which is not revenue based, was very well explained by the Court of Appeal in Diler Miler Celik Endustru Ve Ticaret As Also Known As Diler Iron And Steel Co Inc v Menteri Kewangan & Ors [2025] 1 MLJ 694 in the following terms: [2] ... 'Dumping' means the importation of merchandise into Malaysia at less than its normal value as sold in the domestic market of the exporting country. If the relevant authorities can show that there is injury caused to the domestic market in the importing country, then anti-dumping duties may be imposed on the exporter for the export of the product to the importing country. [3] The mischief addressed is to level the playing field for a fair competition such that no one would be able to gain an unfair advantage over another in world trade and in the process cause or threaten to cause a material injury to or to retard the growth of the domestic industry in another member Country.

5 This pronouncement was similar to that of the Australian Federal Court in Irish Country Bacon (Cooked Meats) Ltd v Comptroller-General Of Customs And Another [1991] 104 ALR 661 where 'dumping' was defined as: Dumping occurs when the products of one country are exported to another country at less than their normal value in the country of export. Normal value is usually the price of like goods sold in the ordinary course of trade for consumption in the country of export. Dumping is condemned internationally as unfair trading if it causes, or threatens, material injury to the industry producing like goods in the importing country. The remedy against dumping is the imposition of dumping duties which can be up to the difference between the export price and the normal value.

6 Malaysia as a member state of the General Agreement on Tariff and Trade 1994 ["GATT"] and a party to the WTO has the obligation to ensure compliance with the provisions of Article VI of the GATT. Article VI of the GATT sets out the general principles to be applied by a member state in determining whether and to what extent anti-dumping and countervailing duties may be imposed on imports from another member state. The Hansard of 24.5.1993 shows that the then Deputy Minister of International Trade and Industry in tabling the CADD Bill had stated that it was important to ensure that it conformed with the principles under the GATT Code on Countervailing Duty and Anti-Dumping.

7 Hence, the CADD Act and the 2014 Order substantively implement in Malaysia the requirements of the GATT Agreement. A perusal of the CADD Act show that Parliament had as far as practicable incorporated the salient provisions of Article VI of GATT 1994 as locally enforceable anti-dumping laws. Hence, when seen against this historical background, the definition of "dumping" as "the importation of merchandise into Malaysia at less than its normal value as sold in the domestic market of the exporting country" in section 2 of the CADD Act is instructive. Thus, the imposition of ADD would level the competition and disincentivise the exporter from trying to injure the domestic market of any importing country with respect to the same or comparable merchandise.

8 From June 2016 to July 2019, the Appellant had imported mineral fibre cement from TPI Polene. Unlike Shera, TPI Polene is not a company that is expressly listed under Customs (Anti-Dumping Duties) Order 2014 to be subject to ADD. Nevertheless, in an abundance of caution, the Appellant's tax agent, Samasia Trading, had taken steps to enquire and verify the relevant HS Code of imported products from TPI Polene. The Department of Foreign Trade, Government of Thailand, responded to that query and informed Samasia Trading that the HS Code for TPI Polene is 68.11.89.9000. The Appellant's tax agent further obtained confirmation that no ADD was chargeable under this HS Code. Hence, during these 3 years (June 2016 to July 2019), the $ ^{2^{nd}} $ and $ ^{3^{rd}} $ Respondents did not impose any ADD on the Appellant for any of the aforesaid products imported from TPI Polene.

9 However, by letter dated 3.10.2019 the $ 3^{rd} $ Respondent informed the Appellant that it was going to conduct an audit on all goods imported by the Appellant for the period from 1.10.2016 to 30.9.2019. The Appellant fully cooperated and, as requested submitted documents to the $ 3^{rd} $ Respondent on 15.10.2019. In June 2020, the Appellant's director's statement was recorded as part of the $ 3^{rd} $ Respondent's audit and investigation.

10 On 27.10.2020, the Appellant received a Bill of Demand from the $ ^{3 rd} $ Respondent issued pursuant to section 17(1) of the Customs Act 1967 and section 43 of the Goods and Services Tax Act 2014 [GST Act 2014] ["Bill of Demand"]. The Bill of Demand stated that the Appellant had committed an offence by using a tariff code which is inaccurate ("Syarikat dikesan melakukan kesalahan menggunakan kod tariff tidak tepat"). Hence, the $ ^{3 rd} $ Respondent demanded a sum of RM2,195,184.28 being the shortfall in the payment of duty.

11 The Appellant lodged an appeal to the $ ^{1 \mathrm{st}} $ Respondent on 3.11.2020 for exemption/remission of the duty in the said Bill of Demand. Following internal consultation between the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents, the Appellant was informed by the $ 1^{\mathrm{st}} $ Respondent vide letter dated 17.6.2021 that the Appellant's appeal was dismissed. No reasons were provided in the said letter. The Appellant made a further appeal to the $ 1^{\mathrm{st}} $ Respondent, which was also dismissed.

12 Aggrieved by the decisions of the Respondents, the Appellant commenced the judicial review proceedings, which is the subject matter of the present appeal, to essentially:

quash the Bill of Demand issued by the $ 2^{\mathrm{n d}} $ and $ 3^{\mathrm{r d}} $ Respondents; and

quash the decision(s) of the $ 1^{st} $ Respondent in dismissing its appeal for remission or exemption of the Bill of Demand. Decision of the High Court [6] The grounds of decision of the High Court in dismissing the Appellant's judicial review application can be summarised as follows.

Customs' decision to impose anti-dumping duty

1 The High Court's decision was focused primarily on whether the $ 2^{nd} $ and $ 3^{rd} $ Respondents had the power to conduct an audit on the Appellant's declaration of goods imported from Thailand, and whether they had the power to impose the ADD post-audit.

2 The learned Judge of the High Court found that the Appellant had a duty in law to provide the correct HS Code when importing goods from TPI Polene and if it is found to be wrong due to inadvertence, error, or any other reason, the tax can be retrospectively imposed. In this regard, the learned trial judge found the HS Code declared by the Appellant was wrong. Thus, the learned High Court Judge accepted the Respondents' contention that they had legal basis for imposing ADD on the products imported from TPI Polene.

3 The High Court further held that, whilst TPI Polene was not expressly named as an exporting company whose products are liable to imposition of ADD under the Schedule to the Customs (Anti-Dumping Duties) Order 2014, the category of "Others" in the said Schedule meant that "any company other than those expressly named would fall under this category" and be liable to the maximum ADD of 31.14%.

(ii) Minister's refusal to remit the impugned duty

4 On the decision by the $ 1^{\mathrm{st}} $ Respondent to reject the appeal for remission of the said duty, the learned High Court Judge found that the Appellant's contention that they had used the correct HS Code (which was one out of five grounds advanced by the Appellant in their appeal) was misconceived and incongruent with the purpose or significance of the remission provisions. This is because the High Court Judge found that the remission section "envisages that lawful duty was imposed as opposed to duty unlawfully imposed" as the premise on which the Minister of Finance exercises his power of remission. The High Court did not go on to consider the other grounds proffered in the said appeal letter to the $ ^{1 \mathrm{st}} $ Respondent.

5 The High Court considered the $ 1^{\mathrm{st}} $ Respondent's reason for refusing the appeal for remission stated in his affidavit filed in the judicial review proceedings - "that if remission was granted it would be bad precedent for the future " and held that the $ 1^{\mathrm{st}} $ Respondent was entitled to so decide, without more.

6 The learned High Court Judge also found that the Appellant did not have the right to an oral hearing, and further, that the $ 1^{\mathrm{st}} $ Respondent had no duty to give reasons for his refusal to remit the impugned ADD. Decision Of The Court Of Appeal [7] The Court of Appeal affirmed the High Court's decision and found as follows:

On the imposition of anti-dumping duty by Customs

that, the necessary facts and evidence in relation to the ground of illegal imposition of the ADD were not included in the statement filed pursuant to Order 53 rule 3 (2) of the Rules of Court 2012. Hence it cannot be raised at all by the Appellant;

that, on the issue as to whether the inclusion of the category of "Others" under the Schedule to the Customs (Anti-Dumping Duties) Order 2014, goes against the object and purpose of the CADD Act, the Court of Appeal held that: "The inclusion of a residual category is a frequently used drafting tool typically employed to prevent avoidance behaviour on the part of the persons intended to be regulated. If such a category did not exist, it would be a simple expedient for a foreign producer to incorporate a new entity to undertake production and to escape duties, with the attendant result of the law being in a perpetual state of lag behind unscrupulous and canny producers. That could not be intent of parliament (sic) when it enacted the Countervailing and Anti-Dumping Duties Act

In our view, the use of a residual category entitled "others" in this context would be entirely in accord with the object and purpose of the parent Act."

The Court of Appeal also rejected the Appellant's contention that the $ 2^{n d} $ and $ 3^{r d} $ Respondents cannot unilaterally impose the ADD in view of the fact that there was certification made by Department of Foreign Trade, Thailand, confirming that the HS Code declared for TPI Polene as 68.11.89.9000, was the correct tariff code. The Court of Appeal held that the certification appears to be a document used for the purposes of exporting goods out of Thailand and no evidence was led as to the effect of this certification under the laws of the Kingdom of Thailand. In any event, the Court of Appeal held that the certification by the Government of Thailand does not bind Malaysia.

(ii) On the Minister's Decision to refuse remission

On duty to give reasons, the Court of Appeal concluded that the duty to give reasons is contingent on the facts and held that since the Appellant was in fact given the right to be heard, and the results of the preliminary audit was explained by Customs to the Appellant in a roundtable discussion. Hence, the Court of Appeal held that the refusal by the Minister to allow the Appellant's appeal was straightforward in nature and the circumstances of the case would not warrant a deeper and further explanation. To this end, the Court of Appeal surmised that since the Appellant was treated fairly by Customs, the decision of the $ ^{1 \mathrm{st}} $ Respondent to reject the application for remission was "not a bolt out of the blue that called for reasons to be given".

The Court of Appeal accepted the Minister's contention that the use of the wrong tariff code, i.e. the HS Code, was wilful and that since the Appellant chose to rely on the advice of a tax agent to declare the goods under a different tariff code, the refusal by the $ ^{1^{\mathrm{st}}} $ Respondent to allow the remission of the duty payable is not disproportionate. The issues before this Court [8] The 2 questions of law, on which leave to appeal was granted, can be summarised as follows:

Question 1 - relates to the basis of imposition of a maximum 31.14% in ADD through the category of "others"; and

Question 2 - deals with Ministerial discretion to remit the ADD and duty to give reasons for that decision. Question 1. [9] The legislative mechanism under the CADD Act for the determination of the ADD rate and its imposition on products imported into Malaysia is well explained by the Court of Appeal in Diler Miler Celik Endustru Ve Ticaret AS (also known as Diler Iron and Steel Co Inc) in the following terms: [1] In the field of international trade, States that are members of the World Trade Organisation ('WTO') pledge themselves to be fair to other States whilst promoting their own domestic markets. It is an example of a man, left to his own devices, has a way of gravitating towards promoting his own interest at the expense of others. In international trade, States recognise this danger operating at the international arena where one country and its members may dump its products in another at a price lower than the price in its own home market so as to injure the local market of another country. [2] Price is no longer what a buyer is prepared to pay for a seller's product. If one sells one's product in another country below the price of that comparable product and trade in one's own country then that is dumping of the product in the importing country. 'Dumping' means the importation of merchandise into Malaysia at less than its normal value as sold in the domestic market of the exporting country. If the relevant authorities can show that there is injury caused to the domestic market in the importing country, then anti-dumping duties may be imposed on the exporter for the export of the product to the importing country. [3] The mischief addressed is to level the playing field for a fair competition such that no one would be able to gain an unfair advantage over another in world trade and in the process cause or threaten to cause a material injury to or to retard the growth of the domestic industry in another member Country. [4] Whilst the concept is easy to understand, the mechanics and methodology of its calculation are more complicated and as they say the devil is in the details. In the present dispute, it is over the import of Steel Concrete Reinforcing Bar Products ('Rebar') to Malaysia by Malaysian importers from a company in Turkey. Some members of the Malaysian Steel Association ('MSA') were aggrieved with the sale of the Rebar in our domestic market from Turkey which they said were sold at a price below the 'normal value' of the product in Turkey and thus Dumping in nature. [5] The problem here is that the producer in Turkey did not export direct to importers in Malaysia but through its wholly-owned subsidiary in Turkey. At the core of the complaint is the calculation of the 'export price' because the difference between that and the 'normal value' of the product would be the 'Dumping Margin' if the 'normal value' exceeds the 'export price'. [6] The relevant statute providing for this imposition of Anti-Dumping Duties is the Countervailing and Anti-Dumping Duties Act 1993 ('the Act') and the Regulations made there under and our international commitments under the WTO Anti-Dumping Agreement ('AD Agreement'). The remedy in the form of duties imposed would level the competition and disincentivise the exporter from trying to injure the domestic market of any importing country with respect to the same or comparable merchandise. DECISION OF THE FINANCE MINISTER [7] Before the Finance Minister publishes in the gazette the relevant order for the imposition of the Anti-Dumping Duties on specific merchandise for a specific period of time, there is first an investigation to be undertaken by the Investigating Authority ('IA') under the Act which may investigate pursuant to a complaint by the local producers in the importing country and in this case Malaysia. [8] This elaborate process may involve the hauling and trawling of hundreds of thousands of trade entries in the records kept by the exporter to Malaysia as well as the answering of the questionnaires furnished by the IA. The findings of the IA are published in the form of a Preliminary Determination before a Final Determination on dumping and injury is made. [9] As the calculation of the 'export price' requires the taking into consideration of various cost factors and making it comparable where trade and ex-price from the factory is concerned, the IA are obliged to disclosed the data, information and calculations it had used for arriving at its Dumping Margin calculation so that the Anti-Dumping ('AD') Duties may be verified by the party on whom it is imposed. Section 18(8) of the Act provides that the Government shall indicate to the parties in question the information that is necessary to ensure a fair comparison. [10] A few parties are involved on the various stages of determining the AD Duties as provided for in s 30 of the Act. A complaint in the form of a petition is presented to the Minister of International Trade and Industry (MITI') under s 30(1) of the Act. The MITI appoints authorised persons or officers in writing to carry out the necessary investigation under the IA under s 30(2) of the Act. The fifth respondent MSA was the party that filed an AD Petition to the MITI on behalf of Malaysia Steel Works (KL) Bhd, Amsteel Mills Sdn Bhd and Antara Steel Mills Sdn Bhd for the initiation of an AD investigation on the imports of the Rebar originating or exported from Singapore and Turkey. [11] Under s 30(3) of the Act any finding of an investigation, whether for the purpose of a Preliminary or Final determination, or a review, shall be forwarded to the MITI. The said Minister shall make a recommendation to the Minister of Finance ('MOF') who shall make a determination or decision under s 30(4). It is the Government of Malaysia that makes a final determination under s 25 as to whether there is a Dumping Margin and if so the AD Duties to be imposed. The AD Duties were imposed by the MOF signing the Customs (Anti-Dumping Duties) Order 2020 PU (A) 22 dated 21 January 2020 ('MOF decision'). The collection of the AD Duties imposed under the Act shall be by an officer of custom under the Customs Act 1967 as provided for in s 30(5). [12] Under s 34A(1) of the Act an interested party who is not satisfied or who is aggrieved by the decision of the Government in relation to a Final Determination or a Final Administrative Review Determination under the Act shall have the right to refer such matter to the High Court for judicial review under the Rules of Court 2012. [10] Now, TPI Polene did not participate in the investigation that culminated in the Customs (Anti-Dumping Duties) Order 2014, and accordingly TPI Polene is not named in Column 5 of that Order as one of the recognized "Exporters/Producers", where the relevant part of it reads: ANTI-DUMPING DUTIES

No.(2) Heading No./ Subheading according to H.S. Code (AHTN Code)(3) Description of goods(4) Country(5) Exporters/Producers(6) Rate of duty [% of the Cost, Insurance and Freight (CIF)]1.6811.82 100 and 6811.82 900 (6811.82.90 10 and 6811.82.90 90)Cellulose Fibre Reinforced Cement Flat Sheet and Pattern Sheets and specifically excluding external roofingThailand1. Mahapant Fibre-Cement Public Co. Ltd.

The Siam Fibre-Cement Co. Ltd.

Conwood Co. Ltd.

Others31.14%

9.15% Nil 31.14% [11] In that 2014 Order, Item 4 under the $ 5^{\mathrm{th}} $ Column titled "Exporter/Producers" is categorized as "Others". The ADD imposed on the Appellant for its importation of cellulose cement fibre from TPI Polene from 2017 to 2019 is under this "Others" category. To this end, the Appellant submits that the imposition of the maximum ADD of 31.14% under the "Others" category has the effect of:

ignoring the need for positive evidence of actual injury and the need for demonstration of a causal relationship between the dumped imports and the injury as required in Articles 3.1 and 3.4 of Article VI of GATT 1994 and section 22 A(1) of CADD Act;

(ii) ignoring the prohibition against imposition of anti-dumping duty based on allegations, conjecture or remote possibility but must be clearly foreseen and imminent as required in Article 3.7 of Article VI of the GATT and section 22 A(5) of the CADD Act;

(iii) ignoring the need for the identity of each known exporter or foreign producers as required in Article 5.2 of Article VI of the GATT;

(iv) ignoring the need for the volume of dumped imports to be determined as required in Articles 3.3 and 5.8 of Article VI of GATT 1994 and sections 20, 26 and 27 of the CADD Act;

ignoring the permissive nature of such imposition and the need to consider a lesser level that is not more than what is necessary to remove the injury to the domestic industry as required in Article 9.1 of Article VI of the GATT and section 27A of CADD;

(vi) ignoring the need to specifically name the supplier of the product where the duty is imposed, as required in Article 9.2 of Article VI of GATT;

(vii) Ignoring the need to conduct a fresh/expedited review for the determination of individual margins as required in Article 9.5 of Article VI of the GATT and section 28B of the CADD Act. [12] It must be noted that the Appellant is not contending that the $ 2^{nd} $ and $ 3^{rd} $ Respondents do not have the power to impose anti-dumping duty vide a post-audit. Instead, their contention is that the basis of imposition of the ADD on the import of TPI Polene cellulose fibre products is unsupported by legislative sanction, and instead it is by way of intendment through the residual category of "Others" in the 2014 Order. The Appellant argues that imposition of ADD in this manner is contrary to the purpose and object of CADD 1993 and Article VI of the GATT. [13] We find merit in the Appellant's contention. Rules of statutory interpretation demands that subsidiary legislation must not be read in vacuo. Rather such interpretation must be done harmoniously in a composte manner by focusing on the underlying purpose and intent of the relevant law, in this case the anti-dumping regime in the CADD Act. The process leading to the imposition of ADD must be stringent and the provisions of the CADD Act must be mandatorily complied with. Any failure or misstep to accord a fair process to affected parties the have in past drawn judicial intervention. [14] The fundamental premise to the imposition of ADD is that there must be dumping activity and injury caused to the domestic industry. As alluded to earlier, Article VI of GATT is binding on Malaysia and anti-dumping duty can only be imposed based on the following key criteria of GATT:

Article 3.1 - determination of injury shall be based on positive evidence and involve an objective examination of volume, effect and consequent impact on dumped imports on prices in the domestic market;

Article 3.3 - authorities to identify if margin of dumping is de minimis and hence no necessity to impose ADD;

Article 3.4 - examination of the impact of dumped imports shall include an evaluation of all relevant economic factors and indices bearing on the state of the industry;

Article 3.5 - a demonstration of a causal relationship between the dumped imports and the injury to the domestic industry;

Article 3.7 - determination of threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility;

Article 5.1 - an investigation as to any alleged dumping shall be initiated upon a written application by or on behalf of the domestic industry;

Article 5.2 - the application submitted by the domestic industry must include amongst others identity of each known exporter or foreign producers;

Article 5.8 - if the volume of dumped imports, actual or potential, or the injury is negligible, then any investigation must be terminated;

Article 6.1 - all interested parties in an investigation must be given notice and ample opportunity to present in writing all evidence which they consider relevant;

Article 6.2 - all interested parties shall have a full opportunity for the defence of their interests;

Article 6.10 - the authorities shall determine an individual margin of dumping for each known exporter or producer;

Article 8 an investigation may be suspended or terminated if the exporter makes a voluntary price undertaking to revise its prices or to cease exports;

Article 9.1 - it is desirable that the imposition be permissive (not mandatory) and less ADD be imposed so long as it is adequate to remove the injury to the domestic industry;

Article 9.4 - any ADD imposed on exporters or producers not previously included in the examination shall not exceed the weighted average margin of dumping established with respect to the selected exporters or producers - provided that any zero and de minimis margins shall be disregarded;

Article 9.5 - if an exporter or producer has not exported the product to the importing member during the period of investigation, the authorities of the importing member shall promptly carry out a review for the purpose of determining individual margins of dumping on an accelerated basis, and no anti-dumping duties shall be levied on imports from such exporters or producers while the review is being carried out; and

Article 11.1 - An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury. [15] The CADD Act has, as far as practicable, incorporated and implemented the salient provisions of Article VI of GATT as locally enforceable anti-dumping laws, which substantially mirror the key provisions of Article VI of GATT. [16] Similar to the provisions in Article VI of GATT, prior to the imposition of an anti-dumping duty, the CADD Act provides for a comprehensive and detailed process of inquiry and investigation where the "normal value" and the "export price" would be determined, based on the following principles as provided in section 18 of the CADD Act:

A fair comparison shall be made between the export price and the normal value;

The comparison shall be made at the same level of trade, normally at ex-factory level, and in respect of sales made at as nearly as possible the same time and due account shall be taken of other differences that affect price comparability;

Where the normal value and the export price as established are not on a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors that are claimed, and demonstrated, to affect prices and price comparability. [17] As to the amount of ADD to be imposed, section 15 (2) of the CADD Act provides that: The amount of anti-dumping duty to be imposed —

shall be equal to the dumping margin determined to exist with respect to the subject merchandise; or

if the Government determines that a lower anti-dumping duty will be sufficient to eliminate the injury, may be such lower duty." [18] In other words, the process of inquiry envisages an exercise of discretion on part of the Government to adjust the quantum of duty so much as it is sufficient to eliminate the injury to the local industry. It does not give the Government a carte blanche to impose anti-dumping duties as a matter of executive policy. [19] Section 20 of the CADD Act provides that the Government may initiate an investigation to determine the existence, degree and effect of any alleged dumping upon the submission of a written petition by or on behalf of the domestic industry producing the like product. A petition is commonly filed by trade representatives of the particular domestic industry such as trade associations or relevant business manufacturers. It is only in "special circumstances" the Government may initiate a process of inquiry on its own accord without the presence of any complaint. [20] If an enquiry is initiated, whether upon a complaint or by the Government of its own accord, it is mandatory for the Government to notify the appropriate interested parties and publish a notice of initiation of investigation as is required under section 20(8) of the CADD Act, which reads: Where the Government decides to initiate an investigation under subsection (1) or subsection (7), it shall notify the appropriate interested parties and publish a notice of initiation of investigation. [21] The material factors to be considered to determine the injury and causal link of a particular merchandise on local industry are also set out by Parliament in the CADD Act. Section 22A(1) prescribes the need for an objective examination of both the volume and effect of the imports. Section 22A(5) expressly prescribes that such examination shall be based on facts and not merely on allegation, conjecture or remote possibility. [22] Factors that militate against the imposition of ADD are also expressly provided for under Sections 26 and 27 of the CADD Act. These provisions state that any investigation into anti-dumping activities may be terminated if:

there are changed circumstances; or

the dumping margin is de minimis; or

the volume of imports of the subject merchandise, actual or potential, or the injury, is negligible. The investigation into the imposition of ADD shall also be suspended to make way for consideration of a price undertaking to be provided by the exporter of the subject merchandise. [23] The legislative framework of the CADD Act, which incorporates Article VI of GATT clearly shows that imposition of anti-dumping duty is not envisaged to be imposed unilaterally by one party. Afterall, anti-dumping laws in any country is a product of bilateral understanding pursuant to the GATT and not a sheer local tax legislation and must not be construed as so. The consultation, inquiry, impact assessment process takes into account the multifarious and multifaceted interests of various parties, namely, the Government, the local industry, the importer, the exporter and the foreign governments involved. The process of determining ADD envisages due process that must be undertaken on part of the Government to adjust the quantum of duty so much as it is sufficient to eliminate the injury to the local industry. [24] Now, of particular importance to this case is section 28B of the CADD Act where it is provided that if a particular exporter or producer whose export of merchandise are subject to a definitive anti-dumping duty but who has not exported such merchandise to Malaysia during the period of investigation, he shall be entitled to an expedited review in order that the Government may establish an individual anti-dumping duty rate for the exporter or producer. In the meantime, and we stressed, no anti-dumping duty shall be imposed while the expedited review is being carried out. This is an extremely important provision to ensure that all interested parties are not sidelined from investigation and given a right to be heard. It is worth noting that neither the Appellant nor TPI Poline partake in the inquiry and investigation leading to the Gazette publication of the 2014 Order. In fact, the Appellant imported the cellulose fibre products only in 2017 till 2019. Hence, before the $ 2 ^{n d} $ and $ 3 ^{r d} $ Respondents imposed any ADD on the Appellant, there ought to have been an expedited review in order for an individual anti-dumping duty rate for TPI Poline to be ascertained in accordance with the provisions of the CADD Act alluded to earlier. [25] Thus, to that extent the reliance by the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Respondents to impose the maximum 31.14% ADD using the "Others" category in the 2014 Order is wrong in law. There ought to have been a separate inquiry pursuant to section 28B of CADD. The $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Respondents cannot impose anti-dumping duty on a blanket basis on the import of a product based on a previous or one-off preliminary determination of dumping and injury that took place some 3 years before TPI Poline's export of the products to Malaysia, and that too in relation to products imported by 3 different foreign companies under the generic term "Others" where it has not been established and/ or it is contested that: i. the product imported from the first mentioned foreign company has in fact caused a genuine injury to local/domestic industries producing similar material; or ii. the product imported from the first mentioned foreign company in fact comes within the Harmonised System Code where anti-dumping duty was previously declared to be payable. Accordingly, for the reasons state above, we would answer Question 1 in the negative. Question 2 [26] As we have answered Question 1 in the negative, we do not find it necessary to answer Question 2, as the issue of the Appellant's challenge on the decision(s) of the $ 1^{\mathrm{st}} $ Respondent in refusing the remission of the duty is no longer relevant. Conclusion [27] In the premise of the foregoing, we allow the appeal and set aside the Orders of both the High Court and Court of Appeal, and in substitute thereof we order as follows:

A declaration that the $ 3^{rd} $ Respondent's decision vide Royal Malaysian Customs Department in Kedah's Bill of Demand to Suriwong International Sdn. Bhd. dated 27.10.2020 ("the Bill of Demand") pursuant to section 17(1) of the Customs Act 1967 and section 13 of the Goods And Services Tax Act 2014 is null and void and of no effect.

Costs here and below in the sum of RM100,000.00 to be paid by the Respondents to the Appellant.

In the event of the Appellant having paid any of the duty contained in Bill of Demand, the same shall be refunded by the Respondents to the Appellant within 30 days of date hereof. Dated this $ 2 9^{\mathrm{th}} $ day of June 2026. (Vazeer Alam Mydin Meera) Federal Court Judge Putrajaya 35 Counsel:

Dato'Dr Gurdial Singh Nijar

Dato'Dr. Joshua Kevin

Abraham Au

Leng Wie Mun

Reuben Ong [Messrs. Kevin & Co.]

SFC Rahazlan Affendi bin Abdul Rahim

SFC Farah Shuhada binti Ramli

FC Ahmad Ilham Haridz bin Mohd Padli [Jabatan Peguam Negara]