Suriwong International Sdn Bhd v Menteri Kewangan Malaysia & Ors

Appellant(s): Suriwong International Sdn. Bhd.

Respondent(s):

• Menteri Kewangan, Malaysia
• Pengarah Jabatan Kastam Diraja Malaysia
• Pengarah Negeri Jabatan Kastam Diraja Malaysia Di Kedah

• YAA Datuk Seri Abu Bakar Bin Jais
• YA Dato Rhodzariah binti Bujang
• YA Dato' Seri Vazeer Alam bin Mydin Meera

• The appellant imported cellulose cement fibre products from a Thai company (TPI Polene) which was not expressly listed as a subject exporter under the Customs (Anti-Dumping Duties) Order 2014, unlike another exporter (Shera) which was named and expressly subject to anti-dumping duty (ADD).
• Following an audit, the customs authorities issued a Bill of Demand imposing the maximum ADD rate of 31.14% on the appellant's imports from TPI Polene under the residual "Others" category in the Order, and the Minister of Finance subsequently refused the appellant's application for remission of this duty without giving reasons.
• The appellant's judicial review application challenging both the Bill of Demand and the Minister's refusal to remit was dismissed by the High Court and this dismissal was affirmed by the Court of Appeal, leading to this further appeal to the Federal Court.

• Whether ADD could lawfully be imposed on imports from an exporter not named in the 2014 Order, based on a residual "Others" category derived from a preliminary determination made years earlier in respect of different named exporters, without a fresh finding of dumping or injury specific to that exporter.
• Whether the statutory scheme under the Countervailing and Anti-Dumping Duties Act 1993 (CADD Act), which incorporates Malaysia's obligations under Article VI of GATT, permits blanket imposition of the maximum duty rate on new/unnamed exporters without an expedited individual review as contemplated under section 28B of the CADD Act.
• Whether the Minister, in refusing remission of ADD under section 14A of the Customs Act 1967 and section 62 of the Goods and Services Tax Act 2014, was obliged to give reasons for his decision.

• The Court held that the imposition of the maximum ADD rate of 31.14% on the appellant's imports from TPI Polene under the "Others" category was wrong in law, as the CADD Act (implementing Article VI of GATT) requires a rigorous process of inquiry, injury determination and individualised assessment before ADD can be imposed on a previously unexamined exporter.
• The Court found that section 28B of the CADD Act mandates an expedited review to establish an individual anti-dumping duty rate for an exporter who did not export merchandise to Malaysia during the original investigation period, and no ADD may be imposed pending such review; this was not undertaken in respect of TPI Polene.
• Having answered the first leave question in the negative, the Court found it unnecessary to address the second question on the Minister's duty to give reasons; the appeal was allowed, the Bill of Demand was declared null and void, and costs plus refund of any duty paid were ordered in the appellant's favour.