Johannesburg — A LANDMARK judgment by the Supreme Court of Appeal may have far-reaching implications on the expiry of antidumping duties for companies, say tax analysts.

The court recently upheld an appeal from the Durban High Court concerning the duration of antidumping duties imposed by the finance minister under the provisions of the Customs and Excise Act of 1964.

Finance Minister Trevor Manuel had imposed an anti-dumping duty in respect of paper products, in particular A4 paper imported from Singapore, by notice in the Government Gazette on May 28 1999. The duty was imposed "with retrospective effect to November 27 1998".

In the case in question, the company, Progress Office Machines, dealt in paper products, some of which it imported to sell on the local market. In 2004 the company imported four consignments of paper from Indonesia through the port in Durban. It paid the duty on these imports before clearance. No antidumping duty was imposed on the consignments, though they were examined by customs officials.

The company subsequently received a letter from the South African Revenue Service concerning the import of the paper.

The letter said that an investigation had shown that the company had contravened certain provisions of the Customs and Excise Act and that antidumping duty was payable under schedule 2, as well as VAT in respect of the four consignments.

It was common cause between the company and the International Trade Administration that the antidumping duty imposed by the f inance minister was for a five-year period. The minister imposed the duty without stipulating the period of time for which it would be operative.

The antidumping regulations, which came into operation on June 1 2003, deals with the duration of duties and regulations, and provides that antidumping duties remain in place for not more than five years from the imposition or the review thereof.

Though the period was not stipulated in the notice, the appeal court held that the operation of the duty should be limited to five years.

In this matter, the court had to consider whether the period commenced on May 28 1999 (the date of the notice) or on November 1998 (the date from which the amendment was to have "retrospective" effect).

The appeal court held that the finance minister imposed the antidumping duty by notice on May 28 1999 with retrospective effect to November 27 1998.

The definitive antidumping duty was therefore in place from November 27 1998. The effect was that the duty had no "force and effect" on November 27 2003.

Freek van Rooyen of commercial law firm Jan S De Villiers said that on the strength of the judgment, the five-year period must be calculated from the date the provisional duty was imposed if the antidumping duty was made retrospective.

"The effect is that the duty may have expired at an earlier date and importers may have been paying antidumping duties after the expiry of the five- year period," Van Rooyen said.

Also, a sunset review investigation or duty that remains in place pursuant to a review initiated after the lapsing of the five- year period, might be invalid and of no force and effect, he said.