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2016 (1) TMI 287 - HC - CustomsImposition of anti-dumping duty on Acrylonitrile Butadiene Rubber (NBR) imported from Korea RP. - Levy of anti-dumping duty on imports of Phenol. - Method and procedure - Period of review - Held that - India is a signatory to Article VI of GATT and the said Agreement of 1994. In pursuance of the same, amendments were made in the said Act (customs Tariff Act, 1975) in 1995 and, inter alia, new section 9A was inserted. The said rules have been framed in exercise of powers conferred by section 9A(6) of the said Act. Therefore, when we consider, inter alia, section 9A of the said Act and the provisions of the said Rules, the conclusions outlined in G.M. Exports (2015 (9) TMI 1162 - SUPREME COURT) would come into play. It follows that if any of the said rules are vague or ambiguous then recourse could be had to the said Agreement as a legitimate aid to construction and any such ambiguity could be resolved in favour of a meaning that is consistent with the provisions of the said Agreement. Furthermore,if there be any difference between the language employed in the said rule and a corresponding provision of the said Agreement, the former is to be construed in the same sense as that of the said Agreement. Now, Article 11.4 of the said Agreement inter alia stipulates that the review contemplated under Article 11 shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review. Rule 23(2) of the said rules is modelled on Article 11.4 of the said Agreement. Thus, while construing rule 23(2) if any ambiguity is noticed, the same can be resolved by having recourse to Article 11.4. The use of the word normally in Article 11.4 is of great significance. It means that the review under Article 11 is to be completed expeditiously and normally within 12 months but that is not an inflexible period. Considered in this light, and to bring the provisions of rule 23(2) in harmony with Article 11.4, rule 23(2) would have to be read as any review initiated under sub-rule (1) shall normally be concluded within a period not exceeding twelve months from the date of initiation of such review. And, when the first proviso of rule 17(1) is applied (with necessary changes) to the case of a review it becomes immediately clear that the period of 12 months can be further extended by the Central Government in its discretion by 6 months but only if special circumstances exist. Such a construction would be in keeping with the conclusions enumerated in G.M. Exports (supra). That being the case, we hold that the Central Government has the power to grant an extension of 6 months for concluding a review. We, however, are making it clear once again that we have not examined and were not called upon to examine whether this power has been exercised legitimately. The provision of extension of time contained in the first proviso to rule 17(1) can be pressed into service for extending the time of 12 months for concluding a review under rule 23(2) because of the mutatis mutandis prescription in rule 23(3). As such, the writ petitions are liable to be dismissed and they are dismissed - Decided against the appellants.
Issues Involved:
1. Imposition of anti-dumping duty on Acrylonitrile Butadiene Rubber (NBR) imported from Korea RP. 2. Imposition of anti-dumping duty on imports of Phenol. 3. Validity of review proceedings conducted beyond the stipulated 12-month period. Detailed Analysis: Issue 1: Imposition of Anti-Dumping Duty on NBR Imported from Korea RP In the first two writ petitions, the challenge was to the Office Memorandum No. 354/179/2002-TRU (Pt.V) dated 24.12.2014. The petitioners sought the quashing of proceedings conducted after the end of 12 months from the date of initiation of the review initiated by notice bearing F.No. 15/29/2013 dated 31.12.2013. The review was initiated to examine whether the expiry of anti-dumping duty on NBR would lead to continuance or recurrence of dumping and injury to the domestic industry. The Designated Authority requested an extension of time by six months, which was granted by the Central Government through the impugned Office Memorandum. The final findings were issued on 30.06.2015, recommending the extension of anti-dumping duty, followed by a Notification dated 04.09.2015 imposing the duty. Issue 2: Imposition of Anti-Dumping Duty on Imports of PhenolIn the third writ petition, the challenge was to the proceedings conducted after the end of 12 months from the date of initiation of the review initiated by notice No. 15/21/2013-DGAD dated 28.10.2013. The petitioners sought the quashing of the review proceedings and all steps pursuant thereto, similar to the challenge in the first two writ petitions concerning NBR. Issue 3: Validity of Review Proceedings Conducted Beyond the Stipulated 12-Month PeriodThe common point for consideration in all writ petitions was whether the review proceedings could be extended beyond the stipulated 12-month period as per rule 23(2) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. The petitioners argued that the review had to be concluded within 12 months, and no extension was permitted by law. The respondents contended that rule 23(3) allowed the provisions of rule 17, including the extension provision in the first proviso to rule 17(1), to apply mutatis mutandis to a review. The court examined whether the provision of extension of time in the first proviso to rule 17(1) could be applied to extend the 12-month period for concluding a review under rule 23(2). The petitioners relied on the Supreme Court decision in Commissioner of Customs, Bangalore v. G.M. Exports, which emphasized the mandatory nature of time limits due to the use of words such as "shall" and "not exceeding." The respondents argued that Article 11.4 of the WTO Agreement, which uses the term "normally," allowed for extensions beyond 12 months, aligning with the mutatis mutandis application of rule 17 to rule 23. The court considered the meaning of mutatis mutandis, which implies necessary changes in points of detail, and examined relevant case law, including Ashok Service Centre v. State of Orissa, Janba v. Gopikabai, and Rajasthan State Industrial Development and Investment Corporation v. Diamond & Gems Corporation Ltd. The court concluded that rule 17, including its extension provision, applied to reviews under rule 23 with necessary changes. The court also referred to the recent Supreme Court decision in G.M. Exports, which supported the interpretation that the period of 12 months could be extended by a further 6 months, aligning with the WTO Agreement. The court held that the Central Government had the power to grant an extension of 6 months for concluding a review. However, it did not examine the legitimacy of the exercise of this power, leaving it open for the petitioners to challenge the extensions on merits before an appropriate forum. The writ petitions were dismissed, and the parties were left to bear their own costs.
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