2018 (4) TMI 1726 - HC - Customs

ADD - initiation of Sunset Review - continuation of existing Anti-Dumping Duty so as to continue protection available to domestic industry against the alleged dumping of products Soda-Ash, from Turkey and Russia - section 9(A) of Customs Tariff Act, 1975 - HELD THAT - We have no doubt in our mind qua availability of judicial review of such a decision and hence when judicial review is warranted, it is also required to be seen to it that the same exercise may not result into empty formality or futility and create an irretrievable situation. The Court is also mindful of the fact that court by granting relief would be directing the authorities to continue Anti-Dumping Duty and to initiate Sunset Review proceeding without there being any opportunity of being heard to the otherside, but at the sametime, looking to the dearth of time and when the petitioners cannot be held to be in any way contributory in passage of time, as they have approached the Court within time, it becomes Court s duty to see to it that balance of convenience is struck so as to avert any irreparable injury to eitherside. For safeguarding the interest of those who are likely tobe affected by this order, we direct the concerned respondents to make it explicitly clear to all the concerned that, the Notification/s that may be issued pursuant to our this order would be subject to result of these petitions and will entail the refund of duty that may be levied in case of failure of the petitioners in these petitions.

Summary

Issues Involved:
1. Validity of the impugned order dated 5/4/2018 rejecting the application for Sunset Review.
2. Requirements and legal provisions for initiating a Sunset Review under Section 9A(5) of the Customs Tariff Act, 1975 and Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
3. Judicial review of the decision to reject the application for Sunset Review.
4. Interim relief and continuation of Anti-Dumping Duty pending the outcome of the judicial review.

Detailed Analysis:

1. Validity of the Impugned Order:
The petitions challenge the order dated 5/4/2018 passed by the respondent No.2, which rejected the petitioners' application dated 29/1/2018 for a Sunset Review of the existing Anti-Dumping Duty on Soda-Ash from Turkey and Russia. The petitioners argued that the application contained substantial material indicating the need for a Sunset Review, which the respondent No.2 failed to consider properly.

2. Requirements and Legal Provisions for Sunset Review:
The original notification imposing Anti-Dumping Duty was issued on 18/4/2013, and as per Section 9A of the Customs Tariff Act, 1975, the duty ceases after five years unless a review is initiated. The relevant provisions allow for a review, termed as Sunset Review, to determine if the cessation of the duty would lead to the continuation or recurrence of dumping and injury to the domestic industry. Rule 23(1B) stipulates that any definitive anti-dumping duty shall be effective for a period not exceeding five years unless a review is initiated before that period.

3. Judicial Review of the Decision:
The petitioners argued that the application dated 29/1/2018 met the requirements for initiating a Sunset Review by providing substantial material. The respondent No.2's rejection of the application was alleged to be based on an incorrect assessment of the facts and materials. The court noted that judicial review of such decisions is warranted to ensure that the process does not result in an empty formality or futility, thereby creating an irretrievable situation.

4. Interim Relief and Continuation of Anti-Dumping Duty:
The court was mindful of the balance of convenience and the potential irreparable injury to the domestic industry if the Anti-Dumping Duty was not continued pending the outcome of the judicial review. The court referred to a similar situation addressed by the Delhi High Court, where interim relief was granted by directing the initiation of a Sunset Review and the continuation of Anti-Dumping Duty. The court issued an ad-interim relief directing the respondent No.2 to initiate the Sunset Review investigation and the respondent No.1 to issue a notification for the continuation of the duty pending the outcome of the review.

The court also highlighted that the continuation of the duty would be subject to the final outcome of the petitions and that any duty collected during this period would be refunded if the petitioners' case failed.

Conclusion:
The court issued a rule returnable on 19/4/2018 and granted ad-interim relief directing the initiation of the Sunset Review and the continuation of the Anti-Dumping Duty. The court emphasized the need to balance the interests of all parties and provided for the possibility of refunding the duty collected if the petitioners' case did not succeed. The decision underscored the importance of judicial review in ensuring that administrative decisions comply with legal requirements and do not result in unjust outcomes.