2021 (11) TMI 1161 - AT - Customs

Levy of anti dumping duty - Period of limitation - Determination and investigation for anti-dumping margin - Exclusion of certain period/ due to COVID - rule 17 provides for a time period of one year to the designated authority to submit its final findings to the Central Government from the date of initiation of the investigation and thereafter a period of three months time to the Central Government to take a decision on the recommendation made by the designated authority in the final findings. Whether the period during which there was a stay order of the High Court in the writ petitions filed to challenge the final findings dated 01.09.2020 and seeking stay over issue of any notification by the Central Government can be excluded? HELD THAT - The issue as to whether the time period stipulated to perform an act gets extended because of an interim order of a Court was examined in detail by a Constitution Bench of the Supreme Court in Indore Development Authority 2020 (3) TMI 1310 - SUPREME COURT . One of the many issues that was examined was whether the period covered by an interim order of a Court concerning land acquisition proceedings should be excluded for the purpose of applicability of section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 . It is in this context that the Supreme Court observed in the present case when we construe the provisions of Section 24 it clearly ousts the period spent during the interim stay of the court. Five years period is fixed for the purpose to take action if they have not taken the action for 5 years or more then there is lapse not otherwise. Even if there had been a provision made with respect to the exclusion of time spent in the court proceedings with respect to interim stay due to court s order it could have been ex abundanti cautela. A perusal of the aforesaid decision of the Supreme Court would indicate that even though section 24(2) of the 2013 Act does not provide for exclusion of any period during which the proceedings have been stayed by an order of the Court but the Supreme Court held that the period covered by an interim order has still to be excluded for it cannot be the intendment of the 2013 Act to confer benefit on litigants seeking higher compensation contemplated under section 24 of the 2013 Act. This is for the reason that in such a situation inaction cannot be attributed to the authorities and for the reason that when there is an interim order the authorities cannot proceed and they will have to wait till the interim orders are vacated. The Supreme Court also observed that a litigant may be right or wrong in approaching the Court but he cannot be permitted to take advantage of a situation created by him in obtaining an interim order. It is therefore clear from the aforesaid Constitution Bench decision of the Supreme Court in Indore Development Authority that the time period during which the appellants had obtained a stay order from the High Court has to be excluded even if rule 18 does not specifically provide for such exclusion. It was not possible for the Central Government during the period the interim order operated to take a decision on the recommendation made by the designated authority. The Central Government had necessarily to wait till the writ petitions were decided and the appellant cannot be permitted to take advantage of a situation created by them. The factual position brought about by the appellants leads to the inevitable conclusion that the period of three months in the peculiar facts and circumstances of the case should actually begin to run from 19.02.2021 when the last of the two representations was filed by Sadara Chemical before the Central Government pursuant to the directions issued by the High Court and if that be so then the notification issued by the Central Government on 05.04.2021 is clearly within the time limit of three months stipulated in rule 18 - Alternatively the remaining period of 49 days which the appellants claim remained with the Central Government to issue the notification should commence only from 19.02.2021 when the last representation was filed and if that be so the notification issued by the Central Government would also be within time - In this view of the matter the appellants are not entitled to any interim relief. In the present case what is required to be examined is whether because of the provisions of section 6 of the 2020 Act relating to Relaxation of the Time Limit under certain Indirect Tax Laws the time period stipulated under rule 18 for passing an order within three months from the date of submission of final findings by the designated authority stood extended upto 31.12.2020 - A perusal of section 6 of the 2020 Act makes it clear that the time limit specified in or prescribed or notified under the Tariff Act falling between 20.03.2020 to 29.09.2020 for issuance of any order by any authority shall stand extended upto 30.09.2020 which was subsequently extended 31.12.2020. It is no doubt true that the Tariff Act does not prescribe time limit for completion of any proceeding or issuance of any order but time limit has been prescribed under the 1995 Anti-Dumping Rules notified under the Tariff Act. Thus it is not possible to grant the interim relief prayed for by the appellants. The application filed for grant of interim relief is therefore rejected.

Summary

Issues Involved:
1. Violation of Rule 18 of the 1995 Anti-Dumping Rules.
2. Exclusion of the period during which a stay order was operative.
3. Applicability and impact of COVID-19 related extensions on the limitation period.
4. Alleged breach of principles of natural justice.

Detailed Analysis:

1. Violation of Rule 18 of the 1995 Anti-Dumping Rules:
The appellants contended that the notification dated 05.04.2021 was issued beyond the three-month period stipulated under Rule 18 of the 1995 Anti-Dumping Rules. They argued that the mandatory provisions of Rule 18 were violated since the notification was not issued within three months from the date of publication of the final findings by the designated authority on 01.09.2020. The appellants relied on the decisions in *Association of Synthetic Fibre Industry vs. J.K. Industry Ltd.* and *Nirma Limited vs. Union of India* to support their contention that the law of limitation must be enforced strictly.

2. Exclusion of the Period During Which a Stay Order Was Operative:
The respondents argued that the period during which the stay order granted by the High Court was operative should be excluded from the three-month period stipulated under Rule 18. The High Court had granted an interim order on 13.10.2020, which continued until the judgment was delivered on 06.01.2021. The respondents contended that the Central Government could not take any decision during this period due to the stay order. The Constitution Bench decision in *Indore Development Authority vs. Manoharlal and Others* was cited to support the exclusion of the period during which the stay order was in effect.

3. Applicability and Impact of COVID-19 Related Extensions on the Limitation Period:
The respondents also argued that the time limit prescribed under Rule 18 was extended due to the COVID-19 pandemic. They relied on the provisions of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 and the interim orders passed by the Supreme Court in "RE: Cognizance for Extension of Limitation." These orders extended the period of limitation for various proceedings due to the pandemic. The Supreme Court's order dated 08.03.2021, which extended the period from 15.03.2020 till 14.03.2021, was specifically cited.

4. Alleged Breach of Principles of Natural Justice:
The appellants contended that the final findings were issued in violation of the principles of natural justice and Rule 16 of the 1995 Anti-Dumping Rules. They argued that the designated authority failed to provide a fair opportunity to the interested parties to present their case. The High Court, in its judgment dated 06.01.2021, had noted the grievance regarding the violation of the principles of natural justice and observed that related issues such as determination of 'like article,' computation of non-injurious price, determination of dumping margin or injury margin, and adjustments made to landed value were intertwined and needed to be examined.

Conclusion:
The Tribunal examined the submissions and relevant provisions of the Tariff Act and the 1995 Anti-Dumping Rules. It concluded that the period during which the stay order was operative should be excluded. The Tribunal also considered the extensions granted due to the COVID-19 pandemic and found that the notification issued on 05.04.2021 was within the extended time limit. The Tribunal rejected the appellants' contention that the proceedings were vitiated due to the delay in issuing the notification. The application for interim relief was denied, and it was clarified that the observations made in the order would not prejudice the parties when the appeal is finally heard on merits.