2017 (6) TMI 526 - SC - Customs

Imposition of ADD - retrospective amendment - Acrylonitrile Butadiene Rubber - import from Korea RP and Germany - sunset review - N/N. 6/2014-Customs dated January 23, 2014 - Section 9A of the CTA, 1975 - relevant date for sunset review - Whether the date of December 31, 2013 or it is January 06, 2014, which would be the relevant date for determining initiation of the sunset review? - Held that - such a sunset review is to initiate before the expiry of five years period mentioned in the Notification - The High Court has answered the question in favour of the Government and against the writ petitioners on the ground that Section 9A(5) of the Act and its proviso do not mandate a public notice or a Gazette Notification as a pre-condition for initiation of sunset review investigation. The reference to publication by Official Gazette is, significantly, in Section 9A(1) which talks of imposition of anti-dumping duty. First proviso to Section 9A(5) of the Act, when read along with Rule 6 of the Rules, do not lead to the conclusion that the intention to review and extend the anti-dumping duty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A(5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which the anti-dumping duty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry date. Section 9A(1), which deals with imposition of anti-dumping duty, specifically refers to such an imposition by way of publication in an Official Gazette. Therefore, as far as initiation of review is concerned, once a decision is taken by the Government on a particular date, that would be the relevant date and not the date on which it is made public. Whether such a Notification issued after the expiry date of the original Notification is without any legal authority and is, therefore, null and void? - Held that - when a review is initiated but final conclusion is not arrived at and the period of five years stipulated in the original notification expires in the meantime, as per second proviso the anti-dumping duty may continue to remain in force . However, it cannot be said that the duty would automatically get continued after the expiry of five years simply because review exercise is initiated before the expiry of the aforesaid period. It cannot be denied, which was not even disputed before us, that issuance of a notification is necessary for extending the period of anti-dumping duty. When Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending a non-existing Notification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed. Appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Validity of the initiation date for the third sunset review.
2. Legality of the Notification dated January 23, 2014, extending anti-dumping duty after the expiry of the original Notification.

Detailed Analysis:

1. Validity of the Initiation Date for the Third Sunset Review:
The first issue concerns whether the relevant date for determining the initiation of the sunset review is December 31, 2013, or January 06, 2014. The review was initiated before the expiry of the five-year period (January 01, 2014), but the notification was made public only on January 06, 2014. The High Court held that Section 9A(5) of the Customs Tariff Act, 1975, does not mandate a public notice or a Gazette Notification as a pre-condition for initiation of a sunset review investigation. The Supreme Court agreed with this conclusion, stating that the date of the decision to initiate the review (December 31, 2013) is the relevant date, not the date of publication (January 06, 2014). The court emphasized that the requirement of public notice or a Gazette Notification is not stipulated in Section 9A(5) and its proviso, unlike Section 9A(1), which specifically refers to publication in an Official Gazette for imposition of anti-dumping duty. Therefore, the appeals challenging this part of the High Court's decision were dismissed.

2. Legality of the Notification Dated January 23, 2014:
The second issue revolves around whether the Notification dated January 23, 2014, extending the anti-dumping duty after the original Notification expired on January 01, 2014, is valid. The High Court ruled that the second proviso to Section 9A(5) is an enabling provision, meaning the Central Government must exercise its power explicitly to extend the duty. The Supreme Court agreed, stating that the word "may" in the proviso indicates that the continuation of anti-dumping duty is not automatic and requires a specific notification. The court noted that the issuance of a notification is necessary for extending the period of anti-dumping duty, as no duty or tax can be imposed without the authority of 'law,' which must be in the form of an appropriate notification.

Additionally, the court held that the Notification dated January 23, 2014, could not amend the earlier Notification dated January 02, 2009, after it had expired. The court emphasized that once the original Notification lapsed, there was no existing Notification to amend. Thus, the Notification dated January 23, 2014, was invalid. Consequently, the appeals by the Union of India and the domestic industry were dismissed.

Conclusion:
The Supreme Court upheld the High Court's decision on both issues, confirming that the initiation date for the third sunset review was December 31, 2013, and that the Notification dated January 23, 2014, extending the anti-dumping duty after the expiry of the original Notification, was invalid. The appeals challenging the High Court's judgment were dismissed, affirming the necessity of explicit governmental action to extend anti-dumping duties and the invalidity of amending a lapsed Notification.