2017 (8) TMI 810 - HC - Customs

Anti-dumping duty - request for Sunset Review (SSR) turned down - Held that - The Court is of the opinion that the petitioners/applicants have shown a prima facie case as well as satisfied that there would be irretrievable injustice given the fact that on the expiry of the day, (i.e. tomorrow midnight), the initiation of review would be rendered impossible - a direction is issued to the respondents to - in the course of the day - initiate the Sunset Review in the petitioners case - petition allowed.

Summary

Issues:
Petitioners complain about the denial of Sunset Review (SSR) of Anti-Dumping Duty. The specific grievances are regarding the denial of 2nd SSR for goods from China and 1st SSR for imported goods like Phosphoric Acid. The main contention revolves around the mandatory nature of the review process under Section 9A of the Customs Tariff Act, 1975, and the Anti-Dumping Rules.

Analysis:
The petitioners argue that the denial of the Sunset Review (SSR) by the respondents is unjustified, citing the mandatory nature of the review process under Section 9A of the Customs Tariff Act, 1975. They rely on the judgment in Indian Metal and Ferro Alloys Ltd. v. Designated Authority, which emphasized the mandatory nature of the review process and the steps required for the original assessment under the Anti-Dumping Duty Rules. The petitioners contend that the Designated Authority must undertake the review process as per the prescribed rules.

On the other hand, the Revenue/respondents argue that the Designated Authority has the discretion to proceed with or refuse the review and Sunset Review under Rules 23(1A) and 23(1B) of the Anti-Dumping Rules. They emphasize the obligation on the applicant to provide substantiation for the need for duty under Rule 23(1B). The respondents contend that the Designated Authority has the option to refuse the review based on the circumstances of the case.

The Court examines the circumstances of each case, considering factors such as production shortfalls, demand-supply gaps, and the impact of Anti-Dumping Duty on market prices. In the case of Cellophane Transparent Film, the Court notes a production shortfall and a significant duty margin affecting market prices. Similarly, for Phosphoric Acid, the unmet demand and the imposed duty raise concerns about a potential increase in imports. The Court observes a lack of clarity regarding whether the Designated Authority properly considered the data provided by the petitioners for the review process.

Consequently, the Court finds that the petitioners have established a prima facie case of irretrievable injustice if the review process is not initiated before the expiry of the Anti-Dumping Duty deadline. Therefore, the Court directs the respondents to initiate the Sunset Review for the petitioners' cases on an urgent basis. The Court also stipulates that the review process will be subject to the final outcome of the writ proceedings, ensuring legal compliance in the imposition of Anti-Dumping Duty.

The Court schedules a final hearing for the parties to present their arguments and file written synopses. The order emphasizes the importance of initiating the review process promptly to prevent any irreversible harm to the petitioners and to ensure compliance with legal procedures.