2017 (10) TMI 830 - HC - Customs

Anti-Dumping Duty - Soda Ash - sunset review - section 9A of the Custom Tariff Act, 1975 - time limitation - Held that - the time was granted to the authorities to complete the proceedings from the statement of disclosure and it was expected the purpose was only within two months from the date of receipt of copy of the judgment. As record indicates, the authorities received this order somewhere on 30th March 2017 and pursuant thereto the hearing was fixed on 25th April 2017. Ultimately, the said proceedings had not culminated into any order and the original notification dated 3rd July 2012 was coming to an end on account of lapse of time on 2nd June 2017. Hence, the concerned affected parties like the petitioners mopped the authorities for seeking appropriate review, which is known as Sunset Review for continuing the Anti Dumping Duty on account o reasons mentioned threunder, which request came to be accepted with effect from resultant order dated 16th June 2017. There is a rival contention on account of the observations of paragraph D as well as in para 7 by both the sides that the said notification of initiation of Sunset Review was after recording a satisfaction which would render the Mid Term Review or OTS infructuous whereas the counsel for the respondent relying upon para 17 contended that the same was specifically made subject to the result of the MTR which was in fact an undertaking and which could not be completed on account of pendency of the litigation before this Court. The Notification of 3rd July 2012 got extended up to 2nd July 2018 or till it is revoked by another order or notification. It is requierd to be noted at this stage that this notification is issued by the Governmetn of India, which is the competent authority and not respondent no.2 who has no power to issue any such extension notification. There being an order available with the authorities and despite there being a time limit existed in it and if the proceedings are not completed within the time limit then the authorities after having recording Sunset Review then a question arises as to how the authorities are justified in simultaneously proceeding with both the review. In our view, the same was not permissible and it deals a serious blow to its competence to undertake and continue with Mid Term Review without there being any clear mandate from the court after the time granted by the Court had elapsed. No prejudice is likely to be caused to the respondents in case if the status quo as on date is ordered to be continued under which the Union of India is restrained from acting upon the order dated 22.7.2017 under which the final findings have been rendered and Sunset Review is annulled.

Summary

Issues Involved:
1. Validity of the Mid Term Review (MTR) and Sunset Review process.
2. Legal authority and jurisdiction of the Designated Authority in conducting the reviews.
3. Compliance with statutory time limits for conducting reviews.
4. Impact of the reviews on anti-dumping duties.
5. Availability of alternative remedies and procedural fairness.

Issue-wise Detailed Analysis:

1. Validity of the Mid Term Review (MTR) and Sunset Review process:
The petitioners challenged the order dated 22nd July 2017 by the Designated Authority recommending the withdrawal of the Anti-Dumping Duty on 'Soda Ash' and rescinding the Sunset Review investigation. The petitioners sought relief to quash and set aside the Notification No.15/28/2014-DGAD dated 22.07.2017 and the order of the same date rescinding the Sunset Review.

2. Legal authority and jurisdiction of the Designated Authority in conducting the reviews:
The Court examined Section 9A of the Customs Tariff Act, 1975, which outlines the procedure for imposing and reviewing anti-dumping duties. The Court noted that the Designated Authority had initiated a Sunset Review on 16th June 2017 based on positive evidence submitted by the domestic industry. The Court found that the Designated Authority did not have the jurisdiction to continue with the MTR once the Sunset Review was initiated.

3. Compliance with statutory time limits for conducting reviews:
The Court emphasized the importance of adhering to statutory time limits. The MTR was initiated on 21.07.2015 and was supposed to be completed within 12 months, but the time was extended due to pending litigation. The Court noted that the final findings on the MTR were rendered on 22nd July 2017, beyond the stipulated time limit, without any specific extension granted by the Court.

4. Impact of the reviews on anti-dumping duties:
The Court observed that the original notification providing anti-dumping protection to the soda ash industry in India was set to expire on 2nd July 2017. The initiation of the Sunset Review on 16th June 2017 indicated the need for continued imposition of the duty. The Court found that the simultaneous continuation of the MTR and the Sunset Review was not permissible and created jurisdictional issues.

5. Availability of alternative remedies and procedural fairness:
The respondents argued that the petitioners had an alternative remedy available through an appeal and that the Court should not entertain the petitions under Article 226 of the Constitution of India. However, the Court found that the petitioners' concerns about the jurisdictional competence of the Designated Authority and the procedural irregularities warranted judicial intervention.

Conclusion:
The Court, prima facie, found substance in the petitioners' arguments and restrained the Union of India from acting upon the order dated 22.07.2017, which rendered the final findings on the MTR and annulled the Sunset Review. The Court issued a notice for final disposal returnable on 21.08.2017 and allowed the respondents the opportunity to seek vacation or modification of the order.

Order:
The Court ordered the continuation of the status quo, restraining the Union of India from acting upon the final findings dated 22.07.2017 and maintaining the existing anti-dumping duties until further orders. The Court permitted direct service of the order and allowed the respondents to apply for vacation or modification prior to the returnable date.