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2023 (7) TMI 924 - HC - CustomsLevy of Anti-Dumping Duty (ADD) - Seeking stay of the operation of the customs notification dated 05.04.2021 - Import of Flexible Slabstock Polyol (FSP) originating from Saudi Arabia and United Arab Emirates (UAE) - whether the notification dated 05.04.2021 issued by UOI was void in law, as it was issued after the timeframe prescribed under Rule 18 of the ADD Rules had been crossed? HELD THAT - The ADD Rules empower UOI/Central Government to appoint a person, not below the rank of a Joint Secretary to the Government of India or such other person which it thinks is fit to act as the DA and notify such appointment via the official gazette. The UOI/Central Government is also empowered to provide the DA, the services of such other persons and other facilities as it deems fit - the broad scheme of the ADD Rules is to give leeway to UOI to arrive at its own decision i.e., whether or not to accept the recommendation of the DA with regard to the amount of ADD, which, if levied, would remove the injury where applicable caused to the domestic industry. Rule 17(1)(b) of the ADD Rules. The moot point is that the ADD Rules, which are a delegated legislation framed by UOI/Central Government under the powers given to it by the Legislature under the above-referred provisions of the CTA, failed to envisage a scenario where a party, dissatisfied with the final findings returned by the DA could approach a Court and obtain an order that could disrupt the timelines provided in the said Rules. Keeping the underlying purpose in mind, it would not be out of place to read into Rule 18, the requirement to extend the timeframe given therein, for UOI/Central Government to decide on the recommendation made by the DA by excluding the period for which orders of the Court remained operable. This would, in our view, not amount to supplanting the Rule, but would, on the other hand, balance the interests of both the exporter of the subject article which is under investigation as well as the domestic industry. Any other view would tantamount to punishing the party which adhered to the orders of the Court. There are statutes which expressly provide for the exclusion of timeframes provided in the statute for completion of certain acts, on account of order(s) issued by a court. One such example is the provisions of Section 11A of the Land Acquisition Act, 1894 - The fact that there is no such provision, in our opinion, should not deter a court from applying the principle that no litigant/party can be made to suffer on account of order(s) or acts of the court, which require peremptory adherence. The judgment of the Supreme Court rendered in the J.K. Industries case 2005 (4) TMI 94 - SUPREME COURT , is clearly distinguishable, as the observations made therein have to be understood in the context in which they were made. This was a case where a notification for the levy of provisional ADD was issued, which had come to an end due to efflux of time. The levy of provisional duty and other proceedings were challenged before the concerned High Court. The Tribunal was right in concluding that the time for which the interim orders were operable had to be excluded. The Tribunal was also right in concluding that given the fact that representations had to be considered, as directed by the High Court, it could not be said that the notification dated 05.04.2021 was void in law, as it was not issued within the timeframe provided in Rule 18 of the ADD Rules. The impugned order need not be interfered with - appeal dismissed.
Issues Involved:
1. Validity of the Customs notification dated 05.04.2021. 2. Interpretation of Rule 18 of the ADD Rules. 3. Procedural compliance concerning representations and interim orders. 4. Maintainability of the appeal on grounds of forum non-conveniens and forum shopping. Summary: 1. Validity of the Customs Notification: The appeal challenges the Customs notification dated 05.04.2021, which imposed Anti-Dumping Duty (ADD) on "Flexible Slabstock Polyol" (FSP) originating from Saudi Arabia and UAE. The appellants argued that the notification was issued beyond the mandatory timeframe prescribed under Rule 18 of the ADD Rules, making it void in law. 2. Interpretation of Rule 18 of the ADD Rules: The central issue was whether the notification dated 05.04.2021 was void as it was issued after the timeframe prescribed under Rule 18 had expired. Rule 18 mandates that the Central Government must impose ADD within three months of the publication of final findings by the Designated Authority (DA). The appellants contended that the notification should have been issued by 01.12.2020, considering the recommendation was made on 01.09.2020. 3. Procedural Compliance: The Court considered the period during which the interim order issued by the Bombay High Court (13.10.2020 to 06.01.2021) was in effect. It was argued that this period should be excluded from the calculation of the three-month timeframe. The Court agreed, noting that the Union of India (UOI) could not have taken any final decision during the operation of the interim order and had to comply with the Bombay High Court's directions to consider representations filed by Dow and Sadara. 4. Maintainability of the Appeal: The respondents argued that the appeal was not maintainable as no substantial question of law was raised and that the appeal should be rejected on the grounds of forum non-conveniens and forum shopping. The Court did not delve deeply into these issues, focusing instead on the primary issue of the validity of the notification. Conclusion: The Court concluded that the period during which the interim order was operative should be excluded from the three-month timeframe prescribed under Rule 18. Therefore, the notification dated 05.04.2021 was issued within the permissible period. The appeal was dismissed, and the Tribunal's order dated 01.11.2021 was upheld.
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