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2017 (11) TMI 665 - HC - CustomsADD - New Shipper Review - clear float glass of nominal thickness ranging from 4 mm to 12 mm - import from Saudi Arabia, UAE and Pakistan - time limitation - One of the contentions raised by the domestic industry before the Designated Authority was that the Designated Authority has no jurisdiction in the present matter due to lapse of time, as maximum period available to the Designated Authority to conclude the investigation is 18 months in terms of Rule 17 and the same having expired, the initiation itself is bad in law - whether the New Shipper Review Investigation commenced by the Designated Authority vide initiation notification, dated 23.09.2015 culminating in the final findings, dated 10.04.2017 is barred by time as it has exceeded 18 months? Held that - At the instance of the third respondent, the Designated Authority initiated New Shipper Review Investigation pursuant to notification dated 23.09.2015. This review was initiated invoking the power under Rule 22 of the ADD Rules. In terms of Sub-Rule (1) of Rule 22, if a product is subject to anti-dumping duties, the Designated Authority shall carryout the periodical review for the purpose of determining individual margins of dumping for any exporters or producers in the exporter country in question, who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any of the exporters or producers in the exporting country, who are subject to the anti-dumping duties on the products - Sub-Rule (2) of Rule 22 places an embargo on the Central Government not to levy anti-dumping duties under Sub-Section (1) of Section 9A of the Customs Tariff Act, during the period of review under Rule 22(1). Proviso under Rule 22(2) provides that the Central Government may resort to provisional assessment and may ask guarantee from the importer to safeguard the interest of the revenue. The impugned notification dated 10.04.2017, is a result of the review undertaken in terms of Rule 22. It appears that this review being sought for by a producer in a foreign country, who has not exported his product into India, is referred to as a New Shipper Review, though such a term dose not find place in the ADD Rules. The rule contemplates two types of review, the first is done after a reasonable period has lapsed, since the imposition of anti-dumping duty. This review can be on the own initiative of the Designated Authority or on request by any interesting party, who submits positive information substantiating the need for such review. The third respondent, who sought for review under Rule 22 is not an interested party, in respect of the period of investigation, which led to the issuance of the notification, dated 11.12.2014, the said period being 01.10.2011 to 31.12.2012. Therefore, Rule 23(1A) is not applicable to the present case. Rule 23 (1B) is a review to be undertaken notwithstanding anything contained in Sub-Rule 1 or 1A and this review is undertaken prior to the expiry of the period of 5 years from the date of imposition of anti-dumping duty and this review can be undertaken by the Designated Authority on his own initiative or upon a duly substantiated request made by or on behalf of the domestic industry. This contingency does not arise in the present case. Therefore, Rule 23 (1B) does not apply. The review under Sub-Rule (1) of Rule 23 shall be concluded within a period of 12 months from the date of initiation. Thus, both in the cases of mid-term review and sunset review, (as popularly known in the industry), the time limit is 12 months. While undertaking such review, the other Rules enumerated in Sub-Rule (3) of Rule 23 would apply. Thus, Rule 22 and Rule 23 operate in different spheres and well defined compartments and the plea that subject Rule 23(3) read with Rule 17 should be superimposed in Rule 22 to fix a time limit amounts to re-writing the Rule, which is impermissible. Thus, the Court is fully convinced that the interpretation sought to be given by the petitioner lacks merit. Period of investigation for the new shipper review was from 01.07.2015 to 31.03.2016, for which notification was issued on 23.09.2015 - Held that - to state that by superimposing Rule 23(3) into Rule 22 and hold that the period of limitation will commence from 23.09.2015 and end with 22.09.2016 is a plea to be rejected. Admittedly, the Designated Authority can assess whether the new shipper review is warranted for continued imposition of duty or reduction thereof, only after the investigation is over for the fixed period of investigation, which came to an end on 31.03.2016. Obviously the investigation report could not have been submitted on the close of 31.03.2016. Thus, the contention raised by the petitioner is wholly devoid of merits. In a recent decision in the case of Sandisk International Limited 2017 (2) TMI 924 - SUPREME COURT filed by the Designated Authority, challenge was against the judgment and order of the Delhi High Court interferring with the final findings of the Designated Authority. On going through the facts of the case, the Hon ble Supreme Court observed that the High Court was not justified in exercising its writ jurisdiction and in setting aside the final findings of the Designated Authority and the High Court should have asked the writ petitioner to await the issuance of final notification under Rule 18 and to challenge the same before the appropriate forum under Section 9C of the Customs Tariff Act. The New Shippers Review initiated vide notification, dated 23.09.2015, culminating in the final findings dated 10.04.2017, is not barred by time - In the absence of any time limit fixed in Rule 22, a review undertaken under Rule 22 is not required to be completed within 12/18 months as required under Rule 23(3), but an accelarated procedure. Petitions are dismissed being not maintainable.
Issues Involved:
1. Jurisdiction of the Designated Authority to initiate the New Shipper Review. 2. Time limits for completing the New Shipper Review. 3. Applicability of Rule 23(3) and Rule 17 to Rule 22. 4. Maintainability of the Writ Petitions. 5. Availability of alternate remedies for the petitioner. Detailed Analysis: 1. Jurisdiction of the Designated Authority to Initiate the New Shipper Review: The petitioner challenged the jurisdiction of the Designated Authority to initiate the New Shipper Review under Rule 22 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped articles and for Determination of Injury) Rules, 1995 (ADD Rules). The petitioner argued that Rule 22 does not confer the power to undertake a New Shipper Review as Section 9A(5) of the Customs Tariff Act, 1975 only provides for a sunset review. The court, however, found that Rule 22 specifically allows for a review to determine individual margins of dumping for exporters or producers who have not exported the product to India during the period of investigation. 2. Time Limits for Completing the New Shipper Review: The petitioner contended that the review should be completed within 12 months, extendable by 6 months, as per Rule 17 and Rule 23(3). The court clarified that Rule 22 and Rule 23 operate in different spheres. Rule 22 does not prescribe a specific time limit for the New Shipper Review, unlike Rule 23, which deals with mid-term and sunset reviews and prescribes a 12-month period for completion. The court concluded that imposing the time limits of Rule 23 on Rule 22 would amount to rewriting the rule, which is impermissible. 3. Applicability of Rule 23(3) and Rule 17 to Rule 22: The petitioner argued that the procedures and time limits of Rule 23(3) read with Rule 17 should apply to Rule 22. The court rejected this argument, stating that Rule 22 and Rule 23 are distinct and have different purposes. Rule 22 deals with reviews for new exporters or producers who did not export during the initial investigation period, while Rule 23 deals with ongoing reviews of existing anti-dumping duties. Thus, the court held that the time limits and procedures of Rule 23(3) and Rule 17 cannot be superimposed on Rule 22. 4. Maintainability of the Writ Petitions: The court referred to precedents, including the Supreme Court decisions in NITCO Tiles Ltd. and Sandisk International Limited, which held that writ petitions challenging the final findings of the Designated Authority should not be entertained when an alternate remedy under Section 9C of the Customs Tariff Act is available. The court concluded that the writ petitions were not maintainable and the petitioner should avail the alternate remedy. 5. Availability of Alternate Remedies for the Petitioner: The court directed the petitioner to avail the alternate remedy available under Section 9C of the Customs Tariff Act. The court dismissed the writ petitions, allowing the petitioner to challenge the notification dated 16.06.2017 before the appropriate forum. Conclusion: The court dismissed all the writ petitions, holding that: 1. The New Shipper Review initiated by the notification dated 23.09.2015 and culminating in the final findings dated 10.04.2017 is not barred by time. 2. Rule 22 does not require the review to be completed within 12/18 months. 3. Rule 23(3) read with Rule 17 cannot be applied to Rule 22. 4. The writ petitions are not maintainable. 5. The petitioner should avail the alternate remedy under Section 9C of the Customs Tariff Act.
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