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TMI Blog2017 (6) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Korea RP and Germany. The primary finding to this effect came to be published on July 17, 1997 whereby the Designated Authority recommended definitive anti-dumping duty. That resulted into issuance of Notification dated July 30, 1997 by the Central Government whereby anti-dumping duty was imposed under Section 9A of the Customs Tariff Act, 1975 (for short, the Act ) on the said product. Before the expiry of five years period during which anti-dumping duty remains operative, the first sunset review investigation was initiated by the Authority which recommended continued levy of anti-dumping duty. It resulted into another Notification dated October 10, 2002. As per this Notification, the anti-dumping duty was to remain in force till October 10, 2007. Just before that, on October 08, 2007, second sunset review investigation was initiated by the Authority, which resulted in recommendation dated October 04, 2008 for continued imposition of anti-dumping duty on imports of the product from Koreal RP. On the basis of this recommendation, another Notification dated January 02, 2009 was issued by the Central Government, which was to remain in force till January 01, 2014. On December 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India and Manufacturers Association. It is for this reason all these appeals are heard analogously, which we propose to decide by this common judgment. 2) Few dates which are material to appreciate the controversy and the stand which is taken by the respective parties need to be recapitulated. Since we are concerned with the validity of initiation of the third sunset review as well as Notification dated January 23, 2014 vide which earlier Notification was amended and extended for a period of one year under Section 9A of the Act, we will mention those dates which revolve around the aforesaid controversy. 3) As mentioned above, after the second sunset review, Notification dated January 02, 2009 was issued extending the period of anti-dumping duty for another five years, i.e. till January 01, 2014. On December 31, 2013, a day before the period of the aforesaid Notification was to expire, third sunset review was initiated. However, notification dated December 31, 2013 was made available only on January 06, 2014, i.e. after the expiry of original Notification. Thereafter, Notification dated January 23, 2014 was issued amending the earlier Notification dated January 02, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under subsection(6): Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transhipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin. (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined, - (a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. (6) The margin of dumping as referred to in subsection (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified and for the manner in which the export price and the normal value of and the margin of dumping in relation to, such articles may be determined and for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other year, pending outcome of the sunset review. 6) At this juncture, we shall reproduce relevant texts of Notification dated December 31, 2013 vide which sunset review was initiated, as well as Notification dated January 23, 2014 vide which earlier Notification dated January 02, 2009 was amended by extending its validity by another year: Notification dated December 31, 2013 To be published in Part-I Section-I of the Gazette of India Extraordinary F NO 15/29/2013-DGAD Government of India Department of Commerce Industry (Directorate General of Anti-Dumping Allied Duties) Udyog Bhavan, New Delhi 110011 Dated the 31st December, 2013 NOTIFICATION INITIATION Subject: Sunset Review (SSR) Anti-dumping Investigation concerning imports of Acrylonitrile Butadiene Rubber (NBR), originating in or exported from Korea RP. xx xx xx 2...Second sunset review investigations were initiated by the Authority on 8th October 2007 and the Authority recommended continued imposition of anti dumping duty on imports of the subject goods from Korea RP vide Notification No. 15/6/2007 dated 4th October 2008 and imposed by Finance vide Custom Notification No. 01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (5) of section 9A of the said Customs Tariff Act; Now, therefore, in exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975) read with rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 01/2009-Customs, dated the 2nd January, 2009, published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i), vide G.S.R. 5(E), dated the 2nd January, 2009, namely: In the said notification, after paragraph 2, the following shall be inserted, namely:- 3. Notwithstanding anything contained in paragraph 2, this notification shall remain in force upto and inclusive of the 1st day of January, 2015, with respect to anti-dumping duty on Acrylonitrile Butadiene Rubber originating in, or exported from Korea RP, unless revoked earlier. [F.No. 354/179/2002-TRU (Pt.V)] (Raj Kumar Digvijay) Under Secretary to the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing such a duty, the Central Government is to satisfy itself that if the period of anti-dumping duty is not extended, it is likely to lead to continuation or recurrence of dumping and injury to the domestic industry. The nature of exercise to be undertaken by the Central Government in a sunset review is somewhat different from the initial exercise to determine whether anti-dumping duty is to be levied at all or not. When it comes to review, the focus would be on the issue as to whether withdrawal of anti-dumping duty would lead to continuation or recurrence of dumping as well as injury to the domestic industry. The nature and scope of this exercise is lucidly explained by this Court in Reliance Industries v. Designated Authorities (2006) 10 SCC 368) in the following manner:- 38. We are of the opinion that the nature of the proceedings before the DA are quasi-judicial, and it is well settled that a quasi-judicial decision, or even an administrative decision which has civil consequences, must be in accordance with the principles of natural justice, and hence reasons have to be disclosed by the Authority in that decision vide S.N. Mukherjee v. Union of India [(1990) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s done taking into account all the relevant factors in forming the opinion that the sunset review was desirable. 11) Though the Notification is dated December 31, 2013 and published on the same date, it was sent for distribution to Kitab Mahal Book Store on January 06, 2014. The validity would depend upon the issue as to whether December 31, 2013 is the date of reckoning or it is only January 06, 2014. 12) 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. 13) Questioning the aforesaid approach of the High Court, it was argued by the learned counsel for the writ petitioners that this view was contrary to the judgment of this Court in B.K. Srinivasan Ors. v. State of Karnataka Ors. (1987) 1 SCC 658) wherein it was held as under: 15....Where the parent statute is silent, but the subordinate legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable, and casualty. The High Court is right that it is in this specific context that the said Rule mentions about issuance of public notice underlying its decision to initiate the investigation. Rule 23 deals with review, i.e. review to see the need for the continued imposition of anti-dumping duty and inter alia mentions that provisions of Rule 6 shall be mutatis mutandis applicable in the case of review, meaning thereby the procedure which is mentioned in Rule 6 shall be followed while undertaking review as well. Rule 6, thus, encompasses the principles of natural justice that are to be applied by the Designated Authority while undertaking the exercise of investigations qua imposition of dumping duty. Such a purport of Rule 6 of the rules is recognised in the case of Automotive Tyre Manufacturers Association v. Designated Authority Ors. (2011) 2 SCC 258) , namely, the Designated Authority is to conform to the principles of natural justice, as can be seen from the following discussion in the said judgment: 82. the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we are convinced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the instant case itself, after the completion of sunset review exercise , final notification was issued on September 04, 2015 signifying the continuation of anti-dumping duty was justified. On that basis, it was argued that there should not be a position of hiatus or vacuum in between, which also justifies the interpretation that the extension under the second proviso is automatic. For this purpose, learned Additional Solicitor General referred to the following discussion in the case of Rishiroop Polymers (P) Ltd. v. Designated Authority and Additional Secretary (2006) 4 SCC 303) : 35. After going through the entire record with the assistance of the learned counsel for the parties, we are of the opinion that the contention raised by the appellant is clearly contrary to the facts on record. The Designated Authority in its findings in the Mid-Term Review proceedings has categorically stated that all the factors have been taken into consideration while determining continuance of the anti-dumping duty. That apart, at the time of arguments, we had the advantage of going through the original records/documents (original/confidential file was produced in the Court) which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions so re-enacted [and when any [Central Act] or Regulation, which, by a notification under section 5 or 5A of the Scheduled Districts Act, 1874, (14 of 1874) or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from the re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this Section]. 22) She also relied upon the judgment in the case of Fibre Boards Private Limited, Bangalore v. Commissioner of Income Tax, Bangalore (2015) 10 SCC 333). 23) Mr. Basava Prabhu Patil, learned senior advocate appearing for domestic industry manufacturing the product in-question, supported the aforesaid submission of the learned Additional Solicitor General. He referred to Rule 23(b) of the Rules which, according to him, mandates the Designated Authority to initiate sunset review either suo moto or upon receipt of a duly substantiated petition. Duly substantiated petition implies that the petition should contain sufficient evidence that the cessation of anti dumping duty is likely to lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted otherwise, it would frustrate the objective of the provision, as held in N. Nagendra Rao Co. v. State of A.P. (1994) 6 SCC 205) (para 3) as well as Dinkar Anna Patil and Another v. State of Maharashtra and Others (1999) 1 SCC 354) (para 26). Mr. Patil also endeavoured to take sustenance from the judgement of this Court in Sub-Committee on Judicial Accountability v. Union of India and Another (1991) 4 SCC 699) wherein this Court held that the enabling words are construed as compulsory whenever the object of the power is to effectuate the legal right........ He specifically relied upon the discussion contained in paras 85 and 86 which are to the following effect: 85. Use of the word may in clause (5) indicates that for the procedure for presentation of address it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the investigation and proof is to be governed by the enacted law. The word may in clause (5) is no impediment to this view. 86. On the other hand, if the word shall was used in place of may in clause (5) it would have indicated that it was incumbent on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the original period. He submitted that when a statute enacted in the national economic interest comes up for consideration, the traditional norms of statutory interpretation must yield to broader notions of national interest and that, therefore, the Court has to interpret the statute in tune with the national interest that the statute sought to sub-serve. Para 63 reads as follows: 63. We are conscious that the word prior or previous may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act. 28) Building on the aforesaid edifice, the learned counsel proceeded further to argue that in the instant case, Notification dated January 23, 2014 was in fact issued. According to him, such a Notification is valid and should be treated as effective from January 02, 2014, or else, in any case from January 23, 2014 when a Notification was issued. 29) Mr. V. Lakshmikumaran, Advocate appearing on the other side, attempted to justify the order of the High Court on this aspect with the reasons which the High Court has assigned in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there should be no discontinuance. Predicated on this, submission of Mr. Lakshmikumaran was that once the period prescribed by the original Notification expires, the right to exercise power under second proviso also comes to an end inasmuch as any notification issued after the expiry, and with a gap, would not be a case of anti-dumping duty continues to remain in force . The learned counsel referred to two judgments in support of his arguments, viz. (i) Babu Varghese v. Bar Council of Kerala (1999) 3 SCC 422) and Harivansh Lal Mehra v. State of Maharashtra (1971) 2 SCC 54) . 30) From the scheme of Section 9A of the Act, it becomes clear that though the Notification for anti-dumping duty is valid for a maximum period of five years, the said period can be extended further with the issuance of fresh notification. For this purpose, it is necessary to initiate the review exercise before the expiry of the original notification, which review is commonly known as sunset review . There may be situations where the sunset review is undertaken but the review exercise is not complete before the expiry of the period of original notification. It is because of the reason tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may extend the period if after undertaking the review it forms an opinion that continuation of such an anti-dumping duty is necessary in public interest. When such a notification is issued after review, period of imposition gets extended by another five years. That is the effect of first proviso to sub-section (5) of Section 9A. However, what we intend to emphasise here is that even as per sub-section (5) it is not necessary that in all cases anti-dumping duty shall be imposed for a full period of five years as it can be revoked earlier. Likewise, 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. Reason is simple. There no duty or tax can be imposed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to necessarily form an opinion as to for how much period it wants to continue the anti-dumping duty pending outcome of such a review. Moreover, since the maximum period is one year, if the review exercise is not completed within one year, the effect of that would be that after the lapse of one year there would not be any anti-dumping duty even if the review is pending. In that eventuality, it is only after the review exercise is complete and the Central Government forms the opinion that the cessation of such a duty is likely to lead to continuation or recurrence of dumping and injury, it would issue a notification extending the period of imposition of duty. Therefore, there may be a situation where even when the power is exercised under second proviso and duty period extended by full one year, the review exercise could not be completed within that period. In that situation, vacuum shall still be created in the interregnum beyond the period of one year and till the review exercise is complete and fresh notification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between. 34) Judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of temporary legislation and validity thereof could be extended, in exercise of powers contained in second proviso to sub-section (5) of Section 9A of the Act only before January 01, 2014. 37) We do not find any infirmity in the aforesaid approach of the High Court in interpreting the second proviso to Section 9A(5) of the Act. The High Court has rightly interpreted the aforesaid provision in the light of Article 11.1, 11.2 and 11.3 of the Agreement for Implementation and Article VI of the GATT, commonly known as Implementation Agreement . These clauses read as under: 11.1 An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury. 11.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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