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TMI Blog2017 (10) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inded with immediate effect, as a result whereof the petitioners have been compelled to approach this Court for seeking appropriate reliefs. The reliefs which are prayed for in Special Civil Application No.14204 of 2017 could be considered to be a common reliefs to the extent of final finding dated 27.07.2017 on Mid Term Review as in Special Civil Application No.14203 of 2017, 14205 of 2017, 14206 of 2017 and 14207 of 2017 wherein there was no Sunset Review. Reliefs prayed for in Special Civil Application No.14204 of 2017 reads as under: "A) This Honble Court be pleased to issue a writ of mandamus or a writ, order or direction in the nature of mandamus or any other appropriate writ, direction or order, and quash and set aside Notification No.15/28/2014-DGAD dated 22.07.2017 and Order dated 22.07.2017 rescinding Sunset Review investigation, issued by the Respondent No.2 and annexed as Annexure I and J hereto; and B) Pending hearing and final outcome of this petition, this Honble Court be pleased to by way of interim and/or adinterim relief stay the operation and implementation of Notification NO.15/28/2014- DGAD dated 22.07.2017 and Order dated 22.07.2017 rescinding Sunset Revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under subsection (6); (c) "normal value", in relation to an article, means- [i] the comparable price, in the ordinary course of trade, for the like article when [destined for consumption] in the exporting country or territory as determined in accordance with the rules made under subsection (6); or [ii] when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either- (a) comparable representative price of the like article when exported from the exporting country or territory to an appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or such impositions, as the case may be; or [ii] the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India. Explanation. - For the purpose of this subsection, the expression "hindered per cent export-oriented undertaking " shall have the meaning assigned to it in Explanation 2 to subsection (1) of section 3 of the Central Excise Act, 1944 (1 of 1944). (3) if the Central Government, in respect of the dumped article under inquiry, is of the opinion that- (I) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exported practices dumping and that such dumping would causer injury;and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti-dumping duty liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information provided, by such exporter or producer : Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.] (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act." 6 The relevant rules, namely, Rule 23 of the Customs Tariff (Identification, assessment and collection of countervailing duty on subsidies articles and for determination injury) Rules 1996 envisage the parameters and criterion to be gone into by the competent authorities for reviewing and/or imposing anti dumping duty. The relevant rules for the purpose of discussion deserve to be set out for ready reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r concerned of the article under investigation : Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated, and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned : Provided further that the designated authority shall, determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 17, withdraw the provisional duty imposed, if any. 19. Imposition of duty on nondiscriminatory basis.- Any provisional duty imposed under rule 13 or an anti-dumping duty imposed under rule 18 shall be on a non-discriminatory basis and applicable to all imports of such articles, from whatever sources found dumped and, where applicable, causing injury to domestic industry except in the case of imports from those sources from which undertaking in terms of rule 15 has been accepted. 23. Review.- [1] Any anti-dumping duty imposed under the provision of section 9A of Section of the Act, shall remain in force, so long as and to the extent necessary, to counteract dumping, which is causing injury. [1A] The designated authority shall review the need for the continued imposition of any anti-dumping duty, where warranted, on its own initiate or upon request by any interested party, who submits positive information substantiating the need for such review, and a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, where it comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the decision of the Supreme Court in the case of Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd., (1995) 1 SCC 642, wherein it has been held that the period of time fixed for passing an order applies only to the initial order and not to any subsequent order that may have to be passed under the directions given by a statutory authority or by a court in a writ proceeding. The court held that, to hold otherwise would make the powers of courts under Article 226 wholly ineffective. The court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. 39.2 Keeping in mind the principles propounded in the above decisions, the court having held that the disclosure statements stand vitiated for the detailed reasons set out hereinabove, would be required to set aside the disclosure statements as well as all proceedings pursuant thereto and restore the proceeding to the file of the designated authority for issuance of a fresh disclosure statement in accordance with law keeping in mind the observations made hereinabove." 9 Thus, essentially, the time was granted to the authorities to complete the proceedings from the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the pendency of those petitions the extension came in the form of Notification dated 30.6.2012 in which the operative part makes an interesting reading, which reads as under: "Now, therefore, in exercise of the powers conferred by subsection (1) and (5) of section 9A of the Customs Tariff Act read with rules 18 and 23 of the Anti dumping Rules, 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.34/2012-Customs(ADD), dated the 3rd July 2012 published in the Gazette of India, Extraordinary, Part-II, section 3 subsection (iii) vide No.GSR 528 (E) dated the 3rd July 2012, namely, In the said Notification, in paragraph 2 and before the explanation, the following shall be added, namely: "3. Subject to the final decision of the Hon'ble High Court of Gujarat in Special Civil Applications No.16426 of 2016 and 16248 of 2016, this notification, unless revoked earlier, shall remain in force upto and inclusive of the 2nd July 2018." 12 Thus, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation the same would have expired on 2nd July 2017 and in that view of the matter the term review could be said to have emanated from no authority at law which in other words could be said to be law of patent jurisdiction to embark upon and complete the procedure especially when the competent authority after recording the satisfaction qua the requirement of Sunset Review issued the notification and procedure has started. 16 Mr Mihir Joshi, learned advocate for the petitioners has contended that once respondent no.2 has issued a Disclosure Statement containing the essential facts under consideration, the Respondent no.2 is not entitled to change these facts under consideration unless it is established by an interested party that these essential facts suffer from palpable errors or some clerical or mathematical errors. He further submitted that respondent no.2 has merely changed analysis and concluded different facts in the final findings on the basis of highly pick and choose method. He further submitted that disclosure statement states that some of the interested parties have contended that optimum capacity utilization of soda ash plants is 80% only when no such statement was ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21 We have heard learned counsel for the parties and perused the documents on record. We are, prima facie, of the considered view that what has been canvassed on behalf of the petitioners has substance inasmuch as prima facie we are of the clear opinion that respondent no.2 could not have continued with Mid Term Review once the decision to undertake Sunset Review was declared and the machinery was set into motion pursuant to the order dated 16.6.2017. This order is made after the judgment of this Court was pronounced and received by the authorities I.e. on 23.02.2017 which was received on 30.03.2017 despite 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. Apart f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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