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TMI Blog2017 (11) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... n the request of an interested party. In all these cases, there was a request by the interested party, namely the Domestic Industry, for initiation of the SSR for the ultimate purpose of continuing the ADD. Rule 23 (1A) further requires such party to submit “positive information substantiating the need for such review” and upon such review, the DA shall recommend to the Central Government the withdrawal of the ADD where it comes to a conclusion that injury to the domestic industry “is not likely to continue or recur if the said ADD is removed or varied and is, therefore, no longer warranted.” This is an instance where the DA decides not to continue the ADD. Rule 6 sets out the principles governing the investigations. That procedure, however, envisages that the DA shall, “after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of articles,” issue a public notice notifying its decision and such public notice shall, inter alia, “contain adequate information on the following.” Rule 6 (1), therefore, does envisage the DA first deciding to initiate investigation. As already noticed, in Rule 23 (3) of the ADD Rules, Rule 6 wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cious time would be lost as a result of judicial delays. That was perhaps what weighed with the Court when, on 11th January 2017, it decided by an extraordinary interim order, to direct the DA to initiate SSR. This was, of course, subject to the final outcome of the writ proceedings - If these writ petitions are not dealt with within a short time period, then they may all be rendered infructuous. This is the danger that exists in such matters. Some procedure will have to be devised to ensure that the entire exercise is completed much before the expiry of the initial ADD notification. How that should be done has to be left to the authorities to determine and perhaps that would require a further refining of the existing ADD Rules and Safeguard Rules. The Court, however, would not like to opine any further on this aspect. Extension of notification imposing ADD - Held that: - considering the question of extending the notification imposing the ADD is not an easy task to perform at the interim stage with all the relevant materials that are placed before the Court. Where the Petitioners are compelled to approach the Court at virtually the “last minute”, the Court has to proceed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Central Government of the anti-dumping duty ( ADD ), pending the conclusion of the SSR. There are ten writ petitions in all. 2. Six of the writ petitions, i.e. W.P.(C) Nos. 146 of 2017, 147 of 2017, 247 of 2017, 640 of 2017, 641 of 2017 and 7464 of 2017 question the decision of the DA not to initiate SSR and consequently, not extend the period for which the ADD would be enforced. Three of the writ petitions, i.e. W.P. (C) Nos. 5088 of 2017, 5089 of 2017, 5095/2017 question the issue of the DA not extending the imposition of ADD whilst SSR was being undertaken pursuant to this Court s order. 3. W.P.(C) No. 1847 of 2017 by VVF (India) Limited questions the decision of the Central Government not to continue the safeguard duty (SGD) under Section 8B (4) read with Rules 16 and 18 of the Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997 ( Safeguard Rules ). Facts regarding Kesoram Rayon 4. Kesoram Rayon ( KR ), a unit of Cygnet Industries Limited (CIL) is the Petitioner in W.P. (C) Nos. 146 and 5095 of 2017. CIL is a wholly-owned subsidiary of Kesoram Industries Limited ( KIL ) and has its registered office in Kolkata. 5. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of this Court, the SSR was to be mandatorily conducted. 10. On 26th December 2016, the DA issued the impugned letter declining to initiate an SSR investigation. This letter led to the filing of W.P. (C) No. 146 of 2017. 11. At the hearing of the said petition on 11th January 2017, this Court issued directions to the Respondents to initiate the SSR during the course of the day and issue notifications in that regard with the stipulation that the proceedings would be subject to the final outcome of the writ petition. 12. Thereafter, KR sought an extension of the imposition of the ADD during the pendency of the SSR in terms of the second proviso to Section 9A (5) of the CTA. The DA declined to extend the ADD. This led to filing by KR of the second writ petition i.e. W.P.(C) 5095 of 2017 seeking a mandamus to the Respondents to extend the ADD and claiming that irreparable loss was being suffered by it as a result of such non-extension of ADD. Facts regarding GACL and GIL 13. W.P. (C) Nos. 147 and 247 of 2017 arise from the same factual matrix. The Petitioners, Gujarat Alkalis Chemicals Ltd. ( GACL ) and Grasim Industries Ltd. ( GIL ) respectively, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that dumping from Taiwan remained substantial and the surplus capacity of Israeli industry in the subject good suggested a strong likelihood of dumping resuming upon cessation of the ADD. The case made out by the Petitioners in this writ petition is along similar lines. 17. On 2nd January 2017, by way of the impugned letter, the DA refused to initiate SSR. The grounds for refusal to initiate SSR were as under: i. In respect of Israel: that there are no known imports during the proposed period of investigation. ii. In respect of Taiwan: that the condition of the domestic industry has improved significantly in the last 4 years and, in the absence of sufficient data in support of likelihood parameters, assumption of likelihood of injury does not appear to be correct. iii. In the absence of any database, it cannot be ascertained whether the same grades are being imported to fill the demand-supply gap. 18. The DA s refusal to initiate SSR with respect to PA upon an application made under Section 9A (5) of the CTA prompted the present petitions, i.e. W.P.(C) Nos. 147 of 2017 and 247 of 2017. On 11th January 2017, this Court directed that SSR be initiated in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in W.P.(C) 5088 of 2017 made a representation before the DA seeking issuance of extension notification under the second proviso to Section 9A (5) of the CTA. Facts regarding ADL 25. Aarti Drugs Ltd. ( ADL ) has filed W.P.(C) 7464 of 2017 questioning the decision of the DA to not initiate SSR in respect of the imports of Metronidazole originating in or exported from China PR. 26. In the year 1999, an application for initiation of anti-dumping investigation was filed by ADL and Aarey Drugs and Pharmaceutical Ltd. on behalf of the Domestic Industry. The DA initiated such investigation on 29th July 1999. Preliminary findings were issued by the DA on 21st February 2000, recommending provisional ADD. On that basis, the Central Government issued notification No. 44/2000-Cus dated 17th April 2000 imposing interim ADD for a period of six months. 27. On 14th July 2000, the DA issued its Final Findings, recommending definitive ADD on import of the subject good from China. Said definitive ADD was imposed by notification No. 115/2000-Cus dated 31st August 2000 which was to be valid up to 14th July 2005. 28. On 8th April 2005, ADL, along with Unichem Laboratories Ltd., Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble shows that there is all round improvement of the domestic industry. DGCIS imports data also shows that there is no injury to the domestic industry even after secession of anti-dumping duty. It is evident from the above analysis that the domestic industry is in sound footing when the production, sale, export to other country, capacity utilisation, profitability, capital employes, etc. In spite of 16 years protection given to the domestic producer and all round improvement of performance it is established that extension of Anti-dumping duty for further period is not at all required for public interest. 31.3 Regarding the excess capacity of Chinese exporters the DA made the following observation: Regarding the likelihood analysis of Chinese exporters capacity, it is well known that China is exporting to the whole world and that they are inherently export oriented. Their installed capacities aren t targeting India only. Therefore, the installed capacity in China is NO indicator of their available capacity to export to India. The steadily declining Chonese exports to India over the past few years with same amount of ADD duty in place can be seen as an indicator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of ADD. The relevant portion of the said order reads as under: 3. The present application was listed today to consider whether the ADD that was imposed by the Notification No. 40/2012Customs dated 30th August 2012 and which expires today, i.e. August 2017, should be continued as a consequence of this Court having directed the Respondents to initiate the SSR. 4. In the impugned order dated 22nd August 2017, the DA has, after examining the Petitioner's application under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 ('Anti-Dumping Rules'), observed prima facie as under: (a) the subject good has been imported in significant amounts by the applicant during the POI; (b) the information and data provided in the application regarding injury; threat of injury, and causal link between dumped import and injury and taking into account other relevant factors, including the volume of dump imports, their effect on the price, etc., in accordance with the principles set out in Annexure-II of the Rules - do not evidence any injury to the DI; (c) sufficient evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic industry' under Rule 2(b) of the Anti-Dumping Rules. 8. Mr. Sethi further points out that in the petition filed by it seeking initiation of the SSR, the Petitioner had given sufficient details to show what impact of the cessation of ADD is likely to be on the domestic industry. In particular, he refers to Table 6 which sets out dumping margin in past investigations and Table 7 regarding capacity with Chinese importers to demonstrate that the surviving domestic industry which is essentially the Petitioner, which is both manufacturing and exporting Metronidazole will be snuffed out if the ADD were to be withdrawn. To make good this point, Mr. Sethi has presented to the Court in a tabular form what might be the result of the cessation of ADD on the price at which Metronidazole is made available by the domestic industry. According to these statistics, there will be a price undercutting to an extent of ₹ 71.73 per g. if the ADD were cease to operate. In terms of market share held by China PR in the Indian market, the data shows how during the period of inquiry with the ADD being in place, the market share of China PR entities had dropped to 36%. However, if the ADD i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment declining to initiate the SSR for some reason, it was not prior to the expiry of the notification imposing the ADD. In fact, in Kumho there was a considerable gap between the expiry of the notification imposing ADD and the decision of the Central Government extending the validity of the imposition of the ADD. It was in those facts and circumstances that the Supreme Court had to observe as under in paras 30 and 32 of its decision as under: 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 that the exercise of sunset review also demands complete procedure to be followed, in consonance with the principles of natural justice that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different places in the same Section, i.e.. Section 9A of the Act. In such a scenario, it has to be presumed that different expressions were consciously chosen by the Legislature to be used, and it clearly understood the implications thereof, therefore, when the word 'may' is used in the same Section in contradistinction to the word 'shall' at other places in that very Section, it is difficult to interpret the word 'may' as 'shall'. Therefore, it is difficult to read the word 'may' as 'shall'. Our conclusion gets strengthened when we keep in mind following additional factors. 13. In the present case, however, the Petitioner representing the domestic industry has approached the Court prior to the actual cessation of the ADD under the original notification which is why the Court has placed the matter for hearing today itself. There is no delay in the Petitioner approaching the Court. The impugned order is dated 22nd August 2017 and the present petition was filed immediately thereafter and heard first on 25th August 2017. 14. Having, by an interim order, directed the initiation of the SSR subject to the final outcome of the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en continued. In this context, it must be understood that the continuation of the ADD is not for an indefinite period. Even in terms of the 2nd proviso to Section 9A (5) of the CTA, the ADD can continue only for a period extending one year pending the outcome of the SSR. The hiatus that might be caused as a result of the SSR not coming to a conclusion and there being no possibility of further continuation of the ADD has been touched upon by the Supreme Court in its decision in Kumho. 20. Further, as far is the present case is concerned, the Court is satisfied that the balance of convenience in directing continuation of the ADD pending the conclusion of the SSR subject, of course, to the outer limit of one year as stipulated in the 2nd proviso to Section 9A(5) of the CTA, is in favour of the Petitioner. The Court would like to add that, by way of balancing the equities, in the event ultimately it is found that the decision of the Central Government not to initiate the SSR was correct, the ADD collected from the importers of the product from China PR during the period of the SSR can be refunded to such importers. 21. Accordingly, the Court directs that the ADD that was init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional SGD was imposed by Notification No. 3/2014-Cus (SG) dated 28th August 2014. Thereafter, the Final Findings recommending imposition of SGD on the import of the subject goods was issued on 9th October 2014. Pursuant thereto, the Central Government (Respondent No. 2) issued a Notification on 13th March 2015 imposing SGD. 39. Towards the expiry of the period of two years on 21st November 2016, VVF filed an application before the DGS for initiation of the review investigation under Section 8B of the CTA, to examine the need for continued imposition of SGD and to extend the period of levy. 40. The DGS, by its letter dated 24th January 2017, called for further information and this was provided by VVF by its letter dated 30th January 2017. Thereafter, by the impugned letter dated 21st February 2017, the DGS rejected the request as a result of which the present writ petition was filed. 41. The prayer in the writ petition is for initiation of SSR and for continuation of the SGD. In the present writ petition notices were issued on 27th February 2017 and thereafter, pleadings were completed. ADD and SGD 42. At the outset, it is important to note that an importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (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 sub-section (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 appropriate third country as determined in accordance with the rules made under sub-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 accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 purposes of this sub-section, the expression hundred per cent export-oriented undertaking shall have the meaning assigned to it in Explanation 2 to sub-section (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 exporter practices dumping and that such dumping would cause 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 to be levied, the Central Government may, by notification in the Official Gazette, levy Anti-Dumping duty retrospectively from a date prior to the date of imposition of Anti-Dumping duty under sub-section (2) but not beyond ninety days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Section 9AA. Refund of anti-dumping duty in certain cases. (1) Whereupon determination by an officer authorised in this behalf by the Central Government under clause (ii) of subsection (2), an importer proves to the satisfaction of the Central Government that he has paid anti-dumping duty imposed under sub-section (1) of section 9A on any article. In excess of the actual margin of dumping in relation to such article, the Central Government shall, as soon as may be, reduce such antidumping duty as is in excess of actual margin of dumping so determined, in relation to such article or such importer, and such import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignated authority shall recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said antidumping duty is removed or varied and is therefore no longer warranted. (1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive antidumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to the expiry of that period, that the expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry. 47. Trade Notice No. 2/2011, issued by the DA on 6th June 2011, states in para 3 that: 3. It has been decided that reasonable period of time for the purpose of sub-rule 23(1B) shall be 90 days prior to the date of expiry of the anti-dumping duty. 48. The DA is expected to initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess laid down in Rule 6. It is pointed out that the DA has completely misconstrued the expression duly substantiated application . 52. The relevant parameters for continuation of duties in an SSR include the following: i. Sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to Indian markets, taking into account the availability of other export markets to absorb any additional exports; ii. Whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and iii. Inventories of the article being investigated. iv. Dumping in third countries. v. Likely impact of the imports (in the absence of duty), on the economic parameters for the domestic industry, including production, sales, capacity utilization, etc. vi. Export orientation of the foreign producers/exporters. 53. It is pointed out that in other jurisdictions, like the European Union ( EU ), the USA, Canada, Australia, etc., a whole host of other factors weighed in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to the domestic industry as a result of the non-continuation of the ADD, the DA is not under a compulsion to nevertheless initiate the SSR. Both sides have placed considerable reliance on the decision in Union of India v. Kumho Petrochemicals Co. Ltd. (2017) 8 SCC 307 (hereafter Kumho ) in support of their respective contentions on this aspect. The Court, therefore, proceeds to examine the said decision. The decision in Kumho 57. In Kumho, the Supreme Court was called upon to interpret Section 9A of the CTA read with Rule 23 of the ADD Rules. On the facts of said case, after an SSR, a second notification dated 2nd January 2009 was issued imposing ADD on import of Acrylic Nitro Butadiene Rubber originating from Korea RP. The said ADD was to come to an end on 1st January 2014. The notification proposing the SSR was issued only on 6th January 2014. Since the above notification was issued after the expiry of the original notification, a question arose as to whether the exercise of undertaking an SSR was impermissible. The notification was dated 31st December 2013 but was sent to Kitab Mahal Book Store for publication only on 6th January 2014. The further question th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al notification. It is because of the reason that the exercise of sunset review also demands complete procedure to be followed, in consonance with the principles of natural justice that was followed while imposing the anti-dumping duty in the first instance. To put it otherwise, this exercise contemplates hearing the views of all stakeholders by giving them adequate opportunity in this behalf and thereafter arriving at a conclusion that the continuation of the anti-dumping duty is justified, otherwise injury to the domestic industry is likely to continue or reoccur, if the said anti-dumping duty is removed or varied Since this /exercise is likely to take some time and may go beyond the period stipulated in the original notification imposing anti-dumping duty in to vacuum in the interregnum, second proviso to sub-section (5) of Section 9A of the Act empowers the Central Government to continue the antidumping duty for a further period not exceeding one year, pending the outcome of such a review. The question, however, is as to whether this extension to fill the void that may be created during the pendency of the sunset review is exercised is automatic, once the decision is taken to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or tax can be imposed without the authority of 'law'. Here, such a law has to be in the form of an appropriate notification and in the absence thereof the duty, which is in the form of a tax, cannot be extracted as, otherwise, it would violate the provisions of Article 265 of the Constitution of India. As a fortiori, it becomes apparent that the Government is to exercise its power to issue a requisite notification. In this hue, the expression 'may' in the second proviso to sub-section (5) has to be read as enabling power which gives discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, becomes an enabling provision. 32. We are conscious of the fact that once sunset review is initiated, such initiation takes place only after a substantiated application/request is filed by the indigenous industry which is examined and a prima facie view is formed by the Central Government to the effect that such a review is necessitated as withdrawal of Anti-Dumping duty or cessation thereof may be prejudicial to the indigenous industry. Once such an opinion is formed and the sunset review is initiated, in all likelihood the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis supplied) 60. In the circumstances, where there was a gap between the expiry of the earlier ADD notification and issue of the new notification not prior to the expiry date but only on 23rd January 2014, the Supreme Court held as under: 40. Two things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposing anti-dumping duty. Even otherwise Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending a non-existing Notification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the one in Kumho require to be examined. Decisions earlier to Kumho 66.1 In Rishiroop Polymers v. Designated Authority (2006) 4 SCC 303 , the Supreme Court was concerned with a case where the domestic industry (represented by the Respondent No. 3 therein) filed an anti-dumping petition before the DA under Section 9A of the CTA stating that the import of Acrylonitrile Butadiene Rubber ( ABR ) from specified countries was causing injury to its production. After it was satisfied that such was indeed the case, the DA recommended the levy of ADD. Consequent thereto, the Central Government imposed the ADD under Rule 18 of the ADD Rules. After the importer, who was the sole agent of the ABR manufactured by the foreign exporters failed before the CESTAT, it approached the Supreme Court. It was contended by the Appellant that while assessing injury, the DA had not followed the principles contained in para (iv) of Annexure-2 of the Rules. It was pointed out on behalf of the Respondents that such a contention was not raised before the CESTAT and could not, therefore, be raised for the first time before the Supreme Court. 66.2 The Supreme Court agreed with the Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty for another period of five years. This is subject to the provisions of sub-rule (1) of Rule 23 of the Anti-Dumping Rules under which the Designated Authority is empowered to review the anti-dumping duty imposed from time to time. Having regard to the scheme of the abovementioned provisions of the statute, once antidumping duty has been initially imposed, it would be ordinarily continued for five years unless on a review it is found by the Designated Authority that there has been such a significant change in the facts and circumstances, that it is considered necessary either to withdraw or modify, appropriately the antidumping duty which has been imposed. It is, therefore, clear that unless the Designated Authority suo motu or the applicant for review is in a position to establish clearly that there has been, a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the finding given by the Designated Authority at the time of initial imposition of anti-dumping duty must be considered to continue to hold the field. 38. The final findings recorded by the Designated Authority at the time of init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the imports and the NIP. 67.3 The Central Government, on the basis of the above final findings, imposed ADD on PTA originating from or exported from Spain at a certain rate. It declined to impose ADD on the imports from other countries. RIL filed an appeal before the CESTAT seeking enhancement of the ADD in the case of exports from Spain and imposition of ADD on exports from other countries. However, the CESTAT declined the plea and, therefore, RIL approached the Supreme Court. 67.4 Before the Supreme Court, the two main issues for determination were: (i) whether the NIP of PTA was correctly determined; and (ii) the scope of Rule 7 of the ADD Rules. 67.5 The Supreme Court noted that the NIP was determined by the DA on the basis of cost of production (less interest), general and administrative Expenses (SGA) and a fixed rate of return on the capital employed by the domestic industry. However, it was observed that the DA had erred in law because it was required to carry out the determination of injury and computation of NIP for the domestic industry as a whole , and not in respect of any particular company or enterprise. The Court went to the definition of dome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loys Ltd. v. Designated Authority (supra). The Court answered the question with reference to Articles 11.1, 11.2 and 11.3 of the General Agreement on Tariffs and Trade, 1994 and concluded that there was a statutory requirement of an SSR recognized both by the CTA and the ADD Rules and that such SSR may be conducted by the DA suo motu or on an application made by the Domestic Industry. 69. The same approach was adopted in Kalyani Steels Ltd. v. Revenue Secretary 2008 (224) ELT 47 (Del). The correctness of the decision of this Court in Indian Metal and Ferro Alloys Ltd. v. Designated Authority (supra) was questioned by the DA by filing a Special Leave Petition in the Supreme Court. In an order passed in Designated Authority v. Indian Metal Alloys and Ferro Ltd. (2009) 2 SCC 510 , the Supreme Court was of the view that the decision in Reliance Industries v. Designated Authority (supra) requires a re-look. However, the scope of the reference to the larger Bench was limited to the following two questions: (1) Whether the interpretation that anti-dumping duty is country-specific rather than exporter-specific is in consonance with the provisions of Rules 12, 15, 17(3), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated before the expiry of the aforesaid period. iii. No duty or tax can be imposed without the authority of law. It has to be in the form of an appropriate notification and in the absence thereof, ADD cannot be imposed. The expression may in the second proviso to Section 9A (5) gives a discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, becomes an enabling provision. 73. The Court notes that in para 32 of the decision in Kumho, the Supreme Court did say that once the Central Government is of the view that an SSR should be initiated, in all likelihood the Central Government would make use of second proviso and issue notification for continuing the said ADD. At the same time, the Supreme Court clarified that, it cannot be said that without any overt act on the part of the Central Government, there is an automatic continuation. A collective reading of paras 31 and 32 indicates that the Supreme Court declined to interpret the word may occurring in Rule 23 (6) as shall . The two issues in the present cases 74. It is time to return to the two central issues that arise in the present cases: (i) whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion that has to be reached by the DA is upon a review initiated before the expiry of the initial notification. 79. The initiation of the SSR is in terms of Rule 23 (1). It states that ADD imposed under the provision of Section 9A of the Act would remain in force so long as and to the extent necessary, to counteract dumping, which is causing injury . The question that arises is whether, under Rule 23 (1B), the conclusion can be reached by the DA only upon a review, i.e. a review undertaken in terms of Rules 6 to 11 and 16 to 20 of the ADD Rules, which in terms of Rule 23 (3), applies mutatis mutandis to the SSR. In other words, is it a two-stage process whereby, first the DA must be satisfied that, prima facie, some case is to be made out for the purpose of initiating the SSR by undertaking the entire process of the SSR or can it, at the threshold itself, without going through the process of the SSR, come to such conclusion? 80. The difference in the two is that as far as forming a view not to initiate an SSR merely upon consideration of the applications made to it is concerned, the DA does not actually conduct hearings in which all interested parties participate. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DA. 82. In a sealed cover, the detailed report prepared by the DA was presented to the Court. From it, the Court could make out what was in fact considered by the DA. The detailed working of the NIP in each of the cases in relation to the net fixed assets, the working capital, the capital employed, the return on investments has been considered. Likewise, the selling price, the costs of sales, the profit and loss during the period of enquiry has been considered. A very detailed analysis has been undertaken by the DA in arriving at its conclusions. There is a complete substantiation for the conclusions reached by the DA. 83. Merely because it is possible to take another view based on the same material which was placed before the DA does not mean that the Court will interfere with the ultimate decision reached by the DA. It is trite that while the scope of a judicial review will extend to examining the process of the decision-making in order to ensure that it is in conformity with the ADD Rules and the general principles of natural justice, the Court will not, in exercise of its jurisdiction under Article 226 of the Constitution, sit in appeal over the decision of the DA on meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en they may all be rendered infructuous. This is the danger that exists in such matters. Some procedure will have to be devised to ensure that the entire exercise is completed much before the expiry of the initial ADD notification. How that should be done has to be left to the authorities to determine and perhaps that would require a further refining of the existing ADD Rules and Safeguard Rules. The Court, however, would not like to opine any further on this aspect. 87. Further, considering the question of extending the notification imposing the ADD is not an easy task to perform at the interim stage with all the relevant materials that are placed before the Court. Where the Petitioners are compelled to approach the Court at virtually the last minute , the Court has to proceed on the basis of the materials placed before it by the Petitioners without the benefit of the detailed reports and analysis undertaken by the DA. It is in those circumstances, like for instance in the case of ADL [the Petitioner in W.P. (C) 7464 of 2017], that the Court had passed an interim order directing that the ADD should be continued. 88. However, as it now transpires, having had the benefit of t ..... 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