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TMI Blog2018 (4) TMI 1726X X X X Extracts X X X X X X X X Extracts X X X X ..... eguarding the interest of those who are likely tobe affected by this order, we direct the concerned respondents to make it explicitly clear to all the concerned that, the Notification/s that may be issued pursuant to our this order would be subject to result of these petitions and will entail the refund of duty that may be levied in case of failure of the petitioners in these petitions. - R/SPECIAL CIVIL APPLICATION NO. 5798 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 5808 of 2018 - - - Dated:- 12-4-2018 - MR. JUSTICE S.R. BRAHMBHATT And MR.JUSTICE A.G.URAIZEE MR MIHIR JOSHI, SENIOR ADVOCATE with MR RAJESH SHARMA, ADVOCATE with MR GAURAV MATHUR, ADVOCATE with MR ABHISHEK SHAH,ADVOCATE for SINGHI AND CO(2725) for the PETITIONER(s) No. 1,2 for the RESPONDENT(s) No. 1,2,3 COMMON ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1.00. Draft Amendments in both the petitions are allowed. The same shall be carried out. 2.00. Both these petitions contain identical challenge to the order dated 5/4/2018 passed by the respondent No.2 on the application of the petitioners dated 29/1/2018 seeking Sunset Review in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such duty is likely 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. 23. Review. - [(1) Any anti-dumping duty imposed under the provisions of section 9A 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 initiative 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 authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to pronounce upon the recurrence of injury at the stage when it was merely called upon to appreciate the substantiated request for initiating Sunset Review application moved by and on behalf of the domestic industry. 4.05. Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the respective petitioner reiterated at the cost of repetition that the principle of determination of injury and para (vii) thereof to indicate that the authority has not adverted thereto in a proper prospective. 4.06. Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the respective petitioner invited attention of the Court to the decision of the Hon ble Supreme Court in the case of Union of India and another Versus Kumho Petrochemicals Company Limited and another, reported in (2017) 8 SCC 307 and laid special emphasis upon the situation which is likely to be created on account of the lapse of time in issuing Notification. Emphasis was laid on paragraph Nos.39, 40 and 43 of the aforesaid decision. The relevant paragraph No.43 of the aforesaid decision deserves to be set out, which reads as under :- 43. Two things which follow from the reading of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the interim order in the case of Aarti Drugs Ltd. Versus Designated Authority, Director General of Anti-Duty and allied Duties, reported in 2017 (354) ELT 161 (Delhi) deserves to be set out in order to appreciate the controversy before the Court, which are reads as under :- 1. The challenge in the writ petition is to the order dated 22nd August,2017 passed by the Designated Authority ( DA ) in the Directorate General of Anti-Dumping Allied Duties, Ministry of Commerce and Industry, Government of India declining to initiate a Sun Set Review ( SSR ) concerning continuation of Anti-Dumping Duty (ADD) on imports of Metronidazole originating in or exported from China to India. 2. When the writ petition was listed for hearing on 25th August,2017, this Court passed the following order: 1. Notice. Mr.Sanjeev Narula, learned CGSC, accepts more notice for the respondents. 2. The issue raised in the present petition, which is a challenge the decision of the Designated Authority ( DA ) declining to initiate a Sun Set Review ( SSR ), is already being considered by this Court in W.P (C) No.146/2017 and batch. In that case, on 11th January, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors, 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 DT; (c) sufficient evidence has not been provided to conclude that there was a likelihood of injury recommencing if the existing Anti-Dumping duty is allowed to lapse. 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 writ petition, the question that arises is whether again by an ad interim order, the Court should direct the continuation of ADD. The Court is conscious that under Section 9A of the CTA, it is the Central Government that has to take a call whether it wants t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 a 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 initiated by Notification No.40/2012, dated 31st August, 2012 will continue till the conclusion of the SSR initiated by the Central Government on the direction of this Court by the order dated 25th August,2017. Needless to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the sametime, looking to the dearth of time and when the petitioners cannot be held to be in any way contributory in passage of time, as they have approached the Court within time, it becomes Court s duty to see to it that balance of convenience is struck so as to avert any irreparable injury to eitherside. We, therefore, are inclined to make some orders as it was made by the Division Bench of the Delhi High Court in the aforesaid decision in similar situation and grant ad-interim relief in terms of para 23(A-1). 6.00. Under the circumstances, RULE, returnable on 19/4/2018. In the meantime, there shall be adinterim relief in terms of para 23(A-1), which reads as under :- 23. (A-1). Pending admission and final hearing of this Petition, this Hon ble Court be pleased to direct the Respondent No.2 to initiate Sunset Review investigation under the provisions of Section 9A(5) of the Act read with Rule 23(1B) of the Rules on or before 16.04.2018 and further direct the Respondent No.1 to issue an appropriate notification in terms of 2nd proviso to Section 9A(5) of the Act for extension/continuation of the Duty imposed by way of Customs Notification dated 18.04.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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