9911796707
TMI Blog2007 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... ged by the Petitioner before the Customs, Excise and Service Tax Appellate Tribunal (for short the Tribunal) and in its decision dated 2nd August, 2006 [2006 (203) E.L.T. 418 (Tri. Del.)] the Tribunal set aside the impugned Notification but declined to extend the imposition of antidumping duty beyond the initial period of 5 years. Therefore, the prayer of the Petitioner before us is that effectively we should continue the anti-dumping duty imposed by the Central Government by the Notification dated 26th December, 2000 read with the Notification dated 25th June, 2001 beyond the original period of 5 years. 4. Against the decision dated 2nd August, 2006, the Petitioner preferred an appeal in this Court being Cus. A.C. No. 16/2006. On 7th May, 2007, the appeal was admitted and the following substantial question of law was framed for consideration : - "Whether the Customs, Excise and Service Tax Appellate Tribunal was right in law in holding that under the first proviso to Section 9A(5) of the Customs Tariff Act, 1975 the Central Government cannot extend the period of imposition of anti-dumping duty in view of the main part of Section 9A(5) of the Act." 5. Essentially since the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Authority under the Act to carry out a mid-term review of the anti-dumping duty on the subject goods imported from Russia, China and Ukraine. The purpose of a mid-term review, as contemplated by Section 9A(5) of the Act read with Rule 23 of the Rules is to ascertain whether there is any justification for continuing with the anti-dumping duty. 11. Section 9A(5) of the Act and Rule 23 of the Rules read as follows : "9A. Anti-dumping duty on dumped articles. - (1) to (4) xxx xxx xxx (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of 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 continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was captioned as an initiation of a mid-term review, it was in letter and spirit a "sunset review" in terms of the first proviso to Section 9A(5) of the Act. 14. Apparently realizing that what was intended was a mid-term review (though the language employed was different) or perhaps back tracking on its stated intention, the Designated Authority issued a Corrigendum dated 5th January, 2005 to the public notice dated 24th May, 2004. The original paragraph 3 was substituted by the following paragraph : "Having decided to review the final findings notified vide No. 31/1/99 dated 1st June, 2001 and final duty imposed on 26th June, 2001, the Authority hereby initiates mid-term review investigations to review the need for the continued imposition of anti-dumping duty on imports of certain types/grades of alloy and non-alloy steel billets, bars and rounds originating in or exported from Russia and China PR in accordance with the Customs Tariff (Amendment) Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995." 15. In the meanwhile, proceedings continued before the Designated Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any further information." 16. In view of the corrigendum dated 5th January, 2005, the focus of investigations by the Designated Authority shifted from a sunset review to a midterm review, that is to say from continuation of the anti-dumping duty beyond a period of five years to the justification for continuing the anti-dumping duty for the existing period of five years. 17. There is no dispute between the parties that procedural formalities resulting from the shift in focus were duly carried out and eventually the Designated Authority gave its final findings which were gazetted on 20th May, 2005. As per the final findings, the recommendation of the Designated Authority was as follows :- "Having concluded that no material injury to the domestic industry has been established on account of dumped imports of subject goods from the subject countries and there is no likelihood of recurrence of injury on account of import of subject goods from subject countries, the Authority finds no justification for continuation of the duty against subject countries and therefore, in terms of Rule 23 of the said Rules recommends revocation of anti-dumping duty in force against subject countries i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner before the Tribunal was eventually taken up for final disposal and by an order dated 2nd August, 2006, the appeal was allowed to the extent that the final findings dated 20th May, 2005 given by the Designated Authority as well as the Notification dated 19th July, 2005 were set aside by the Tribunal. 24. It appears that before the Tribunal the Petitioner had contended that the imposition of anti-dumping duty may be continued for a period of five years beyond 25th December, 2005 since there was adequate material available on record to suggest that the conditions of the first proviso to Section 9A(5) of the Act were fulfilled. This contention was rejected by the Tribunal in the following words :- "The contention that we should extend the imposition of duty for a further period of five years cannot be countenanced. When the review is initiated for determining whether as a result thereof, anti-dumping duty should be revoked before the expiry of the period of five years, obviously its continuance beyond five years can never be a matter under consideration in such a review, because, the impost itself was for a statutory duration of five years, and the question of continuance can ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel for the Petitioner is that the conditions postulated by the first proviso to Section 9A(5) of the Act are met, inasmuch as the cessation of anti-dumping duty is more than likely to lead to continuation and recurrence of dumping and also injury to the domestic industry. This was repeatedly stated by the domestic industry in all its representations before the Designated Authority which had initially intended to look into the question of recurrence of dumping and injury to the domestic industry when it issued the public notice dated 24th May, 2004. However, for some reason, the Designated Authority decided to convert the "sunset review" postulated by the first proviso to Section 9A(5) of the Act into a mid-term review. It is submitted that even if the original intention of the Designated Authority was only to conduct a mid-term review, there was certainly no bar on its conducting a sunset review when adequate materials were placed before the Designated Authority. Moreover, the prayer that a sunset review should be conducted was made by the domestic industry on more than one occasion before the Designated Authority. Even assuming that the Designated Authority could not cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recurrence of dumping and injury to the domestic industry the least that could be expected from the Central Government is to consider the issue whether anti-dumping duty should be continued beyond the initial period of five years or not. This is because the domestic industry had voiced its apprehensions repeatedly in the representation dated 27th July, 2004, the written submissions filed subsequent to the oral hearing granted by the Designated Authority on 7th December, 2004 and the rejoinder submissions dated 3rd January, 2005. It was, therefore, incumbent on the Designated Authority or the Central Government to have applied its mind to the representations made by the domestic industry and taken a view thereon, one way or the other. This was not done by the Central Government leading to the filing of the writ petition which we are considering. 30. The counter affidavit filed by the Central Government seeks to justify the non-consideration of the representation of the domestic industry by making a distinction between Article 11.3 of the Anti-Dumping Agreement and the law as enacted in India. The contention of the Central Government is that the municipal law will override the Anti- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing duty should cease or should continue for a further period of five years. The parameters laid down by the municipal law as well as Article 11.3 of the Anti-Dumping Agreement are the same, namely, that the cessation of anti-dumping duty would lead to continuation or recurrence of dumping and injury to the domestic industry. The error that the Central Government has made in its interpretation of the municipal law is that it has given a very restricted meaning to Section 9A(5) of the Act read with Rule 23 of the Rules. 31. It is true that neither Section 9A(5) of the Act nor Rule 23 of the Rules mention a mid-term review or a sunset review but it is quite clear that the first proviso to Section 9A(5) of the Act refers to nothing else but a sunset review as commonly understood. Rule 23 of the Rules clearly applies to a mid-term review (as suggested by the Central Government). The question is, does it apply to a sunset review also. If the answer is in the negative, as sought to be suggested in the counter affidavit of the Central Government, it would only mean that the power conferred by the first proviso to Section 9A(5) of the Act is completely uncanalized and no procedure is laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind to the question whether anti-dumping duty should continue beyond 25th December, 2005 although the domestic industry has represented for its continuation. Under the circumstances, the only relief that can be granted to the Petitioner is that the Central Government must consider the question, in exercise of powers conferred by the first proviso to Section 9A(5) of the Act, whether anti-dumping duty on the subject goods should continue for a period of five years from 25th December, 2005. The procedure that the Central Government is required to follow is laid down in Rule 23(3) of the Rules. 36. Since almost two years have gone by in the litigation initiated by the Petitioner before the Tribunal as well as before this Court, we cannot really turn the clock back to December, 2005. We are also of the opinion that some importers of the subject goods, such as Respondent No. 3 and perhaps others may have already entered into contracts for the import of seamless grade alloy and non-alloy steel billets, bars and rounds originating in or exported from Russia and China. It would not be appropriate to interfere with the contractual liabilities that have already been established since it may ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
