TaxTMI 
TaxTMI 
2014 (7) TMI 732
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....n initiating anti-dumping duty extension proceedings under Section 9A of the Customs Tariff Act, 1975 ("CTA") as well as the validity of notification No. 06/2014-Customs (ADD) by which anti-dumping duty was levied on Acrylonitrile Butadiene Rubber ("the product"), originating in, or exported from Korea RP. The said notification sought to amend a previous one, dated 2nd January 2009 (hereafter "the original notification") by which such anti-dumping duty was levied for five years. 2. The brief facts are that the Central Government, in terms of provisions of the CTA, held inquiry in accordance with Rules framed under that enactment; pursuant to the report furnished by the Designated Authority, the Central Government imposed anti-dumping duty on the product, by notification issued by the Ministry of Finance (Department of Revenue), No. 01/2009-Customs, dated 02-01-2009 (and published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), by G.S.R. 5(E), dated the 2nd January, 2009). The notification in express terms was to be in force for five years, i.e. till 01- 01-2014. 3. The petitioner in W.P.(C) 1851/2014 is a producer and exporter of the product from Kore....
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.... end of the five year period, concludes that 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. Such reviews are commonly referred to as "sunset reviews". 6. The petitioner in W.P.(C) 1851/2014 was subjected to the antidumping duty levy in terms of the original notification, urges that the Central Government could not levy and collect any anti-dumping duty after 01-01-2014. It urges that if the Central Government were of the opinion that such course of action was warranted, by virtue of continuing injury to domestic manufacturers or domestic market on account of practices of such exporters, it ought to have issued a notification in the Gazette in terms of first proviso Section 9A (5) which enables the extension of such anti-dumping duty levy beyond five years. Counsel urges that by virtue of operation of Rules 6, 19, 20 and 23, such extension ought to have been notified in the official Gazette and published before the expiry of the five year period from the date of the original notification, i.e. 02-01-2009. The petitioner buttresses this proposition by placing reliance on the second proviso....
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....ounsel, both the initiation, and the subsequent notification of 23-01-2014 amending a notification which ceased to exist, is invalid and the attempt to enforce it as without authority of law. It was also contended during the hearing that such amendment was impermissible and could not even be sustained by recourse to any provision of the General Clauses Act, 1897, because the original notification - as it had finite life was temporary legislation and, therefore, beyond the purview of that Act. In support of the submission, the counsel relied on the ruling of the Supreme Court in State of Punjab v Mohar Singh AIR 1955 SC 84 where, commenting on the applicability of Section 6 of the General Clauses Act, it was held that: "the consequences laid down in section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute, which is of a temporary nature, automatically expires by efflux of time." Reliance is also placed on the judgment reported as Jindal Oil Mill & Ors vs Godhra Electricity Co. Ltd AIR 1969 SC 1225. 9. It was contended on behalf of the Union of India, the Designated Authority as well ....
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.... upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation. - For the purposes of this section, - (a) "margin of dumping", in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association 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 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 when5[destined for ....
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....ve 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 under-mine 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 date of notification under that sub-section, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force. (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....
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....ion 129 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Appellate Tribunal). The Rules (of 1995) prescribe an elaborate procedure for identification, assessment and collection of anti-dumping duty on dumped articles. The Rules, relevant for the present petition, reads as under: "6. Principles governing investigations. - (1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following :- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views known, . (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the....
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.... 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 a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said anti-dumping duty is removed or varied and is therefore no longer warranted. (1B) Notwithstanding anything contained in sub-rule (1) or(1A), any definitive anti-dumping 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 dity is likely to lead to continuation or recurrence of dumping and injury to the domestic industry. (2) Any review initiated under sub-rule (1) shall be concluded within a period not exc....
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....ted parties to an anti-dumping investigation include the domestic industry on whose complaint the proceedings are initiated; the exporters or the foreign producers of the like articles subject to investigation; the importers of the same article allegedly dumped into India; the Government of the exporting country/countries and the trade or business associations of the domestic producers/importers/user industries of the dumped product. 15. The Designated Authority is expected generally to initiate proceedings for anti-dumping action on the basis of a petition received from the domestic industry alleging dumping of certain goods and the injury caused to it by such dumping. However, Rule 5(4) provides for suo motu initiation of anti-dumping proceedings by the Designated Authority on the basis of information received from the Collector of Customs appointed under the Customs Act, 1962 or from any other source. In such circumstances, the Authority initiates the anti-dumping investigation on its own without any complaint/petition filed in this regard provided the Authority is satisfied that sufficient evidence exists as to the existence of dumping, injury and causal link between the dumpe....
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....be levied retrospectively beyond 90 days from the date of issue of notification imposing duty (Section 9A (3)). Analysis and findings 17. In the present case, the first- original notification of 02-01- 2009- was preceded by an inquiry in terms of the Act and Rules. There is no controversy about its validity for the first period of five years. The petitioners' argument are two-fold, i.e. that a fair reading of Section 9A (5) second proviso with Rules mandate that a valid sunset review should be initiated and publicly made aware to the concerned parties, before the expiry of five years and secondly, that the extension of the anti-dumping duty for a further one year period, till 01-01-2015, through the notification of 23-01-2013, is without authority of law. 18. The decision in Automotive Tyre Manufacturers v Designated Authority (2011) 2 SCC 258, establishes that the functions of a designated authority, which determines the existence of dumping and extent of injury, are quasi-judicial. It therefore, has to conform to principles of natural justice: "the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we ....
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....rticipate and give their views in a proceeding that is likely to culminate in an adverse report. It is only after the report is accepted and the Central Government decides to levy the duty that the requirement of publishing the notification levying the duty in the official Gazette, operates. The rationale for a public notice, followed by individual notices to foreign exporters and governments is the likelihood of their interests being affected by any investigation to determine dumping effects on articles exported by them. Rule 23(3) states that provisions of Rule 6 would apply "mutatis mutandis". It does not in any manner make the publication of notice initiating the sunset review or making available of the public notice or individual notice, a precondition for initiation of the inquiry under first proviso to Section 9-A (5). As long as the initiation is shown to have been before the expiry, and public notice is made available within a proximate period from that date, the inquiry should be held valid. The consequence of holding that an initiation would not be valid unless notice in that regard is made available individually, or to the public, before expiration of the period of the ....
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....(See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC 1406),Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd. and Ors. (1994 (5) SCC 672)." 21. If the court were to accept the petitioners' argument about the compelling nature of the requirement that for a sunset review to be valid, not only should it be shown to be initiated before the expiration of the period of the original notification, but also that the public notice in that regard should be shown to be issued and made available before the period, it would be doing violence to the statute. Apart from the consequence spelt out in second proviso to Section 9A (5), there is none other. The reference to Rule 6, mutatis mutandis in Rule 23 merely alerts the reviewing authority that it has to follow the procedure, and comply with natural justice. As long as it is shown that the initiation is done within the time, and public notice issued within proximate time, the sunset review is valid. There could be cases, where the initiation might be within time, but public notice is unreasonably delayed; in such instances,....
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....n 9A and the notification published is a one-time measure; however, the need for review was contemplated in Article 11.1, 11.2 and 11.3 of the agreement for implementation of Article VI of GATT ("Implementation Agreement"). The said provisions read as follows: "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 imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately. 11.3 Notwithstanding th....
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....econd proviso truly carves out an exception and makes the levy which otherwise would be invalid, on account of the operation of the main part, i.e. Section 9A (5), valid if its conditions are fulfilled. 24. This court holds that the petitioners' submission that a notification under Section 9A (1) issued after review is in the nature of temporary legislation, is merited. A statute is ordinarily perpetual, in the sense that no time is fixed for its duration. In that sense Section 9A is perpetual. However, that provision is merely enabling; it authorizes a levy of anti-dumping duty upon proof of injury, and upon fulfillment of other conditions. Once notified, the levy has effect - in terms of the notification and Section 9A (5) for five years. That levy is consequently, temporary as the duration is finite. In these circumstances, Section 6 of the General Clauses Act, which provides that notifications, bye-laws etc. validly made under a repealed law can continue to be in force, would have no application. This position was clarified by the Supreme Court in District Mining Officer and others v. Tata Iron and Steel Co. & Anr AIR 2001 SC 3134, where the question as to what is a "tempo....