TaxTMI 
TaxTMI 
2015 (1) TMI 121
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...., who are the domestic manufacturers of the product, the Designated Authority under the Customs Tariff Act, 1975, initiated an anti dumping investigation on 11.4.2013. The period for completion of the investigation in terms of Rule 17(1) of the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, expired on 10.4.2014. Despite the fact the Designated Authority sought extension of time under the first proviso to Rule 17(1), the Central Government passed an order only on 12.5.2014 granting extension of time upto 10.7.2014. Since the investigation could not be completed even within 10.7.2014, another order of extension was passed on 10.7.2014 granting time upto 10.10.2014. 4. In the meantime, the petitioner came to know about the first extension granted on 12.5.2014, by a communication issued by the second respondent on 5.6.2014. Thereafter, contending that no extension of time can be granted after the expiry of the initial period, the petitioner has come up with the above writ petition. 5. The only issue that arises for consideration in this writ petition is as to whether an extension of t....
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....rmined 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 accordance with the rules made under sub-section (6); PROVIDED that in the case....
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....s 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. (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 inquiry 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 date of notification under that sub-section, and notwithstanding anything contained in any law for the time bei....
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....d, be laid before each House of Parliament. (8) The provisions of the Customs Act, 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." 36. What is contemplated in Sub-section (1-A), is an enquiry to find out whether there was circumvention of anti-dumping duty imposed under Sub-section (1), either by altering the description or the composition of the article, or by the import of such article in an unassembled or disassembled form. The nature of the enquiry contemplated under Sub-section (2) is to arrive at the provisional estimate of the normal value and margin, pending final determination. What is contemplated in Sub-sections (6) and (6-A), is an enquiry regarding the margin of dumping. 37. Since the nature of the enquiry contemplated under different Sub-sections of Section 9-A are different, no time limit is prescribed by the Act, either for the initiation or for the conclusion of an ....
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....at is to be extended, should be in existence on the date of extension. The Court also held that once the period stipulated expires, a vested right accrues to the party and that the said vested right cannot be taken away by the extension of time granted after the expiry. 41. But, the decision in Tarsem Kumar, may not be of any assistance to the petitioner, in view of the fact that under Section 110(1) of the Customs Act read with Section 124, a liability is imposed upon the Customs Officer to return the article that was seized, to the person from whom it was seized. In other words, the immediate consequence of the expiry of the period of six months is indicated in the statutory provision itself and hence, the Punjab and Haryana High Court interpreted the said provision as aforesaid. 42. In National Industrial Corporation Limited v. Registrar of Companies [AIR 1963 Punjab 239], the Punjab High Court was concerned with a challenge to the order of the Registrar of Companies refusing to accept the change of address of the registered office of the company, on the ground that the period stipulated under Section 18 of the Companies Act, 1956 had expired. The Court pointed out that th....
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....he schedule specifically mentioned the lease as 'for a stipulated period of 20 years'. As these words are very clear, there is very little for the court to do about it." 44. But, the ratio laid down in this case also may not be of any assistance to the petitioner. This is in view of the fact that upon the expiry of the prescribed period, a statutory right was conferred upon the party and hence, the Court felt that nothing could be done to divest the party of such a right, post facto. 45. In Kumho Petrochemicals Co. Ltd. v. Union of India [W.P.(C).No.1851 of 2014, C.M.Nos.3866 and 3877 of 2014 etc. cases dated 11.7.2014], a Division Bench of the Delhi High Court was concerned with the validity of the Central Government's decision to initiate anti dumping duty extension proceedings under Section 9A of the Customs Tariff Act, 1975. The challenge to the Notification was made on the ground that an extension ought to have been notified in the Official Gazette and published before the expiry of the five year period from the date of original Notification, so as to enable the Government to invoke the sunset review clause. The contention was upheld by the Division Bench on ....
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....nature and once the products, in respect of which, such rights are enjoyed, come into public domain, the clock cannot be put back. 48. In Ambali Karthikeyan v. Collector of Customs [2000 (125) ELT 50 (Ker.)], the Kerala High Court was concerned with the interpretation of Section 110(2) of the Customs Act, 1962, under which, the goods, which are seized, are liable to be returned to the person, from whom they are seized, if no notice is given under Section 124(a). The proviso to Section 110(2) enabled the Collector of Customs to extend the period of six months by another period not exceeding six months. It is in that context that the Kerala High Court held that the extension contemplated under the proviso to Section 110(2) should have been ordered before the expiry of the original period. 49. In Babu Verghese v. Bar Council of Kerala [(1999) 3 SCC 422], the Supreme Court was concerned with a case arising out of very interesting and peculiar circumstances. The Bar Council of Kerala, which was constituted on 28.01.1992 for a term of five years, approached the Bar Council of India for extension of its term by six months, to enable it to hold elections. Since the term was to expire....
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....s legislation is to levy additional duties upon articles of import. Sections 9-A, 9-B and 9-C were inserted, with a view to neutralise the effect of articles of foreign origin being brought into India at less than their normal value. The only prescription with regard to any time limit, contemplated by the Act, is to be found in Sub-section (5) of Section 9-A. No time limit is prescribed therein either for the initiation of an investigation or for the recording of final findings. As a matter of fact, any delay in the recording of final findings, actually enures to the benefit of the person on whom anti-dumping duty is levied, since the levy comes into effect only from the date of issue of the notification. If we keep this fundamental aspect in mind, it will be clear that the time limit of one year prescribed under Rule 17(1) and the procedure prescribed in the first proviso thereto, is not intended to confer any benefit upon the importer in India or the exporter from outside the territory of India. 53. No right is created or gets vested in the importer, upon the expiry of the period stipulated in Rule 17(1). Similarly, no right which is vested in the importer is taken away by the....
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....se. The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting therefrom when the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject as well as other considerations which may arise on the facts of a particular case, including the language of the provision. The said decision of the Constitution Bench was followed in Salem Advocate Bar vs. Union of India [2005 (6) SCC 344]. While doing so, the Supreme Court pointed out therein that our laws on procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their back, that proceedings that affect their lives and properties should not continue in their absence and that they should not be precluded from participating in them. 58. In Sharif-Ud-Din vs. Abdul Gani Lone [AIR 1980 SC 303], the Supreme Court indicated that the question whether a provision of law is mandatory or not depends upon its language, the con....
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.... the orders of the Income Tax Officer and a reference was made to the High Court. Having regard to the proviso to Section 139(2), which did not contain any limitation to the effect that an application for extension should be filed within the stipulated time, the High Court held that an application for extension of time can be made even after the expiry of that period. The view taken by the High Court in the tax case reference was upheld by the Supreme Court in Ajanta Electricals. While doing so, the Supreme Court pointed out that there is no scope for interpreting the word "extend" appearing in the proviso to Section 139(2) to mean that at the time of making the application, the time originally allowed should not have expired. To come to the said conclusion in paragraph 10 of its decision, the Supreme Court drew analogy from Section 148 of the Code of Civil Procedure. Therefore, it is clear that where the word "extend" or "extension" is used in a statute, without any fetters being placed on the manner in which the power to extend is to be exercised, it cannot be contended that such extension ought to be granted before the expiry of the original term. 61. However, Mr.P.S.Raman, l....
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....lear that such extension would commence only from the date of the order of extension. If the expression "extension" used in the first proviso to Sub-section (5) of Section 9-A is to be given the very same meaning as the petitioner wants me to give, there is no necessity for the Parliament to state in the last line of the first proviso that "such further period shall commence from the date of the order of such extension". If an extension, to be valid, has to be ordered before the expiry of the original period, the commencement of the extended period, will be the day following the date of expiry of the first period. Therefore, if the word "extension" had been used in the provisos to Sub-section (5) of Section 9-A, in the sense as projected by the petitioner, the last line of the first proviso would become otiose. The very fact that the last line of the first proviso to Sub-section (5) of Section 9-A speaks about the date of commencement of the order of extension, shows that the Parliament understood and used the expression "extension", in a manner diametrically opposite to what is pleaded before me by the petitioner. 65. If the Parent legislation uses a word or expression, to mean....