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2016 (1) TMI 287
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....Butadiene Rubber (NBR) imported from Korea RP. The third writ petition is concerned with the issue of anti-dumping duty on imports of Phenol. 2. In the first two writ petitions concerning NBR, the challenge, inter alia, is to the Office Memorandum No. 354/179/2002-TRU (Pt.V) dated 24.12.2014 issued by the respondent No. 1. There is also a prayer seeking the quashing of proceedings conducted after the end of 12 months from the date of initiation of the review initiated by notice bearing F.No. 15/29/2013 dated 31.12.2013. In the third writ petition, concerning Phenol, inter alia, quashing of the proceedings conducted after the end of 12 months from the date of initiation of the review initiated by the notice No. 15/21/2013-DGAD dated 28.10.2013 has been sought. 3. The point for consideration in these writ petitions is common. It is the case of the petitioners that by virtue of rule 23(2) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as "the said rules"), a review when initiated in terms of sub-rule (1) of rule 23 has to be concluded within a period no....
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....s took the preliminary objection that the petitioners had an alternative remedy and that, therefore, the writ petitions were not maintainable. The response of the petitioners was that the fundamental question raised in these petitions was not whether the conclusions and recommendations of the designated authority was right or wrong on merits but whether the designated authority had the jurisdiction to proceed with the review beyond the period of 12 months from the initiation of the review' In other words, the challenge, which went to the root of the matter, was to the extension of 6 months granted by the Central Government. According to the petitioners, the review had mandatorily to be concluded within the said 12- month period and no extension of that period was permitted in law. On the other hand, the respondents contended that by virtue of rule 23(3) of the said rules, the provisions of, inter alia, rule 17 were made applicable mutatis mutandis in the case of a review. And, since the first proviso to rule 17(1) permitted the Central Government, in its discretion in special circumstances, to extend the period of 1 year for submission of final findings by the designated authority ....
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.... submitted that the 'rule' of mutatis mutandis is one of adaptation and not of adoption. Reliance was placed on the following decisions:- 1. Ashok Service Centre v. State of Orissa: (1983) 2 SCC 82; 2. Janba v. Gopikabai: (2000) 4 SCC 1; 3. Rajasthan State Industrial Development and Investment Corporation v. Diamond & Gems Corporation Ltd: (2013) 5 SCC 470. 9. The argument was that rule 17 is to be read with necessary changes as specifically provided in rule 23(2) and, therefore, since no extension is provided for in rule 23(2), that part of rule 17 which permits extension of time would not apply. 10. On the part of the respondents it was argued that by virtue of the provisions of rule 23(3), rule 17 has been incorporated in rule 23 which includes rule 23(2). Thus the first proviso to rule 17(1) would clearly apply, mutatis mutandis, to rule 23(2). Consequently, the learned counsel for the respondents submitted, the initial period of 12 months laid down in rule 23(2) for concluding a review can be extended by 6 months by the Central government, by reading the first proviso to rule 17(1) into rule 23(2). 11. In respect of the argument of the petit....
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....itiative 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 the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their 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 tha....
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....trospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy: Provided that the Central government may, in its discretion in special circumstances, extend further the aforesaid period of one year by six months: xxxxx xxxxx xxxxx xxxxx xxxxx" (underlining added) "RULE 23. Review. - (1) Any anti-dumping duty imposed under the provision 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 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....
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....ose provisions are not relevant in the case of a review. Rules 12 (Preliminary findings), 13 (Levy of provisional duty), 14 (Termination of investigation) and 15 (Suspension or termination of investigation on price undertaking), which apparently are not germane in the case of a review, have not been made applicable under rule 23(3) to a review. So, only those provisions pertaining to investigation, final findings and levy of duty etc., which are relevant to a case of review have been made applicable mutatis mutandis. Rule 17, which includes the first proviso to rule 17(1), is one such provision. 16. The learned counsel for the petitioners had laid great stress on the use of the expression - mutatis mutandis. A reference was made to Black's Law Dictionary (10th Edition: Thomson Reuters) where the meaning of the said expression has been given as: "mutatis mutandis (myoo-tay-tis myoo-tan-dis). [Latin] (16c) All necessary changes having been made; with necessary changes ." Reliance was also placed on Ashok Service Centre (supra), Janba (supra) and Rajasthan State Industrial Development and Investment Corporation (supra)[hereinafter referred to as RSIDC] in the context of....
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.... what was due and payable by an assessee under the principal Act. The Act, though it had a long title, a short title and other usual features of every statute, could not be considered as an independent statute. It had to be read together with the principal Act to be effective. In the circumstances the conclusion reached by the High Court that the two Acts were independent of each other was wrong. We are of the view that it is necessary to read and to construe the two Acts together as if the two Acts are one, and while doing so to give effect to the provisions of the Act which is a later one in preference to the provisions of the principal Act wherever the Act has manifested an intention to modify the principal Act......" (underlining added) 17. On the strength of these observations, it was contended by the learned counsel for the petitioners that the application of, inter alia, rule 17 'mutatis mutandis' to a case of review under rule 23 does entail the concept of adaptation, but so far only as it is necessary for the purpose and subject to the express provisions made in rule 23. It was submitted that the express provision contained in rule 23(2) of fixing an outer limi....
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....in any law, usage or contract but subject to the provisions of Section 42 to 44 (both inclusive) a tenant other than an occupancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally. (2) Where the landlord is of the following category, namely- (a) a minor, (b) a widow, (c) *** (d) a person subject to any physical or mental disability, such tenant shall be entitled to purchase the landlord's interest under this section after the expiry of two years from the date on which- (i) the landlord of category (a) attains majority, (ii) *** (iii) the landlord of category (d) ceases to be subject to such disability, and (iv) the interest of the landlord of category (b) in the land ceases to exist: xxxxx xxxxx xxxxx xxxxx xxxxx" "50. Rights of tenant holding land under tenancy restored or created after specified date to purchase land.-(1) Where a tenancy is restored under Section 7, 10, 21, 52 or 128-A or is created by a landlord (not being a landlord within the meaning o....
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....ed to purchase under Section 41 and to "such purchase" the provisions of Sections 41 to 44 would mutatis mutandis apply. The concept of mutatis mutandis as understood in the context of Section 50 would be - Sections 41 to 44 would be applicable with necessary changes in the points of detail to "such purchase", that is to say, where a tenant has exercised his right to purchase the land he can purchase it to the extent permissible under Section 42. Thereafter, those parts of the sections which are pertaining to "such purchase" are made applicable but there is no question of postponing "such purchase" as provided under Section 41(2). Sub-section (2) cannot be made applicable in case of purchase under Section 50, as it does not pertain to the purchase but it is with regard to postponement of "such purchase". This is consistent with other provisions, namely, Sections 46 and 49-A. Under Section 46 deemed purchase is provided from 1-4-1961 except in those cases where the tenant was a minor, a widow, a serving member of the armed forces or a person subject to any physical or mental disability and in those cases deemed purchase was postponed till the disability ceased as mentioned therein. ....
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.... within one year under section 50 (ie., "such purchase"). It is in these circumstances that the postponement of two years provided for in section 41 was not engrafted in section 50. The position in the present petitions is entirely different. As pointed out earlier, rule 23 and sub-rule (3) thereof, in particular, does not manifest an intention to give primacy to rule 23(2) over the first proviso to rule 17(1). On the contrary, from rule 23(3), which immediately follows rule 23(2), the clear intention appears to be to make all the provisions of, inter alia, rule 17, which are applicable in the case of an investigation, to also apply with adaptation (with necessary changes) to the case of a review under rule 23. The scheme of review is substantially similar to the scheme of investigation. Therefore, the decision of the Supreme Court in Janba (supra) does come to the aid of the petitioners. 22. The expression mutatis mutandis was again considered in RSIDIC (supra)in the following manner: "II. Mutatis mutandis-Meaning of 17. In Ashok Service Centre v. State of Orissa [(1983) 2 SCC 82 : 1983 SCC (Tax) 90 : AIR 1983 SC 394] this Court held as under: (SCC p. 93, para....
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.... which, in our view, clinches the case against the petitioners. The question of law which arose for consideration before the Supreme Court was whether anti-dumping duty imposed with respect to imports made during the period between the expiry of the provisional anti-dumping duty and the imposition of the final anti-dumping duty is legal and valid' As Rule 13 of the said rules would be relevant for the discussion on the said decision, it is reproduced below: "13. Levy of provisional duty - The Central Government may, on the basis of the preliminary findings recorded by the designated authority, impose a provisional duty not exceeding the margin of dumping: Provided that no such duty shall be imposed before the expiry of sixty days from the date of the public notice issued by the designated authority regarding its decision to initiate investigations: Provided further that such duty shall remain in force only for a period not exceeding six months which may upon request of the exporters representing a significant percentage of the trade involved be extended by the Central Government to nine months." Paragraph 31 of the said decision was heavily relied upon....
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....iew. 25. The decision in G.M. Exports (supra), after examining Article VI of GATT, the said Agreement, Article 51(c) of the Constitution and several earlier decisions of the Supreme Court set out the following conclusions: "23.A conspectus of the aforesaid authorities would lead to the following conclusions: (1) Article 51(c) of the Constitution of India is a Directive Principle of State Policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail. (2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the said treaty, it is a legitimate aid to the construction of the provisions of such statute that are vague or ambiguous to have recou....