TaxTMI 
TaxTMI 
2016 (1) TMI 287
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....P. 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 not exceeding 12 months from the date of initiatio....
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....s 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 by a further 6 months, applying the said proviso mut....
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....daptation 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 petitioners which was founded on Article 11 of the said Agreement, the respondents contend....
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....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 that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. The duty may remain in force pending th....
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....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 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 design....
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.... 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 the expression mutatis mutandis. In Ashok Service Centre(supra), the Supreme Court observed as under: "17. Section 3(2) of the Act which makes the provisions of the principal Act mutatis mutandis applicable to the levy of additional tax is a part of the charging provision of the Act and it does not say that....
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....hed 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 limit of 12 months could not be whittled away. This appears to be a formidable argument but, as pointed out in the above decision, 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 ....
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....tegory, 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 of Chapter III-A) in any area after the date specified in sub-section (1) of Section 49-A, every tenant holding land under such tenancy and cultivating it personally shall be entitled to purchase within one year from the commencement or as the case may be, the restoration of the tenancy so much of such land as he may be entitled to purchase under Section 41 and the provisions of Section 41 to 44 (both inclusive) shall mutatis ....
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....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. No exception is carved out in favour of a landlord who is a minor, a widow or a disabled person. Finally, Section 49-A was added which inter alia provides that notwithstanding anything contained in Section 41 or 46 ownership of land held by a tenant being land which is not transferred to the tenant under Section 46 or which is not purchased by him under Sections 41 or 50 shall stand transferred to and vest in such tenant and from that date he ....
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....mmediately 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 17) "17. ... Earl Jowitt'sThe Dictionary of English Law (1959) defines 'mutatis mutandis' as 'with the necessary changes in points of detail'. Black's Law Dictionary (Revised 4th Edn. 1968) defines 'mutatis mutandis' as: 'With the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like.' ... Extension of an earlier Act 'mutatis mutandis' to a later....
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....asis 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 by the learned counsel for the petitioners. It reads as follows: "31. Rule 13, in line with clause 7.4 of the WTO Agreement, enables the Central Government to impose provisional anti-dumping duty not exceeding the margin of dumping, with two provisos. First, no such duty can be imposed before the expiry of 60 days from the date of public notice issued by the designated authority regarding its decision to initiate investigations. And second, such duty cannot remain in force for a period of more than six months, which is only extendable on request ....
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.... 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 recourse to the terms of the treaty to resolve such ambiguity in favour of a meaning that is consistent with the provisions of the treaty. (3) In a situation where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them. (4) I....