TaxTMI 
TaxTMI 
2007 (11) TMI 204
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....a decision thereon. The facts: 3. The broad facts of the case, as have been pointed out to us during the course of hearing on 24th and 25th September, 2007 are that the Petitioner and others jointly petitioned the Designated Authority (Respondent No.1), appointed under Rule 3 of the Rules, alleging that ferro alloys originating in or exported, inter alia, from China and Russia are being dumped in India. It was requested that the Designated Authority may initiate investigations into the allegations and thereafter impose anti-dumping duties under the Act. 4. As a result of the joint petition, the Designated Authority, acting under Rule 5 of the Rules, decided to initiate anti-dumping investigations concerning the import of ferro silicon originating in or exported from Russia and China. Consequently, an Initiation Notification dated 5th June, 2000 was issued to determine the existence, degree and effect of the alleged dumping of the subject goods originating in or exported into India from the subject countries. 5. After conducting its investigations, the Designated Authority notified its Preliminary Findings under Rule 12 of the Rules on 16th November, 2000. The findings are to th....
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....s sufficient justification for it. 10. The Petitioner made a request to the Central Government on 18th July, 2005 for a sunset review. The Petitioner also gave its reasons for the request. The prima facie delay on the part of the Petitioners appears to have been condoned by the Central Government since no issue was joined in this regard before us nor was such an issue raised by the Central Government. On the contrary, the Central Government, by a letter dated 17th November, 2005 requested the Petitioner to supply some details, evidence and information in support of its case. 11. By a letter dated 13th December, 2005 the Petitioner gave to the Designated Authority all the further necessary information that it had. The relevant material appears to have been considered by the Designated Authority who then passed an order on 21st December, 2005 declining to initiate a sunset review of the anti-dumping duty. What was actually said is: ?Your application has been carefully examined by the Authority and after examining the information submitted by you, it has been considered appropriate not to review the anti-dumping duty imposed on Ferro Silicon originating in or exported from Russia an....
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...., 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 continue to remain in force pending the outcome of such a review for a further period not exceeding one year. (6) to (8) xxx xxx xxx 23. Review. - (1) The designated authority shall, from time to time, review the need for the continued imposition of the anti-dumping duty and shall, if it is satisfied on the basis of information received by it that there is no justification for the continued imposition of such duty recommend to the Central Government for its withdrawal. (2) Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review. (3) The provisions of rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, and 20 shall be mutatis mutandis applicable in the case of review." 17. Rule 5 (which is not applicable to a review) deals with the initiation of....
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....e period of anti-dumping duty for another period of five years. This is subject to the provisions of sub-rule (1) of Rule 23 of the Anti-Dumping Rules, under which the Designated Authority is empowered to review the anti-dumping duty imposed from time to time. Having regard to the scheme of the abovementioned provisions of the statute, once anti-dumping duty has been initially imposed, it would be ordinarily continued for five years unless on a review it is found by the Designated Authority that there has been such a significant change in the facts and circumstances, that it is considered necessary either to withdraw or modify appropriately the anti-dumping duty which has been imposed. It is, therefore, clear that unless the Designated Authority suo motu or the applicant for review is in a position to establish clearly that there has been a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the finding given by the Designated Authority at the time of initial imposition of anti-dumping duty must be considered to continue to hold the field" 21. Learned counsel for the Petitioner drew our attention t....
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....however, extend the period of five years if (in a review) it is of the opinion that "the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury "Two important pre-requisites are postulated by the first proviso, namely ,A review being conducted, and Thereafter the formation of an opinion (by the Central Government) on the basis of that review that the cessation of anti-dumping duty would lead to "continuation or recurrence of dumping and injury" 24. Who is to conduct the review? It could be argued, though that does not arise for consideration, that the Central Government may itself conduct the review suo motu. It could also be argued that in view of Rule 4(1)(e) and Rule 23 of the Rules, the review is to be conducted by the Designated Authority, which can make a recommendation to the Central Government for the withdrawal of anti-dumping duty if there is no justification for its continued imposition. As would be seen a little later, both contentions are valid. 25. What is really the need for conducting a review? There are three reasons: the first is given by the Supreme Court, the second by the first proviso to Section 9A (5) of the Act and th....
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....his is coupled with injury to the domestic industry, then the anti-dumping duty should continue. It is for this reason that a proper assessment, through a review, is necessary to determine whether anti-dumping duty should continue or not. 29. In so far as international obligations are concerned, Article VI Clause 1 of the General Agreement on Tariffs and Trade, 1947 (GATT) recognizes that dumping, "by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry.? Clause 2 of the same Article provides: "In order to offset or prevent dumping, a contracting party may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product." Significantly, Article VI of GATT does not provide for any period for the levy or imposition of anti-dumping duty. However, the subsequent Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 1994 (the Impl....
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....mine on a suo motu review or on the basis of a duly substantiated request of the domestic industry that the expiry of the duty 'would be likely to lead to continuation or recurrence of dumping and injury.' In other words, a review is necessary, by the authorities suo motu or on a request made to the appropriate authorities to determine whether the anti-dumping duty should continue or not and whether withdrawal of the duty would result in recurrence of dumping. 32. Therefore, our conclusion on the first part of the issue before us is that there is a well-recognized and accepted concept of a sunset review; that there is a statutory requirement of a sunset review recognized both by the Act and the Rules; the sunset review may be conducted by the concerned authorities suo motu or an application made by the domestic industry. Is a sunset review mandatory: 33. The final issue is whether the law mandates a sunset review, if a request is so made by an aggrieved domestic industry. Given the view expressed by the Supreme Court in Reliance Industries, it is difficult to answer the question in the negative. In this regard, it is also necessary to ask the question: is it possible for t....
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...., no doubt, far more elaborate, but that rejects on merits the 'initiation of review' and even that does not seem to have been passed in conformity with the procedures laid down in Rule 23(3) read in conjunction with the other Rules. In other words, a two stage procedure seems to have been introduced by the Respondents 'first, taking a decision whether a sunset review should at all be initiated and Secondly, if such review is decided to be undertaken then deciding on merits if ,the anti-dumping duty requires to be continued. The contention is that the request for a sunset review in the instant case has been rejected by the Designated Authority at the first stage itself. Therefore, the question of following the procedure mentioned above for taking a decision on merits did not arise and, in any event there is nothing according to the learned Additional Solicitor General that necessitates following the procedure laid down in Rule 23 of the Rule. 36. The contention of the learned Additional Solicitor General really begs the question, how does anyone judge whether the application should be entertained or is "duly substantiated." It is only to arrive at a decision on this that an elabor....
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....eafter forming its subjective opinion as to whether a possible injury may becaused or threat of injury in case of discontinuation of anti dumping duty' In the counter affidavit filed by the Respondents, it has been stated that the opinion of the Law Ministry is "still under examination." 39. In this context, we may add only two more reasons that suggest that a sunset review is mandatory. Firstly, the Trade Notice dated 5th January, 2004 lays down a time frame within which a request should be made for continuing with the anti-dumping duty. Secondly, even Article 11.3 of the Implementation Agreement mentions that a suo motu initiative or a duly substantiated request should be made within a reasonable period of time prior to the termination of the period of five years for which the definitive anti-dumping duty is imposed. More significantly, this Article also says that, "The duty shall remain in force pending the outcome of such a review.? The cumulative effect of this is that a sunset review is required to be conducted within a limited time frame and if it is not concluded by then, the anti-dumping duty levied shall remain in force for a period of one year more in terms of the sec....