AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 404
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the present petition, which is a challenge the decision of the Designated Authority ('DA') declining to initiate a Sun Set Review ('SSR'), is already being considered by this Court in W.P. (C) No. 146/2017 and batch. In that case, on 11th January 2017, by way of an interim direction, the Court had directed the Respondents to initiate SSR in both the Petitioner's cases in the course of the day as the period of the original Anti Dumping Duty (ADD) notification was expiring on that very day. The Court further stipulated that, the SSR notification shall clearly state that the proceedings would be subject to the final outcome of the writ petition. The said writ petitions are, in fact, being finally heard by this Court. They are listed for further hearing on 6th September 2017. 3. Considering that the date of expiry of the Anti Dumping Duty ('ADD') in the present case is 29th August 2017, the Court directs the Respondents to initiate the SSR in the Petitioner's case not later than 29th August, 2017. The SSR notification shall clearly state that the proceedings would be subject to the final outcome of the writ petition. This order is without prejudice to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able with the DA "about the stock in hand with the exporters in China PR." 6. Mr. Sandeep Sethi, learned Senior Counsel appearing for the Petitioner, submits that, under the second proviso to Section 9A (5) of the Customs Tariff Act, 1975 ('CTA'), where the SSR is initiated before the expiry of the period of five years of the ADD being in force and such SSR has not come to a conclusion before such expiry, the ADD shall be deemed "to remain in force pending the outcome of such a review for a further period not exceeding one year". He places considerable reliance on the decision of the Supreme Court in Union of India v. Kumho Petrochemicals Company Limited 2017 (351) ELT 65 (SC) (hereafter Kumho) to contend that where the SSR is initiated by the Central Government then "in all likelihood the Central Government would make use of second proviso and issue notification for continuing the said Anti Dumping Rules". 7. Mr. Sethi submits that the mere fact that the Petitioner is also an importer of the product would not come in the way of the Petitioner being considered as a 'domestic industry' within the meaning of Rule 2(b) of the Anti Dumping Rules. He refers to the fact that in the ear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e continued, the loss to the domestic industry would be such that cannot be compensated at all. 10. Mr. Sanjeev Narula, learned Standing Counsel for the Union of India, also refers to the observations of the Supreme Court in Kumho. Mr Narula points out that the decision in Kumho proceeded on the basis that there is no automatic continuation of the ADD only because an SSR is initiated. According to him, if the ADD is to automatically continue, then the word 'may' in the second proviso to Section 9A (5) of the CTA would be rendered meaningless. According to him, that is not the legislative intent and which is why the Supreme Court declined to read the word 'may' as 'shall' in para 32 of its decision in Kumho. 11. Mr. Narula also points out that it is only because of the interim order of this Court that the SSR has now been initiated but as far as the Central Government is concerned, unless there is a proper notification both for the purposes of initiating the SSR and for continuation of the ADD, there is no automatic continuation of the ADD only because the Central Government has decided that a SSR must be initiated. According to him, the factors that should weigh with the Central ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that may be created during the pendency of the sunset review is exercised is automatic, once the decision is taken to have sunset review of the anti-dumping duty or the continuation of such an anti-dumping duty has to be by a proper notification. As noted above, the High Court has held that second proviso is only an enabling provision and, therefore, power vested in the Central Government under the said proviso has to be specifically exercised, without which the anti-dumping duty cannot continue to remain in force with the lapse of original notification. 32. We are conscious of the fact that once sunset review is initiated, such initiation takes place only after a substantiated application/request is filed by the indigenous industry which is examined and a prima facie view is formed by the Central Government to the effect that such a review is necessitated as withdrawal of anti-dumping duty or cessation thereof may be prejudicial to the indigenous industry. Once such an opinion is formed and the sunset review is initiated, in all likelihood the Central Government would make use of second proviso and issue notification for continuing the said antidumping duty. At the same time, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iled statistics placed before the DA by the Petitioner some of which have been referred to earlier by the Court. In particular, the possibility of the undercutting of the price at which the product may be sold by the domestic industry has not been adverted to by the DA. Also, the present annual capacity of the entities in China PR which are unutilized and which far exceed the Indian demand of 2200 MT per year does not appear to have been discussed by the DA. 17. The other ground, viz., that Petitioner having itself imported the product, cannot be considered to be a domestic industry appears to be contrary to the DA's own conclusion in the earlier SSR which culminated in the Final Findings dated 4th April, 2006. 18. It appears to the Court that the factors that should weigh with the Central Government both for the initiation of the SSR and for continuation of ADD cannot be said to be unconnected. The Court is satisfied that a prima facie case does exist in favour of the Petitioner for continuation of the ADD. 19. Also of some significance is the question of balance of convenience. Mr. Sethi is right in his submission that the loss that the domestic industry might suffer on accoun....