TaxTMI 
TaxTMI 
2017 (10) TMI 830
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....ON ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) Draft amendment in Special Civil Application No.14204 of 2017 is allowed. The same shall be carried out forthwith. 2 Heard Shri Saurabh Soparkar, learned Senior Advocate, Shri Mihir Joshi, learned Senior Advocate, assisted by Mr Gaurav Mathur, learned advocate for the petitioners and Mr S.V. Raju, learned Senior Advocate, assisted by Mr Vishal Sevak, learned advocate for the respondent no.6 and Shri Balbir Singh, learned Senior Advocate, assisted by Mr Devnath Somnath Shukla, Mr Hardik Modh, for respondent no.7. 3 The challenge in this group of petitions is to order dated 22nd July 2017 whereunder responder no.2 - Designated Authority has given its final finding on Mid Term Review (MTR) recommending withdrawal of the Anti Dumping Duty against the product called 'Soda Ash' and the second order of even date on Sunset Review is annulled/rescinded with immediate effect, as a result whereof the petitioners have been compelled to approach this Court for seeking appropriate reliefs. The reliefs which are prayed for in Special Civil Application No.14204 of 2017 could be considered to be a common reliefs to the e....
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....review of the duty decision. Section 9A of the Customs Tariff Act, 1975 reads as under: "Section 9A. Anti-dumping duty on dumped articles - (1) Where any article is exported by an exporter or producer from any country or territory (hereafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation.-For the purposes of this section,- (a) "margin of dumping" in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold t....
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.... [2] The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined,- (a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and (b) refund shall be made of so much of the antidumping duty which has been collected as is in excess of the anti-dumping duty as so reduced. [2A] Notwithstanding anything contained in subsection (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under subsection (2), shall not apply to articles imported by a hundred per cent, export-oriented undertaking unless,- [i] Specifically made applicable in such notification or such impositions, as the case may be; or [ii] the article imported is either cleared as such into the....
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....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) The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified and for the manner in which the export price and the normal value of and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such antidumping duty. (6A) The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under sub-section (6)shall be determined on the basis of records concerning normal value and export price maintained, and information provided, by such exporter or....
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....ed in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year, [(b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry after considering the principles laid down in the Annexure III to these rules.] (2) The final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information regarding - (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the product which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination. (3) The designated authorit....
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.... : Provided that the Central Government shall disregard for the purpose of this sub-rule any zero margin, margins which are less than 2 per cent expressed as the percentage of export price and margins established in the circumstances detailed in sub-rule (8) of rule 6. The Central Government shall apply individual duties to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation as referred to in the second proviso to sub-rule (3) of rule 17. (3) Notwithstanding anything contained in sub-rule (1), where a domestic industry has been interpreted according to the proviso to sub-clause (b) of rule 2, a duty shall be levied only after the exporters have been given opportunity to cease exporting at dumped prices to the area concerned or otherwise give an undertaking pursuant to rule 15 and such undertaking has not been promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question. (4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the....
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...., 10, 11, 16, 17, 18, 19, and 20 shall be mutatis mutandis applicable in the case of review." 7 The interested and affected parties moved the competent authorities for seeking Mid Term Review as envisaged under the provisions of Rule 23, which was initiated as per the provisions contained under Notification dated 21.07.2015. As stated hereinabove, the total period available to the competent authority to complete this procedure being 12 months, the time was required to be extended, which came to be extended and whereunder the authorities got the time to complete these proceedings latest by September 2016. The said exercise culminated into issuance of disclosure statement dated 14.09.2016, which came to be challenged by the petitioners and other affected industries by way of writ petition being Special Civil Application No.16426 of 2016 and other allied matters being Special Civil Applications Nos.16427 to 16429 of 2016 in which the Court initially granted interim relief under order dated 13th December 2016 in which the authorities were permitted even pass appropriate orders and issue notification, but the same was to be kept in abeyance in light of the fat that those petitions we....
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....ng the likelihood of continuation of dumping and recurrence of injury, the Authority hereby initiates an investigation in accordance with Section 9A(5) of the Act read with Rule 23 of Anti-dumping Rules, to review whether cessation of the duty on imports of the subject goods originating in or exported from the subject countries, shall lead to continuation or recurrence of dumping of the subject goods from the subject countries and continuation or recurrence of injury to the domestic industry, and need for continued imposition of the definitive duty in force against the subject goods originating in or exported from the subject countries." 10 Thus, at this stage it deserves to be noted that there is a rival contention on account of the observations of paragraph D as well as in para 7 by both the sides that the said notification of initiation of Sunset Review was after recording a satisfaction which would render the Mid Term Review or OTS infructuous whereas the counsel for the respondent relying upon para 17 contended that the same was specifically made subject to the result of the MTR which was in fact an undertaking and which could not be completed on account of pendency of the ....
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....ch as the time limit prescribed by the statute and the pendency of the litigation and the time consumed during the pendency of Special Civil Application Nos.16426 of 2016 to 16429 of 2016 could indicate that the respondents could have completed the entire procedure within the stipulated time. The respondents did not have any authority or competence in embarking upon the Mid Term Review and continuing the same without the said time limit has expired without there being any specific extension of the same. At this stage, it was pointed out that extension application being MCA No.2027 of 2017 has been filed only on 21.07.20176 and without waiting for outcome on that application in terms of condoning of the lapse of time the authority chose to proceed with fastening of final orders dated 22.7.2017. 15 Learned counsel for the petitioners have also placed on record, with the copy to the other side the elaborate table of comparison indicating that the finding in disclosure statement and the final finding clearly indicate the deliberate non advertance to greater aspects and important factors have been overlooked for the reasons best known to the authorities. The counsel invited the court....
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.... to the elaborate findings recorded to justify that the petitioners and other similarly situated parties are out to perpetuate their profiteering only as could be seen from the findings recorded and the users are likely to affect on account of continuance of anti dumping duty. As on date when the Mid Term Review is accepted and the final findings are recorded the Sunset Review lapses and the Government of India will be having no other option but to accept the same and pass formal order in the form of notification withdrawing the anti dumping duty. 19 Learned counsel heavily relied upon the alternative remedy available in terms of the appeal and submitted that the fine facts which have been sought to be canvassed on either side may not be gone into by this Court under Article 226 of the Constitution of India and when there is availability of alternative remedy this Court may not entertain these petitions and let the petitioners be relegated to the authorities. 20 Learned counsel for respondent no.4 specifically canvassed a submission that these petitions are premature as there is an order yet to be made, may be a formal order, but the order has to be made by the Government of ....