TaxTMI 
TaxTMI 
2017 (11) TMI 665
X X X X Extracts X X X X
X X X X Extracts X X X X
....ranging from 4 mm to 12 mm (both inclusive) produced and exported by M/s.Tariq Glass Industries Limited, Pakistan, the third respondent. 3.W.P.No.14346 of 2017, has been filed by the petitioner, challenging the initiation notification issued by the second respondent dated 23.09.2015, by which the second respondent initiated a New Shipper Review of anti-dumping duties imposed on imports of clear float glass originating in or exported from Pakistan, Saudi Arabia and UAE as requested by the third respondent, M/s.Tariq Glass Industries Limited, under Rule 22 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 ADD Rules ). 4.W.P.No.17696 of 2017, has been filed by the petitioner, challenging the notification issued by the Government of India, the first respondent, notification dated 16.06.2017, issued by the first respondent imposing anti-dumping duty after considering the final findings of the second respondent at the rate of 23.54 USD per MT. This notification was kept in abeyance subject to the final outcome of the writ petition in W.P.No.12950 of 2017. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or nine months from 01.07.2015 to 31.03.2016. Pending the New Shippers Review, the Designated Authority recommended provisional assessment on all exports of the subject goods made by the third respondent, till the review is completed in accordance with Rule 22 of the ADD Rules. 8. Having regard to the Customs Notification, dated 11.12.2014, the Designated Authority issued public notice, dated 23.09.2015, initiating the New Shippers Review Anti-Dumping Investigation and copy of the Notification along with the copy of the exporters questionnaire were forwarded to the third respondent/applicant with an opportunity to make their views known in writing. Copy of the notification was also forwarded to the Pakistan High Commission in New Delhi, and a copy was forwarded to the non-domestic producers in India, including the petitioner and gave them opportunity to submit their views in writing. The response in the form of exporters questionaire was filed by the third respondent. Various interested parties during the course of investigation also placed evidence before the Designated Authority. 9. The Designated Authority heard the parties in person on 17.08.2016 and 02.11.2016 in accorda....
X X X X Extracts X X X X
X X X X Extracts X X X X
....read into Rule 22 and by way of such interpretation Rule 23(3) read with Rule 17, is applicable to Rule 22 and the period to conclude the impugned investigation expired, after expiry of 12 months. Further, it is submitted that the Municipal Law namely, the Tariff Act And Rules made thereunder cannot be read contrary to treat the obligation specified under WTO Agreement on Anti-Dumping, wherein Article 9.5, it has been mandated that the member authorities shall promptly carry out a review and the word 'promptly' cannot be interpreted in a manner to read a larger period than 12 months (extendable by 6 months). This objection was raised before the Designated Authority, which has not been considered while rendering the final findings. It is further submitted that the third respondent did not at the time of filing the New Shipper Review disclose its relationship with the Chinese Company and objections raised by the petitioner before the Designated Authority has not been duly considered while initiating or proceeding with the investigation. In support of his contention, the learned counsel placed reliance on the decision of the Delhi High Court in the case of Kalyani Steel v. UOI....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is contention, the learned counsel referred to the decision of the Delhi High Court in H&R Johnson (India) Limted vs. Union of India and another in MANU/DE/0076/2008. With regard to maintainability of the Writ Petitions, the learned counsel referred to the decision in Spacewood Furnishers Pvt. Ltd., v. Designated Authority reported in (2010) 252 ELT 321 and in NITCO Tiles Ltd., v. Gujarat Ceramic Floor Tiles Mfg. Assn. & others reported in (2005) 12 SCC 454 and in Designated Authority & others v. Sandisk International Limited & others reported in (2017) SCC online (SC) 319. 15. The learned counsel for the petitioner in reply referred to the objections filed before the Designated Authority, more particularly, paragraphs 10, 11 & 12. Further, it is submitted that the decision by the Delhi High Court in H&R Johnson (supra) is an interim order and the third respondent cannot place reliance. 16. Heard the learned counsels appearing for the parties and perused the materials placed on record. 17. The following questions arises for consideration in these writ petitions. i) whether the New Shipper Review Investigation commenced by the Designated Authority vide initiation n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry 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 authority shall determine an individual margin of dumping for each known exporter or producer concerned of the aricle under investigation: Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such detemination inpracticable, it may limit its findin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed authority shall review the need for the continued imposition of the 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 designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on a behalf of the domestic industry, within a reasonable period of time prior to the expiry of that period, that the expiry of the said anti-dumping duty is likely ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d under Sub-Rule (1) that is both under Sub-Rule 1A and 1B shall be concluded within a period of not exceeding 12 months from the date of initiation of such review. Sub-Rule (3) of Rule 23 states that 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. 22. The petitioner s contention is that final findings are to be rendered in terms of Rule 17, which shall be within one year from the date of initiation of investigation, determining as to whether or not, the article under investigation is to be dumped into India and submit to Central Government. In terms of the first proviso, the Central Government in its discretion in special circumstances extend further period of one year by 6 months. Thus, the final findings have to be rendered by the Designated Authority not later than 12/18 months from the date of initiation of investigation. 23. It is the argument of the learned counsel for the petitioner that Rule 23 speaks of review and Sub-Rule (3) of Rule 23 states that Rule 17 will apply in case of review. Thus, the exercise undertaken by the Designated Authority in the instant case had to be necessarily conc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....initiative or upon a duly substantiated request made by or on behalf of the domestic industry. This contingency does not arise in the present case. Therefore, Rule 23 (1B) does not apply. The review under Sub-Rule (1) of Rule 23 shall be concluded within a period of 12 months from the date of initiation. Thus, both in the cases of mid-term review and sunset review, (as popularly known in the industry), the time limit is 12 months. While undertaking such review, the other Rules enumerated in Sub-Rule (3) of Rule 23 would apply. Thus, Rule 22 and Rule 23 operate in different spheres and well defined compartments and the plea that subject Rule 23(3) read with Rule 17 should be superimposed in Rule 22 to fix a time limit amounts to re-writing the Rule, which is impermissible. Thus, the Court is fully convinced that the interpretation sought to be given by the petitioner lacks merit. 25. One more aspect to be noted is that the period of investigation for the new shipper review was from 01.07.2015 to 31.03.2016, for which notification was issued on 23.09.2015. Therefore, all steps, which are required to be taken, pursuant to the initiation can take place only after 01.04.2016. Therefo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s against the judgment and order of the Delhi High Court interferring with the final findings of the Designated Authority. On going through the facts of the case, the Hon'ble Supreme Court observed that the High Court was not justified in exercising its writ jurisdiction and in setting aside the final findings of the Designated Authority and the High Court should have asked the writ petitioner to await the issuance of final notification under Rule 18 and to challenge the same before the appropriate forum under Section 9C of the Customs Tariff Act. 28. The arguments based on the replies to the questions posed by Korea concerning the notification provided by Government of India before the World Trade Organisation does not in any manner advance the case of the petitioner, as the reply given by India before the WTO is that the term periodical reviews (as appearing in Rule 22) implies accelarated review. Thus, it is clear that there are no time lines prescribed for a review undertaken under Rule 22 and going by the dates and events, it is seen that the initiation notification is dated 23.09.2015, period of investigation is from 01.07.2015 to 31.03.2016. After the investigation wa....