TaxTMI 
TaxTMI 
2018 (6) TMI 265
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....ended that continuation of Anti-Dumping Duty for a further period of five years would be necessary. As of 05.05.2013 there was no levy of Anti-Dumping Duty in force dated 05/07/2013. After a gap of 60 days from the date of expiry of the levy, the Central Government by Customs Notification No. 17/2013 retrospectively revived the Anti-Dumping Duty with effect from 05.05.2013 and extended it till 04.05.2014. The Sunset Review concluded with the declaration of the Final Findings on 29.04.2014. According to the petitioners, since the Final Findings were published in the Official Gazette only on 28.07.2014, the latter date would be reckoned as its notified date. The Anti-Dumping Duty levied during the Sunset Review period ended on 04.05.2014. By Customs Notification no. 35/2014 dated 24.07.2014, the Government of India re-imposed the Anti-Dumping Duty for another term of five years. There was a gap of 80 days or a levy-free period between the expiry of Anti-Dumping Duty which was applicable during the Sunset Review period, and a fresh levy as a result of Final Findings. The petitioner has challenged: i) the extension of Anti-Dumping Duty for the one year pending the Sunset Review, as wel....
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....xpiry 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... ....". 4. Section 23 of the Rules reads as under: " 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....." 5. What is to be seen from the above is that a Sunset Review has to be concluded within one year from the date of its initiation. Under second proviso of section 9A(5) of the Act, the levy of Anti-Dumping Duty can be allowed to continue to remain in....
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.... the levy of anti-dumping duty ended on 01- 01-2014, with the lapse of the original notification. The second proviso to Section 9A (5) precluded the Central Government from continuing the levy beyond that period or date, except to the extent its conditions were fulfilled, i.e. if the levy of the duty were to have been notified before such date. In such cases, the power under the second proviso to Section 9A(5), after expiry of the date of the original notification, is unavailable. The notification in the present case states that: "3. Notwithstanding anything contained in paragraph 2, this notification shall remain in force upto and inclusive of the 1st day of January, 2015, with respect to anti-dumping duty on Acrylonitrile Butadiene Rubber originating in, or exported from Korea RP, unless revoked earlier". Neither does Section 9A (1) nor Section 9A (5) permit the extension of anti-dumping duty once the main period of five years lapses, as held earlier. The Central Government is not arguing that it had the benefit of Section 21 of the General Clauses Act- for the simple reason that extension or amendment of an earlier notification can be only after following the p....
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....(Del); (iii) Tarsem Kumar vs Collector of Central Excise, Chandigarh AIR 1972 P&H 444; (iv) Vazir Glass Works vs. Maharashtra General Kamgar Union & Ors. AIR 1996 SC 1282; and (v) Ambalikarthikeyan vs Collector of Customs & Central Excise 2000 (125) ELT 50, which held: ".... No question of extension of time can arise after the time has expired. When the time expires, the person from whose possession the goods were seized, gets the right for the return of the goods. The extension can only be before that right accrues..." 9. In view of the aforesaid, it is argued that the Customs Notification No. 17/2013 should be treated as non-est, in the face of the record, and should be set aside because it sought to extend a duty which did not exist in the first place and otherwise sought to revive one, which is not permissible under section 9A(5) of the Act. The petitioners relied upon the judgment in Nazir Ahmed vs King Emperor AIR 1936 PC 253, where the Privy Council held that: "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all". It is argued that once the levy of duty under Notification no. 1....
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....w initiation. 11. The Petitioners contend that before a decision to extend the Anti- Dumping Duty, the Government of India is required to undertake an elaborate investigation and at least come to a prima facie view on the basis of information furnished in the Sunset Review application that such extension is a matter of course but it is not a matter of right for the Domestic Industry, to be extended such protection. Rule 23(1B) requires the Designated Authority to consider the petition received for review and extension of Anti-Dumping Duty within a reasonable period of time prior to the expiry of that period. It is argued that such a reasonable period is for consideration of the application and process the same for the Sunset Review. The period has been prescribed through Trade Notice No. 2/2011 dated 06.06.2011 which stipulates that the Sunset Review should be filed 90 days prior to the date of expiry of the Anti- Dumping Duty. It is argued that the Domestic Industry had sought initiation of Sunset Review in January 2013 with POI of October, 2011 to September, 2012. Subsequently, on 09.04.2013 the applicant had filed a revised application with POI as January, 2012 to December, 2....
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....t must be exercised judiciously and must be based on cogent reasons. 14. If the strict timelines specified in the Statute or in the respondents' Trade Notice is to be tinkered with or is stretchable, then the sympathetic, accommodative and lenient view would also be accepted by all parties including the exporters. Leniency and sympathy of this nature would lend to chaos and the mockery of the requirement to adhere to the timelines, which is an overriding feature of the Anti-Dumping Duty regime. The Sunset Review is not simply an application by the Domestic Industry seeking continuance of the levy for a further period of five years. It is a petition to be supported by corroborative data showing the dynamics of trade of the product concerned vis-à-vis, local production, imports of goods, demand, supply, size of the industry, its projected growth, profitability, injury etc, to prove that the continuance of the Anti-Dumping Duty would be necessary. Such application, complete in all respects is to be filed at least 90 days before the expiry of the levy. The 90 days are meant basically for the Designated Authority to assess the data, to conclude and form a prima facie view as t....
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....d of levy and keep revising its petition till it is sure that the petition meets the approval of the Designated Authority. The data first filed should be with confidence and change of this substratum, if any, should be filed only within the time specified in the Trade Notice. Hence, for this reason itself, it ought to have been rejected and there could be no initiation of the Sunset Review. 16. The questions that arise for determination are: (i) whether with the initiation of Sunset Review before expiry of the five year levy, there is an automatic extension of Anti-Dumping Duty for the Sunset Review period; (ii) would a separate notification be required extending the levy of Anti-Dumping Duty before expiry of the original five year period, and iii) would a notification of levy of anti-dumping duty for another five years after the expiry of the Sunset-Review Period be valid? 17. Trade Notice 2/2011 issued by the respondents reads as under: "..... Trade Notice No.2/2011 1. Attention of the Trade and Industry is invited to Section 9A of the Customs Tariff Act, 1975 as amended and to Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Ant....
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....year after the first five years as required under the duty regime. It requires the Domestic Industry to file the Sunset Review petition before the expiry of the period for which the Anti-Dumping Duty is in existence. No such application is to be entertained by the Designated Authority if it is filed in less than 90 days of expiry of the levy. The Designated Authority enjoins upon itself the timelines for examining the petition to check its deficiencies and errors, and also accord reasonable time within which time the errors can be cured. Upon receipt of the application, it is to be examined in 15 days and deficiencies, if any, are to be removed in five working days from date of such communication to the applicant. If, the petition is found in order, the Sunset Review initiation or its rejection is to be communicated within 45 days. It is only in cases of administrative exigencies, and not because of compulsions of the petitioners or any other party, that the timelines can be stretched. In the present case, the application was effectively filed on 09.04.2013 about 28 days before expiry of the Anti-Dumping Duty. The same could not have been entertained. It is not as if the Sunset Rev....
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....exceeding one year, pending the outcome of such a review. The question, however, is as to whether this extension to fill the void 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. 31) After giving due consideration to the arguments advanced by the learned counsel for the parties, we are inclined to agree with the High Court that proviso to sub-section (5) of Section 9A of the Act is an enabling provision. That is very clear from the language of the said provision itself. Sub-section (5) of Section 9A gives maximum life of five years to the imposition of anti-dumping duty by issuing a particular notification. Of course, this can be extended by issuing fresh notification. H....
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....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 anti-dumping duty. At the same time, it cannot be said that without any overt act on the part of the Central Government, there is an automatic continuation. The learned counsel for respondent rightfully pointed out that the legislature has consciously used the expression 'may' and 'shall' at different places in the same Section, i.e. Section 9A of the Act. In such a scenario, it has to be presumed that different expressions were consciously chosen by the Legislature to be used, and it clearly understood the implications thereof, therefore, when the word 'may' is used in the same Section in contradistinction to the word 'shall' at other places in that very Section, it is difficult to interpret the word 'may' as 'shall'. Therefore, it is difficult to read the word 'may' as 'shall'. Our conclusion gets strengthened when we keep in mind following addit....
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....mping duty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending a non- existing Notification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed......" 20. Applying the said principle to the facts of the present case, it is seen that the Notification no. 17/2013 issued 60 days after the expiry of the levy of Anti-Dumping Duty under the first five year period, would be non-est because it sought to extend a levy which had lapsed on 04.05.2013. The second proviso to section 9A(5) of the Act is an enabling provision granting the Central Government the authority to continue Anti-Dumping Duty pending the outcome of the Sunset Review for a ....
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....e a level playing field to the Domestic Industry from the injurious effects of dumped goods upon the Domestic Industry. Such protection is to be continued till such time that the Government deems it necessary (by assessing data every five years or in a Mid-Term Review) for enabling the Domestic Industry to compete against unfair international trade practices. The moment the protection comes to an end or is allowed to lapse, the hitherto protected Domestic Industry is exposed to the dynamic forces and full impact of unrestrained international trade. The nature and extent of the injury from dumped goods to the Domestic Industry, would be different and indeed to a greater degree in an unprotected regime vis-à-vis a regime of Anti-Dumping Duty levy. Such levy is imposed to the extent that it offsets the injury. The assessment in a Sunset Review of a market condition is under a protected regime. The moment the protection ends and free trade is permissible, the impact of free trade and the injury to the Domestic Industry would be of a different degree. There was cessation of levy for 60 days from 05.05.2013 and for 80 days from 05.05.2014. The Domestic Industry would subsequently ....