2018 (4) TMI 1726

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....e, as per the provisions of section 9(A) of Customs Tariff Act, 1975 ("the Act" for short), the same shall not be continued after the period of five years which is getting over by 17/4/2018. The relevant provisions of the Act and the Rules called Customs Tariff (Identification, Assessment and Collection of Anti- Dumping Duty on Dumped Articles and for Determination of Injury Rules, 1995 ("the Rules" for short) provide for review at the end of the period, which is called Sunset Review either by the designated authority's own motion or on the strength of the substantiated application made by the domestic industry seeking continuation of protection in the form of Anti-Dumping Duty. 4.00. Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the respective petitioner invited attention of the Court to the application dated 29/1/2018 with greater emphasis upon page 339 - normal value in case of Russia, page 340 - export price, page 341 - dumping margin, page 342 - volume effect of dumped imports, page and price effect of dumped imports, page 343 - price suppression / depression, page 344, profitability, return on investment and cash profits, page 346 - conclusion on injury, p....

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....ub-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 behalf of the domestic industry, within a reasonable period of time prior to the expiry of that period, that expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry] (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 mutadis applicable in the case of review." 4.02. Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the respective petitioner emphasised upon "substantiated request made by or on 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 to lead to con....

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....s clear from its language, and has been reproduced above. However, when Notification dated 2-1-2009 itself had lapsed on the expiry of five years i.e. on 1-1-2014, and was not in existence on 23-1-2014 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 2-1-2009. The High Court, thus, rightly remarked that the Notification dated 2-1-2009 was in the nature of temporary legislation and could not be amended after it lapsed." Thus, the above observations leaves no room for doubt and makes it abundantly clear that the lapse of Notification of anti-dumping even while Sunset Review is not initiated but if the Notification for Anti-Dumping Duty and extension thereof is not issued, then, lapse of time would not permit any further extension and hence, the initiation of Sunset Review is to be simultaneous with an additional Notification for extending and continuing Anti-Dumping Duty has to be issued on or before 17/4/2018. 4.07. Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the respective petitioner, therefore, invited attention of the Court to similar situat....

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....he 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 day 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 the rights and contentions of the parties and will continue till further orders. 4. As regards the question of continuation of the ADD, Mr.Sandeep Sethi, the learned Senior Counsel for the petitioner, relies on the decision of the Supreme Court in Union of India V/s. Kumho Petrochemicals Company Limited - 2017(351) E.L.T. 65 (S.C.). Learned counsel for the respondents seeks time for instructions. 5. List on 29th August, 2017. 6. Order Dasti under the signature of the Court Master." 3. The present application was listed today to consider whether the ADD that was imposed by the Notification No.40/2012- Customs, dated 3....

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....n be refused the consequential relief of continuation of ADD in the circumstances that the petitioner points out. 16. On a perusal of the impugned order dated 22nd August,2017, the Court finds that the conclusions reached by the DA, which have been summarized hereinbefore, do not prima facie appear to have accounted for the detailed 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 produce 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 utilized 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 ....

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.... the prima facie view that let the advance copy of the present petitions be served upon the learned Standing Counsel for the Union of India at least so that some instructions may be obtained in respect of the prayers made in these petitions. Accordingly, hearing was postponed to 2:30 PM i.e. after Lunch and Mr. Parth Bhatt, learned Standing Counsel appeared on behalf of the Union of India and urged before the court that if the hearing is postponed for a further period of sometime today itself, he may try to receive instructions from the concerned authority. Accordingly, hearing was postponed. However, at the fag-end of the day, Mr.Bhatt, learned Standing Counsel reported that despite his attempts he could not receive any instructions from the concerned authority. 5.01. We have gone through the application dated 29/1/2018 and noted the contentions based thereupon and we have also perused the order impugned which prima facie satisfies us to observe that Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the respective petitioner is justified in submitting that the respondent No.2 prima facie appeared to have undertaken the basic task of assessing the material and has r....