2020 (2) TMI 1431
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....ended imposition of anti-dumping duty on the import of "Nonyl Phenol" [Subject goods] originating in or imported from Chinese Taipei and the Central Government issued a notification dated 22 August, 2007 imposing anti-dumping duty. Before the expiry of five years, the domestic industry made a request for a sunset review, which was initiated by the Designated Authority on 9 August, 2012, whereafter it recommended imposition of anti-dumping duty and the Central Government issued a notification on 16 January, 2014 for continuation of the anti-dumping duty. The domestic industry filed another application on 19 April, 2018 for a second sunset review. The second sunset review was initiated on 12 June, 2018 and ultimately the Designated Authority by order dated 11 January, 2019 concluded that continuation of anti-dumping duty was not warranted and, therefore, did not recommend any extension of anti-dumping duty on the imports of subject goods. The final findings were published in Gazette of India on 11 January, 2019. It is these final findings that were assailed in the Appeal that was decided by the Tribunal on 28 November, 2019 and a direction was issued to the Designated Authority for c....
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.... of the period for which they were levied and not afterwards. 5. In regard to the extension of anti-dumping duty by one year, after a gap of 60 days, the Delhi High Court observed that :- "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 4-5-2013. 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 further period not exceeding one year. The essential requirements for such continuation are : (i) the sunset review ought to have been initiated before the expiry of the five year period of levy anti-dumping duty; (ii) the inquiry has not concluded within the said period; (iii) a prima facie view is formed by the Government that continuance of the anti-dumping duty would be necessary, and (iv) such extended period would not exceed one year from the date on which the first five years expires. The phrase "ma....
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....g for the Applicant has pointed out that the period of five years for which the anti-dumping duty was imposed by notification dated 16 January, 2014 expired on 16 January, 2019 and, therefore, in view of the aforesaid decision of the Delhi High Court in Forech India, the Tribunal may clarify whether the Designated Authority, on remand by the Tribunal, can make any recommendation for continuation of imposition of anti-dumping duty. 9. Ms. Reena Khair, Learned Counsel appearing for the Appellant has contended that considering the powers conferred upon the Tribunal under sub-section (3) of Section 9C of the Tariff Act, which includes the power to pass such orders in Appeal as the Tribunal thinks fit, confirming, modifying or annulling the order appealed against, the Designated Authority, on remand by the Tribunal, can make a recommendation for imposing anti-dumping duty even after the period for which anti-dumping duty was imposed had expired on 16 January, 2019. In this connection, it has been pointed out that in case it is held that even after remand by the Tribunal, the notification has to be issued by the Central Government for continuation of anti-dumping duty on or before ....
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.... of such a review for a further period not exceeding one year. 13. Section 9C(1) provides for an appeal to the Tribunal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article. Sub-section (3) of Section 9C deals with the orders to be passed by the Tribunal and it is reproduced below :- "Section 9C(3) :- The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the order appealed against." 14. It would be seen from a perusal of the aforesaid provision of sub-section (3) of Section 9C of the Tariff Act that the Tribunal can pass such orders as it thinks fit, confirming, modifying or annulling the order appealed against. 15. In Union of India v. Umesh Dhaimode [1998 (98) E.L.T. 584 (S.C.)], an issue arose whether such orders would also include the power of remand. Section 128(2) of the Customs Act, 1962, as it then stood, also conferred on the Appellate Authority powers to pass such orders as it may deem fit, confirming, modifying or annulling th....
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....by a Court, then an order issued in pursuance of such a direction would not be subject to the limitation prescribed under Section 132(5) of the Income Tax Act as such an interpretation would make Section 132 of the Income Tax Act ridiculous and useless and the powers of the Court wholly ineffective. The relevant portion of the judgment of the Supreme Court is reproduced below :- "6. Even if the period of time fixed under Section 132(5) is held to be mandatory that was satisfied when the first order was made. Thereafter if any direction is given under Section 132(12) or by a court in writ proceedings, as in this case, we do not think an order made in pursuance of such a direction would be subject to the limitations prescribed under Section 132(5). Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income-tax Officer to pass a fresh order. We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed within ninety days. It would make the sub-section (11) and (12) of Section 132 ridiculous ....
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....ppeal and the appellate order directs a fresh order to be passed then there is no requirement of law that the consequential order to give effect to the appellate order must also be passed within the statutory period of limitation. The observations are as follows : "26. In the instant case, there is no question of any inactivity. The appellant had passed an order within 60 days, which was ultimately quashed by the High Court. The deeming clause under Section 13(3) comes into operation only when the Metropolitan Authority fails to pass an order within a period of 60 days from the receipt of the application. But if an order is passed and that order is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway. The appellate order will now hold the field and a fresh order will have to be passed in terms of the order of the Appellate Authority or the Court." 20. It would also be pertinent to refer to a decision of the Delhi High Court in Essar Steel Limited v. Union of India [2008 (222) E.L.T. 161 (Del.)]. The order dated 27 August, 2003 passed by the Designated Authority terminated the anti-dumping investigation. It w....
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....legal action brought by the domestic industry would be without any practical effect for that party, if it is accepted that the expiry of the time-limit to conclude the original investigation would not allow the implementation of a Court judgment. This, in the opinion of the European Commission, would be contrary to the principle that all parties should have the possibility of an effective judicial review. The relevant paragraphs of the decision of the European Commission are reproduced below : "(17) It is recalled that the CoJ has rejected all the substantive arguments of Foshan Shunde referring to the merits of the case. Thus, the Union institutions' obligation is focused on correcting the part of the administrative procedure where the irregularity occurred in the initial investigation. (18) The claim that the introduction of deadlines (i.e. 15 months and 18 months respectively) to conclude anti-dumping investigations prevents the Commission from following the approach underlying the IPS case was found unwarranted. It is considered that this deadline is not relevant for the implementation of a Court judgment. Indeed, such deadline only governs the completion of the o....
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....s of section 2643(c)(1), provided the directions to the Commission do not contravene the statute or improperly infringe on the decision-making authority of the agency. 20. The Commission also argued that the anti-dumping statute requires it to base its determination on Commerce's original determination. It relies on the language of 19 U.S.C. Sec. 1673d(b)(1) (1980) which provides that "the Commission shall make a final determination ... with respect to which the administering authority has made an affirmative determination under sub-section (a)(1) of this section." It interprets that section as limiting the right of the Commission to make a determination of injury based only on a Commerce determination made within the timetable of section 1673d(a) (1980). 21. We appreciate the Commission's desire to adhere to the time requirements of the statute. Nonetheless, we do not believe the trial court erred in considering that it had the authority to order a redetermination outside of that time frame. Congress clearly wanted prompt consideration of anti-dumping petitions and it set out a formula for the Commission and Commerce to accomplish that goal. The statute, however,....