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2021 (11) TMI 1161
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....ial) And Hon'ble Mr. P.V. Subba Rao, Member (Technical) For the Appellant : Shri S. Ganesh, Senior Counsel, Ms. Shiraz Patodia, Shri Ashish Singh, Ms. Juhi Chawla and Shri Mayank Singhal Advocates. For the Respondent No. 3 : Shri Ameet Singh and Shri Mohit Yadav, Advocates for the Designated Authority Shri Jitender Singh, Advocate. For Union of India : Shri Sunil Kumar and Shri Rakesh Kumar, Authorized Representatives ORDER JUSTICE DILIP GUPTA: Anti-Dumping Appeal No. 50864 of 2021 and Anti-Dumping Appeal No. 50865 of 2021 have been filed by Sadara Chemical Company and Dow Chemical International Pvt. Ltd. respectively to set aside the Customs (ADD) notification dated 05.04.2021 issued by the Ministry of Finance (Department of Revenue) as also the notification dated 01.09.2020 containing the final findings of the designated authority in connection with the anti-dumping investigation concerning imports of Flexible Slabstock Polyol [the subject goods] originating in and exported from the Kingdom of Saudi Arabia and United Arab Emirates [the subject countries] 2. The designated authority, in its final findings dated 01.09.2020, concluded that- (i) The product under consider....
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....) Rules, 1995 [1995, Anti-Dumping Rules] for imposition of antidumping duty. 7. The petitions were taken up together by the Bombay High Court on 13.10.2020 and the matter was adjourned, as the hearing could not be concluded. The High Court, however, directed that no decision shall be taken by the Central Government on the final findings dated 01.09.2020 issued by the designated authority. This interim order was continued from time to time and ultimately the writ petitions were finally heard by the High Court on 23.10.2020 and judgment was reserved. While reserving the judgment, the High Court ordered that the interim order earlier passed shall continue till the delivery of judgment. The judgment was delivered on 06.01.2021. The High Court took note of the provisions of rule 18 of the 1995, Anti-Dumping Rules and observed that a discretion vests with the Central Government to apply its mind and thereafter take a conscious decision on the final findings of the designated authority. The High Court also noticed that the grievance expressed by the petitioners centred around violation of the principles of natural justice and in this connection the High Court observed: "27. ******** Wh....
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....g a decision one way or the other on the recommendation made by the designated authority. The High Court also observed that the representations to be filed by the parties, including the one already filed by Indian Polyurethane Association on 28.09.2020, shall also have to be considered by the Central Government when it proceeds to take a decision on the recommendation made by the designated authority. 10. The main submissions of Shri S. Ganesh learned senior counsel appearing for the appellant, assisted by Ms. Shiraz Patodia are: (i) The mandatory provisions of rule 18 of the 1995, AntiDumping Rules have been violated as the notification dated 05.04.2021 was not issued by the Central Government within three months of the date of publication of the final findings by the designated authority on 01.09.2020. To support this contention, learned senior counsel placed reliance upon a decision of the Supreme Court in Association of Synthetic Fibre Industry vs. J.K. Industry Ltd. and Others [(2005) 11 SCC 482] and a decision of the Gujarat High Court in Nirma Limited vs. Union of India [2017 (346) ELT 328 (Guj.)] ; (ii) The period during which there was a stay order of the High Court i....
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....y view of the matter when the Tariff Act does not impose any limitation, the 1995, Anti-Dumping Rules could not have prescribed limitation under rule 18, as was observed by the Delhi High Court in Deepak Fertilizers and Petrochem vs. Designated Authority [2006 (203) E.L.T. 370 (Del.)]; (ii) If the interpretation to rule 18 of the 1995, Anti-Dumping Rules, as advanced by the appellant is accepted, the other provisions of the Tariff Act would be rendered redundant; (iii) In view of the specific directions issued by the High Court on 06.01.2021 that the Central Government shall take into consideration the representations submitted by the parties and thereafter take a decision on the final findings submitted by the designated authority, it was only after the last representation was submitted by the party on 19.02.2021 that the Government could proceed with the matter and, therefore, the notification was issued by the Central Government within the stipulated time; (iv) In any view of the matter, if what is contended by the appellant is accepted, the High Court could not have on 06.01.2021 issued a direction for issuance of a notification by the Central Government as the time limit....
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....oes not provide such a limitation; and (iii) In any view of the matter, anti-dumping proceedings being quashing judicial proceedings not only adjudicate a lis between Union of India and private parties but also between two private parties, namely the exporter and the domestic industry and so the proceedings are covered by the time extension granted by the Supreme Court from time to time. 14. The submissions advanced on behalf of the parties have been considered. 15. To appreciate the submissions advanced on behalf of the parties, it will be useful to examine the relevant provisions of the Tariff Act and the 1995, Anti-Dumping Rules. 16. Section 9A of the Tariff Act deals with anti-dumping duty on dumped articles. It provides that where any article is exported by an exporter or producer from any 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. Sub-section (6) of section 9A provides that the margin of dumping shall be determined by the Central Government....
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....the Annexure. 19. Annexure-II to the said Rules deals with the principles for determination of injury. It provides that the designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry, and causal link between dumped imports and such injury, shall inter alia, take the principles enumerated from clauses (i) to (vii) of Annexure II under consideration. 20. Annexure-III to the 1995, Anti-Dumping Rules deals with the principles for determination of non-injurious price. 21. Rule 18 deals with levy of duty and sub-rule (1) of rule 18, which is relevant for the purposes of this appeal, is reproduced below: "18. Levy of duty. -- (1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17." 22. Rule 20 provides that the anti-dumping duty shall take effect from the date of its publication in the Official G....
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....dumping of the product. The designated authority, therefore, under rule 17 recommended for imposition of anti-dumping duty on the subject goods so as to remove the injury caused to the domestic industry. 25. Rule 18 provides that the Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. 26. However, what transpires is that after the final findings of the designated authority were published in the Gazette on 01.09.2020, Expanded Polymer Systems Pvt. Ltd. and Dow Chemical International Pvt. Ltd. filed writ petitions in the High Court to assail the final findings of the designated authority. A direction was also sought in the writ petitions that the Central Government should not issue any notification on the basis of the final findings dated 01.09.2020 and that the Central Government should grant an opportunity of hearing to the petitioners before taking any decision on the final findings. The writ petitions were heard on 13.10.2020, but as the hearing could not be concluded, i....
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....shall be considered by the Central Government before taking a decision and that the Central Government may even consider hearing the parties while carrying out the above exercise. 30. Pursuant to the aforesaid directions issued by the High Court, Dow Chemical submitted a representation by registered post/speed post on 25.01.2021 and specifically urged that the said representation as well as the previous representations/communications addressed by various interested parties, including that by the Government of Saudi Arabia and Indian Polyurethane Association and other importers be also considered. Sadara Chemical Company also submitted a representation dated 19.02.2021 pursuant to the order passed by the High Court with a specific prayer that this representation and the previous representations be considered by the Central Government. 31. It is in the light of the aforesaid facts that the submission advanced by the learned senior counsel appearing for the appellants that the Central Government should have taken a decision within three months from the date the final findings of the designated authority were notified, has to be examined. 32. The appellants have filed a table in con....
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.... Central Government while considering the recommendations made by the designated authority for imposition of anti-dumping duty. The designated authority, as noticed above, has to undertake a very elaborate process before making a recommendation to the Central Government. The records before the designated authority are voluminous in nature running into hundreds of pages. 36. In the instant case, after the final findings were notified by the designated authority on 01.09.2020, the two appellants filed writ petitions in the High Court to not only challenge the final findings, but to also prohibit the Central Government from issuing any notification pursuant to the recommendation made by the designated authority and on 13.10.2020, the High Court issued an interim direction that the Central Government shall not take any decision on the final findings of the designated authority. The interim direction continued to operate till the writ petitions were decided on 06.01.2021. It was strongly urged on behalf of the writ petitioners, who are the appellants herein, that the Central Government should examine the representations filed for not accepting the recommendation made by the designated ....
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.... final findings to be kept in a sealed cover, expressed the view that if the process is delayed and the time-limit laid down for any of the stages expires without accomplishment, then the entire proceedings may stand frustrated. Besides, the rules clearly provided for the time frame within which each step is to be completed. Except for extension of the period for rendering the final findings by six months, none of the other provisions provide for extension of the statutory periods. As per the scheme of the Antidumping Rules, under rule 17 of the rules, it is mandatory for the Designated Authority to submit the final findings recorded by it to the Central Government within in period of one year from the date of initiation of an investigation. The proviso to rule 17 empowers the Central Government, in its discretion, in special circumstances, to extend further the above period of one year by six months. Under rule 18 of the rules, the Central Government, if it accepts the recommendations of the designated authority, is required to publish a notification in the Official Gazette within three months of the date of publication of final findings by the designated authority under rule 17. ....
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.... pursuance of the said declaration is stayed by an order of a Court shall be excluded. However, neither the Customs Tariff Act, 1975 nor the Anti-Dumping Duty Rules, contemplate automatic extension of the time limit in case any action or proceeding to be taken under the rules is stayed by an order of a court. It is a well settled canon of law that if the statute prescribes a time limit for any action/proceeding, the High Court in exercise of powers under Article 226 of the Constitution of India can neither curtail nor extend such period. Therefore, the submission that the interim relief granted earlier be extended subject to such clarification, cannot be accepted. Nonetheless, the court would still be required to consider the aspect of equity and endeavour to maintain a balance between the interests of the respective parties." (emphasis supplied) 39. It would be seen from the aforesaid decision that the High Court held that if the statutory period lapses, although on account of an interim order granted by the Court, the entire proceedings may stand frustrated. 40. The issue as to whether the time period stipulated to perform an act gets extended because of an interim order of a ....
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....ade with respect to the exclusion of time spent in the court proceedings with respect to interim stay due to court's order, it could have been ex abundanti cautela, which has been considered by this Court in Union of India v. Modi Rubber Ltd. It would have been superfluous to make such a provision.......... 299. In cases where some landowners have chosen to take recourse to litigation (which they have a right to) and have obtained interim orders on taking possession or orders of status quo, as a matter of practical reality it is not possible for the authorities or State officials to take the possession or to make payment of the compensation. In several instances, such interim orders also impeded the making of an award. Now, so far as awards (and compensation payments, pursuant to such proceedings were concerned) the period provided for making of awards under the Act of 2013 could be excluded by virtue of Explanation to Section 11A. 192 Thus, no fault of inaction can be attributed to the authorities and those who had obtained such interim orders, cannot benefit by their own action in filing litigation, which may or may not be meritorious. Apart from the question of merits, when th....
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....ed a stay order from the High Court has to be excluded even if rule 18 does not specifically provide for such exclusion. It was not possible for the Central Government, during the period the interim order operated, to take a decision on the recommendation made by the designated authority. The Central Government had necessarily to wait till the writ petitions were decided and the appellant cannot be permitted to take advantage of a situation created by them. 43. What is also contended by the learned senior counsel for the appellants is that the period of three months provided in rule 18 cannot be extended, even if the High Court had directed, as an interim measure, that the Central Government shall not take a decision. In support of this contention learned counsel placed reliance upon the decision of the Privy Council in Nagendra Nath Dey and the decision of the Supreme Court in R. Rudraiah. 44. In Nagendra Nath Dey, the Privy Council observed as follows: "The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical mean....
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....signated authority. Can the appellants, in such a situation, even contend that despite they having obtained interim orders and despite they having taken substantial time in filing representations pursuant to the directions issued by the High Court, the notification should still have been issued within three months from the date the final findings of the designated authority were notified, or atleast within three months, after excluding the time during which the stay orders operated. Once the appellants had filed writ petitions and obtained a stay order, the Central Government could not have proceeded with the matter till the petitions were decided and when the petitions were decided the Central Government could have proceeded with matter only when both the writ petitioners had filed their representations, in view of the directions issued by the High Court. 50. The appellants cannot be permitted to take advantage of a situation that had been created by them by obtaining an interim order in writ petitions that had disabled the Central Government from taking any decision on the recommendation made by the designated authority. 51. What was also contended by the learned senior counsel....
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....ssion vide section 173 of the Central Goods and Services Tax Act, 2017 with effect from the 1st day of July, 2017, the time limit specified in, or prescribed or notified under, the said Acts which falls during the period from the 20th day of March, 2020 to the 29th day of September, 2020 or such other date after the 29th day of September, 2020 as the Central Government may, by notification, specify, for the completion or compliance of such action as- (a) completion of any proceeding or issuance of any order, notice, intimation, notification or sanction or approval, by whatever name called, by any authority, commission, tribunal, by whatever name called; or (b) filing of any appeal, reply or application or furnishing of any report, document, return or statement, by whatever name called, shall, notwithstanding that completion or compliance of such action has not been made within such time, stand extended to the 30th day of September, 2020 or such other date after 30th day of September, 2020 as the Central Government may, by notification, specify in this behalf:" (emphasis supplied) 58. Subsequently, by a notification dated 30.09.2020, the time period was extended from 30.09.2....
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....f limitation prescribed under the general law of limitation or under special laws. However, the interim order dated 10.07.2020 passed by the Supreme Court, deals with Acts which do not prescribe a period of limitation but fix a time limit to do certain acts like making an arbitral award within a prescribed time. The Supreme Court observed that the order passed on 23.03.2020 and the subsequent orders shall also apply for extension of time limit to Arbitration and Conciliation Act and Commercial Court Acts. 66. On 08.03.2021, the Supreme Court issued further directions and paragraph 2 of the order is reproduced: "2. We have considered the suggestions of the learned Attorney General for India regarding the future course of action. We deem it appropriate to issue the following directions:- 1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021. 2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, ....