AI Drafter 
TaxTMI 
TaxTMI 
2021 (11) TMI 1161
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....Sulekha Beevi C.S., Member (Judicial) 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, conc....
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....n of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) 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....
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....that the Central Government will have to apply its own independent mind to the relevant factors before taking 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. U....
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....ustry made the following submissions: (i) The time limit of three months prescribed in rule 18 of the 1995, Anti-Dumping Rules is merely directory in nature and in any 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 ....
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....nt pursuant to the directions by the High Court; (ii) The Delhi High Court in Deepak Fertilizers observed that rules cannot provide for any limitation in issuing the notification by the Central Government when the Tariff Act does 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 ma....
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....mination of normal value and export price and margin of dumping. It provides that the designated authority while determining the normal value, export price and margin of dumping shall take into account the principles contained in clauses (1) to (8) of 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 impo....
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....d authority concluded that the product under consideration was exported to India from the subject countries below its associated normal value resulting in dumping. The designated authority also concluded that the domestic industry had suffered material injury due to the 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....
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....nd and after taking into consideration the relevant factors take a decision on the recommendation one way or the other. The High Court further directed that the representations submitted by the parties, including the one submitted by Indian Polyurethane Association on 28.09.2020, 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 a....
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....may stand frustrated. 35. For imposition of anti-dumping duty, the Central Government has to issue a notification in the Official Gazette within three months of the date of publication of the final findings. Such a time period is specified looking to the nature of the exercise that has to be undertaken by the 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 authorit....
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....ignated authority were also challenged. After holding that a writ petition would be maintainable, the Gujarat High Court referred to the decision of the Supreme Court in Association of Synthetic Fibre Industry and observed as follows: "23. Thus, the Supreme Court, in a case where the High Court had directed that the 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....
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....om the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. The Explanation thereto, however, provides that in computing the period of two years referred to in the section, the period during which any action or proceeding to be taken in 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) ....
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....e above propositions. However, in the present case, when we construe the provisions of Section 24, it clearly ousts the period spent during the interim stay of the court. Five years' period is fixed for the purpose to take action, if they have not taken the action for 5 years or more, then there is lapse, not otherwise. Even if there had been a provision made 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 perio....
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....e Court also observed that a litigant may be right or wrong in approaching the Court, but he cannot be permitted to take advantage of a situation created by him in obtaining an interim order. 42. It is, therefore, clear from the aforesaid Constitution Bench decision of the Supreme Court in Indore Development Authority that the time period during which the appellants had obtained 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 ....
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....he entire materials on record, including the representations filed by them, and taken a decision within the remaining 5 days. 49. The situation would have been different if writ petitions had not been filed, but as it transpires, it is the appellants who had filed the writ petitions and obtained interim orders restraining the Central Government from taking any decision on the recommendation may by the designated 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 fi....
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....to the 2020 Act, it would be useful to reproduce the provisions of section 6 of the said Act and they are as follows: "CHAPTER V RELAXATION OF TIME LIMIT UNDER CERTAIN INDIRECT TAX LAWS 6. Notwithstanding anything contained in the Central Excise Act, 1944, the Customs Act, 1962 (except sections 30, 30A, 41, 41A, 46 and 47), the Customs Tariff Act, 1975 or Chapter V of the Finance Act, 1994, as it stood prior to its omission 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, docu....
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....d extended only upto 31.12.2020. 64. It is for this reason, that the respondents also relied upon the interim orders passed by the Supreme Court from time to time in "RE: Cognizance for Extension of Limitation" that extended the period of limitation in view of Covid pandemic. 65. The order dated 23.03.2020 passed by the Supreme Court deals with the problems faced by the litigants in filing writ petitions/applications/suits/appeals, all other proceedings within the period of 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 regard....