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2018 (12) TMI 175 - HC - Customscontinuation of Anti Dumping Duty (ADD) - Time limit for completing the New Shippers Review - Continuation of investigation - Validity of Initiation notification and Orders of the Designated Authority, dated 10/4/2017 and 12/4/2017 - validity of notification dated 16.6.17 - principle argument was that the authorities had no jurisdiction to continue the investigation beyond a period of eighteen months, from the date of initiation, for the simple reason that New Shippers Review, which deals with only one exporter could not exceed the time period, which is prescribed for investigation, under Rule 17 of the ADD Rules which is the period for investigation, for all exporters. Held that:- The imposition of Anti-Dumping Duty was the outcome of the General Agreement on Tariffs & Trade, 1994, to which India is a party. The purpose behind the imposition of the duty was to curb the unfair trade practices resorted to by the exporters of a particular country of flooding the Domestic Markets with goods, at the rate which are lesser than the rate at which the exporters normally sell the same in their own countries which is the effect of causing injury to the domestic market. Section 9 A was therefore, brought in, to maintain a level playing field and prevent dumping the goods into India while allowing the healthy competition. It is also not in dispute that Rule 22 would deal with much lesser number of exporters. Rule 23 (1-A) provides that Designated Authority shall review the need for continued imposition of Anti Dumping Duty either upon a request by interested party, who submits positive information, substantiating the need of such review or when the reasonable period of time has elapsed since the imposition of the definitive Anti Dumping Duty and upon such review, the Designated Authority has to recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said Anti Dumping Duty is removed, and is not warranted. The period for conducting the review is specified as twelve months. A perusal of the above would show that the period of twelve months (not exceeding 18 months) is provided for the original investigation, a period of 12 months is provided, under Rule 23, but no period has been specified for Rule 22, which is for exporters, who have not been originally investigated because they did not export the goods in question into India. It is to be noted that both under investigation conducted under Rule 17 and 23, the number of exporters are much more compared to the exporters who are scrutinized under Rule 22. The period taken for these assessment cannot exceed the original investigation - Learned counsel for the appellant is justified in contending that if the time taken in review under 22 is longer than the original investigation, then this would allow the foreign exporter to dump its goods into India, on the basis of provisional assessment, to the detriment of the Indian Domestic Industry. The exporter can manipulate his prices and create documents, if the period for investigation, under Rule 22 is not shorter than the original investigation. The agreement to which India is a signatory, is the basis of the ADD, and therefore, the purpose behind that must be the guiding force while interpreting Rule 22. The learned Single Judge erred in applying the literal Rule of Interpretation, to come to a conclusion that to fix the time limit in Rule 22 would amount to rewriting the Rule. In our opinion, the Rule of purpose of interpretation should have been applied - Keeping in view the spirit of GATT, to which India is a signatory and the stand which India has taken in answering various questions. If the time taken in review under 22 is longer than the original investigation, then this would allow the foreign exporter to dump its goods into India, on the basis of provisional assessment, to the detriment of the Indian Domestic Industry. The exporter can manipulate his prices and create documents, if the period for investigation, under Rule 22 is not shorter than the original investigation and the very purpose of imposing Anti-Dumping duty will be lost. The time limit for completing the New Shippers Review must be read into Rule 22 of ADD - In the present case, the procedure under Rule 22, was initiated on 23/9/2015 and it culminated on 12/4/2017, after 18 months, which is more than the time prescribed in Rule 17 and Rule 23. The new Shippers review initiated by Notification dated 23/9/2015, and culminating in final finding dated 10/4/2017, is clearly barred by time. Even in the absence of time limit fixed in rule 22, a review undertaken under Rule 22 is required to be completed on an accelerated basis i.e., definitely before the time period prescribed in Rule 17 or Rule 23. Appeal allowed.
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