TMI Blog2014 (7) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Gazette on 31-12-2013 though it could be made available on 06-01-2014. Consequently the initiation of the sunset review was valid and proper. The petitioners' first challenge to the legality of the initiation therefore, fails. - Decided against the assessee. Legality of the levy pending sunset review - Held that:- the power under the second proviso to Section 9A(5), after expiry of the date of the original notification, is unavailable. - Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all - The imperative nature of second proviso to Section 9A (5) leaves no room for doubt that in case the Central Government wishes to extend the levy during the sunset review period, it has to comply with the terms of that provision and do so, before expiration of the original period. Not having done so, its attempt to levy the duty through the later notification of 23-01-2014 is without authority of law; it is contrary to the terms of proviso to Section 9A (5).The attempt to recover any amounts as duty, therefore, violates Article 265 of the Constitution of India. - the initiation of sunset review is valid and legal; however the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a RP and the petitioner in W.P. (C) 1866/2014 is an importer of the product from Korea RP. Both petitioners are aggrieved by the notifications dated 31-12-2013 and 23-1-2014 by Respondent 1. The Respondent No. 1 is the Ministry of Finance, Union of India. Respondent No. 2 is the Directorate of Antidumping and Allied Duties appointed under Section 9A of the CTA read with Rule 3 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury), 1995 (hereinafter referred to as the Rules ). The Respondent No. 3 is the applicant domestic industry which filed a request to initiate a sunset review to extend the antidumping duty on import of the product originating in, or exported from, Korea RP. 4. India is a signatory to the Marrakesh Agreement establishing the World Trade Organization in 1994. Pursuant to this, she has implemented the Agreement on Implementation of Article VI of the GATT 1994 referred to as the Anti-dumping Agreement (hereafter referred to as ADA ), which is one of the Agreements that forms part of the WTO treaty. In terms of Article 18.4 of the ADA, each Member country is required to ensure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to Section 9A (5), which states that in the event the Central Government wishes to continue the levy during the pendency of review/extension enquiry, which, though initiated before the expiry of the five year period could not be completed before its expiry, then that too should be manifested in an express notification, issued before the expiry of the first notification. If there is such a valid notification, the levy is valid for a period of one year. 7. The petitioners complain that in the present case, the notice proposing the review was published on 06-01-2014, after the expiration of the original notification. Thus, neither the review for continuing the duty, nor the levy during the pendency of inquiry was valid. The petitioners also urge that the notification of 23-01-2014, amending the 2-1-2009 notification so as to make it remain in force till 1-1-2015, was issued without any legal authority. Counsel argued that once the original notification lapsed on 01-01-2014, there could have been no question of resorting to the subterfuge of amending such expired notification. Here it was argued that there is no substantive power to amend the terms of the original notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority as well as the domestic industry applicants, that the first proviso to Section 9A (5) of the CTA as well as a fair reading of Rule 6 do not lead to the conclusion that the intention to review and extend the anti-dumping duty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. It was pointed out that in this case, the extension notification was in fact printed on 31-12-2013 in the Official Gazette. The compelling inference which the Court should draw, therefore, is that the requirement of Section 9-A (5) in that regard had been fulfilled. It was argued that the sunset review proposed by the impugned notification of 31-12-2013 is mandatory in terms of the judgment of this Court, in Indian Metal and Ferro Alloys v. Designated Authority, 2008 (224) ELT 375 Del. 10. Learned counsel argued that whenever sunset review is initiated, apart from the requirement of commencing it before the expiration of the original period, there is also an element of invariability in the imposition of the duty, which would be concededly valid for one year, pending such sunset review, under second proviso to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e like article when5[destined for consumption] in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either - (a) comparable representative price of the like article when exported from the exporting country or1[territory to] an appropriate third country as determined in accordance with the rules made under sub-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6): Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transshipped through the country of export or such article is not produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension: Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. (6) The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any antidumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to - (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governments of the exporting countries: Provided that the designated authority shall also make available a copy of the application to any other interested party who makes a request therefor in writing. (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation: For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mutandis applicable in the case of review. 13. Section 9A was introduced pursuant to India's treaty obligations under the GATT. As is apparent from its provisions and those prescribed by the Rules, anti-dumping measures may be imposed if an investigation conducted in conformity with the procedural requirements, reveals (a) the existence of dumped imports; (b) that the dumped imports are resulting in material injury to a domestic industry; and (c) that there is a causal link between the dumped imports and the injury. (http://www.wto.org/english/tratop_e/adp_e/adp_info_e.htm). The determination of injury is dependent upon objective examination based on positive evidence of the extent of dumping (assessed through a loss of market share of the domestic industry in comparison to the dumped imports) and the effect on prices of the same good in the domestic market (assessed by whether there is a drop in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Authority is satisfied that sufficient evidence exists as to the existence of dumping, injury and causal link between the dumped imports and the alleged injury. After initiation of the suo motu investigation, the same procedure, as the one based on a petition as mentioned in the Rules, is followed. The remedy against dumping is not always in the form of anti-dumping duty. The investigation may be terminated or suspended after the preliminary findings, if the exporter concerned furnishes an undertaking to revise his price to remove the dumping or the injurious effect of dumping as the case may be. No anti-dumping duty is recommended on such exporters from whom price undertaking has been accepted (Rule 15). An interim relief in the form of a provisional anti-dumping duty, pending the finalization of investigation proceedings, can also be provided to the affected domestic industry. Such provisional duty not exceeding the margin of dumping may be imposed by the Central Government on the basis of the preliminary finding recorded by the Designated Authority. The provisional duty can be imposed only after the expiry of 60 days from the date of initiation of investigation and will r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice: the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we are convinced that duty to follow the principles of natural justice is implicit in the exercise of power conferred on him under the said Rules. 19. In this case, the facts indicate that the initiation or commencement of the sunset review is under dispute. The petitioner argues that Rule 6 mandates the publication - which in effect means the making available of the notification to the concerned party- of the decision to initiate the sunset review, before the expiry of the original period. Rule 6 (1) inter alia, requires that The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision Rule 6 (2) states that a copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped Although Rule 6 applies for investigations when antidumping investigations are undertaken in the first instance, sub-Rule (3) of Rule 23 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiation would not be valid unless notice in that regard is made available individually, or to the public, before expiration of the period of the original notification would be that even without a mandatory requirement in the enactment or the rules, a consequence not envisioned in the statute would be deemed. The only consequence provided in the statute is that contemplated by second proviso to Section 9-A (5) i.e. invalidity of a levy during pendency of the sunset review, unless it is imposed before the expiry of the original levy. Courts cannot stretch the operation or effect of a restricted consequence in the manner sought to be urged. This court is supported in this view by the settled proposition that the effect of a proviso should be confined to what it expressly provides (Ram Narain Sons P. Ltd v Asst Commissioner of Sales Tax 1955 (6) STC 627 (SC). In Binani Industries v Commissioner of Commercial Taxes (2007) 6 VST 783 it was held that: The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sunset review is valid. There could be cases, where the initiation might be within time, but public notice is unreasonably delayed; in such instances, it could be argued that the inquiry is vitiated. In the present case, there is no dispute that the initiation took place on 22-12-2013; the notice was published in the Official Gazette on 31-12-2013 though it could be made available on 06-01-2014. Consequently the initiation of the sunset review was valid and proper. The petitioners' first challenge to the legality of the initiation therefore, fails. 22. The next issue is the legality of the levy pending sunset review. The second proviso to Section 9A (5) is conclusive on this aspect. Whilst the need for a sunset review has been described as compelling and mandatory in a decision of this Court (Indian Metals Ferro Alloys Ltd v Designated Authority 2008 (224) ELT 375 Del, based on the Supreme Court ruling in Reliance Industries v Designated Authority 2006 (10) SCC 368), the court had this to say: the first proviso to Section 9A(5) of the Act casts an obligation on the Central Government to ensure that for the protection of the domestic industry (for the reasons given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately. 11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their 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 that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. The duty may remain in force pending the outcome of such a review. It is clear that Section 9A (5) has echoed Articles 11.1, 11.2 and 11.3. In the context of the present discussion, it is pertinent that the Implementation Agreement makes the imposition of duty during pendency of sunset review discretionary ( The duty may remain in force pending the outcome of such a review. ). Likewise, second proviso to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was clarified by the Supreme Court in District Mining Officer and others v. Tata Iron and Steel Co. Anr AIR 2001 SC 3134, where the question as to what is a temporary statute , was examined and it was observed that: 19......... A Statute can be said to be either perpetual or temporary. It is perpetual when no time is fixed for its duration and such a statute remains in force until its repeal which may be express or implied. But a Statute is temporary when its duration is only for a specified time and such a Statute expires on the expiry of the specified time, unless it is repealed earlier ..........Admittedly, to a temporary Statute, the provisions of Section 6 of the General Clauses Act, 1897 will have no application .........A temporary Statute even in the absence of a saving provision like Section 6 of the General Clauses Act may not be construed dead for all purposes and the effect of expiry is essentially one of the construction of the Act....... 25. In the light of the above position, this Court holds that what follows is that the levy of anti-dumping duty ended on 01-01-2014, with the lapse of the original notification. The second proviso to Section 9A (5) prec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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