TMI Blog2015 (1) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation initiated by the Designated Authority for the imposition of anti dumping duty. 2. Heard Mr.R.Parthasarathy, learned counsel for the petitioner, Mr.G. Rajagopalan, learned Additional Solicitor General appearing for the respondents 1 and 2 and Mr.Vijay Narayan, learned Senior Counsel appearing for the fifth respondent. 3. The petitioner is engaged in the business of trading clear float glass in India, after importing the same from Saudi Arabia on regular basis through Chennai Port. On a complaint jointly filed by the respondents 3 to 5, who are the domestic manufacturers of the product, the Designated Authority under the Customs Tariff Act, 1975, initiated an anti dumping investigation on 11.4.2013. The period for completion of the investigation in terms of Rule 17(1) of the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, expired on 10.4.2014. Despite the fact the Designated Authority sought extension of time under the first proviso to Rule 17(1), the Central Government passed an order only on 12.5.2014 granting extension of time upto 10.7.2014. Since the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) normal value , in relation to an article, means- (i) the comparable price, in the ordinary course of trade, for the like article when 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 sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) or any anti-dumping duty imposed under sub-section (2), shall not apply to articles imported by a hundred per cent export-oriented undertaking unless,- (i) specifically made applicable in such notifications or such impositions, as the case may be; or (ii) the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India. Explanation: For the purposes of this sub-section, the expression hundred per cent export-oriented undertaking shall have the meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944. (3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that - (i) there is a history of dumping which caused inquiry or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article imported in a relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in of dumping in relation to an article, exported by an exporter or producer, under inquiry under sub-section (6) shall be determined on the basis of records, concerning normal value and export price maintained, and information provided, by such exporter or producer. PROVIDED that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available. (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. (8) The provisions of the Customs Act, 1962 and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. 36. What is contemplated in Sub-section (1-A), is an enquiry to find out whether there was circumvention of anti-dumping duty imposed under Sub-section (1), either by altering the description or the composit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the expiry of six months. An order granting extension of time was passed after the expiry of the original period. The Punjab and Haryana High Court held that once the period of six months expires without being extended before its expiry and a break occurs in the continuity of lawful possession of the Customs Authorities, the right of the owner of the seized goods to claim their return accrues at once and that it cannot be defeated by extending the time after the expiry of the period. The Court held that the word 'extension' signifies that what is to be extended, should be in existence on the date of extension. The Court also held that once the period stipulated expires, a vested right accrues to the party and that the said vested right cannot be taken away by the extension of time granted after the expiry. 41. But, the decision in Tarsem Kumar, may not be of any assistance to the petitioner, in view of the fact that under Section 110(1) of the Customs Act read with Section 124, a liability is imposed upon the Customs Officer to return the article that was seized, to the person from whom it was seized. In other words, the immediate consequence of the expiry of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act. In other words, the word 'extension' when used in its proper and usual sense in connection with a lease means a prolongation of the lease. Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole. The purposes of the lease were not expected to last for only 10 years and as Mr.A.K.Sen rightly pointed out the schedule specifically mentioned the lease as 'for a stipulated period of 20 years'. As these words are very clear, there is very little for the court to do about it. 44. But, the ratio laid down in this case also may not be of any assistance to the petitioner. This is in view of the fact that upon the expiry of the prescribed period, a statutory right was conferred upon the party and hence, the Court felt that nothing could be done to divest the party of such a right, post facto. 45. In Kumho Petrochemicals Co. Ltd. v. Union of India [W.P.(C).No.1851 of 2014, C.M.Nos.3866 and 3877 of 2014 etc. cases dated 11.7.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the re-vesting of an expired right would not be an extension, but only to be a recreation. Lord Ellenborough, C.J., pointed out that the word 'extension' imports the continuance of an existing thing and that a great public injury would be effected by calling back a right that by lapse of time had become extinct. But, the said decision is also of no use to the petitioner, since the word 'extension' occurred in the 8th Section, which was connected with the 9th Section. Moreover, certain rights such as copyrights are proprietary in nature and once the products, in respect of which, such rights are enjoyed, come into public domain, the clock cannot be put back. 48. In Ambali Karthikeyan v. Collector of Customs [2000 (125) ELT 50 (Ker.)], the Kerala High Court was concerned with the interpretation of Section 110(2) of the Customs Act, 1962, under which, the goods, which are seized, are liable to be returned to the person, from whom they are seized, if no notice is given under Section 124(a). The proviso to Section 110(2) enabled the Collector of Customs to extend the period of six months by another period not exceeding six months. It is in that context that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Court held that an award passed beyond the prescribed period, without the prior approval of the Government or the prescribed authority, vitiated the entire acquisition proceedings. No inspiration can be drawn even from this case, since valuable rights to immovable property, protected by Article 300-A of the Constitution, were involved in the case. 52. I agree with Mr.P.S.Raman, learned senior counsel for the petitioner that the Customs Tariff Act, 1975, is both an economic as well as fiscal legislation. The primary object of this legislation is to levy additional duties upon articles of import. Sections 9-A, 9-B and 9-C were inserted, with a view to neutralise the effect of articles of foreign origin being brought into India at less than their normal value. The only prescription with regard to any time limit, contemplated by the Act, is to be found in Sub-section (5) of Section 9-A. No time limit is prescribed therein either for the initiation of an investigation or for the recording of final findings. As a matter of fact, any delay in the recording of final findings, actually enures to the benefit of the person on whom anti-dumping duty is levied, since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption of the investigation. 56. Generally, time limits prescribed, especially in subordinate legislation, can be taken only to be directory and not mandatory. Otherwise, a subordinate legislation may even destroy the Parent legislation, by default. 57. In Raza Buland Sugar Co. Ltd v. The Municipal Board [AIR 1965 SC 895], a Constitution Bench of the Supreme Court held that the question whether a particular provision is mandatory or directory, cannot be resolved by laying down any general rule and that it would depend upon the facts of each case. The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting therefrom when the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject as well as other considerations which may arise on the facts of a particular case, including the language of the provision. The said decision of the Constitution Bench was followed in Salem Advocate Bar vs. Union of India [2005 (6) SCC 344]. While doing so, the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under Section 271(1)(a) for levy of penalty, on the ground that there was delay in filing the returns without reasonable cause. But, the assessees contended that they had made applications for extension of time. The Income Tax Officer rejected the contention on the ground that the application for extension of time ought to have been made before the expiry of the due date for the filing of returns. He also levied penalty. The Appellate Authority set aside the order of penalty, forcing the revenue to prefer appeals to the Tribunal. The Tribunal restored the orders of the Income Tax Officer and a reference was made to the High Court. Having regard to the proviso to Section 139(2), which did not contain any limitation to the effect that an application for extension should be filed within the stipulated time, the High Court held that an application for extension of time can be made even after the expiry of that period. The view taken by the High Court in the tax case reference was upheld by the Supreme Court in Ajanta Electricals. While doing so, the Supreme Court pointed out that there is no scope for interpreting the word extend appearing in the proviso to Section 139(2) to mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escription and also stipulates the consequences of non compliance with the condition, it would normally be taken to be mandatory. If the consequences of non compliance are not indicated, then, the provision has to be seen only as directory. 64. This test can be applied as a litmus test in the very case on hand. Section 9-A(5) prescribes a period of five years as the period of validity of anti-dumping duty imposed under this provision. The first proviso to Sub-section (5) which enables the Central Government to extend the period of validity, makes it clear that such extension would commence only from the date of the order of extension. If the expression extension used in the first proviso to Sub-section (5) of Section 9-A is to be given the very same meaning as the petitioner wants me to give, there is no necessity for the Parliament to state in the last line of the first proviso that such further period shall commence from the date of the order of such extension . If an extension, to be valid, has to be ordered before the expiry of the original period, the commencement of the extended period, will be the day following the date of expiry of the first period. Therefore, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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