TMI Blog2016 (12) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 226 of the Constitution as discussed hereinabove. In that view of the matter, the contention that the petition ought not to be entertained as being premature, also does not merit acceptance. Grant of interim relief - Held that: - the interim relief as granted earlier cannot be continued as the same may result in the lapse of the statutory period and render the proceedings infructuous. That, however, does not mean that the petitioners are not entitled to any interim relief - the court is of the view that the interests of all the parties could be balanced if the Central Government is permitted to proceed further pursuant to the final findings, if it so deems fit. If the Central Government decides not to revoke the anti-dumping duty, the present petitions may not survive. However, in case a notification revoking the anti-dumping duty is published in the Official Gazette, the interests of the petitioners can be taken care of by providing that in such an eventuality, such notification shall not be acted upon till the final hearing of the petitions. This would also take care of the interests of the private respondents who have stated that their right to get refund of the duty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Disclosure Statements. 3. Learned counsels for the petitioners invited Court's attention to the provision of Section 9(A), 9(B) and the facts of the matter to indicate that the Anti-Dumping duty imposed and being levied from 03.07.2012 is ordinarily to enure for a period of five years, which would end on 03.07.2017. However, as provided under Rule 23 of the Rules, the provision of review of any Anti-Dumping duty imposed under Section 9(A) is provided on the parameters mentioned therein, which includes the exercise to be undertaken by the designated authority for arriving at a conclusion for making final recommendations to the Government. The period for investigation is ordinarily one year, but extendable by Union of India in a given case. 4. In the instant case, it was submitted that the notice for initiating of investigation under Rule 23 of the Rules was issued on 21.07.2015 and 01.10.2015, and ultimately the Rule 16 Disclosure of information came to be provided only on 14.09.2016, which runs into more than 50 pages and it was pointed out that essentially three factors, which were required to be considered and information whereon was required to be disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered view that prima facie the submissions made on behalf of the petitioners appears to be correct, as the essential aspects on the threat of injury to the domestic industries is conspicuously absent in its advertence, as could be seen from the Statements of Disclosure in question. 9. The counsels for the petitioners also are prima facie correct in submitting that the respondent no.2 could not have rendered its finding in the fact disclosure statement itself, as could be seen from paragraph nos.59, 60 and 61 at Page nos.316, 317. 10. The said findings do not indicate anywhere that it is merely a tentative or it is likely to be changed, as development of the facts and instances and the time limit given for filing submission would be indicative of the fact that there is substance in the submission of the counsels that there is a lack of time and material for effectively put forth the case of the petitioners before the authority, which would be also one facet of the principles of natural justice so far as the final findings are required to be rendered by the authority. 11. The counsels for the petitioners also contended that, as could be seen from the factors to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration by the authorities without they being available to the petitioners, as many columns have been containing asterisk marks, and figures have been withheld from the interested parties. 13. In that view of the matter, let there be Notice returnable on 17.10.2016 . 14. In the meantime and till the returnable date, the respondent no.2 is restrained from rendering the final finding on the mid-term review undertaken pursuant to the notice dated 21.07.2015. It would be open to the respondents to proceed with the inquiry and investigation and also open to the petitioners to place on record to the authorities their submissions so as to avoid any unnecessary wastage of time, but final findings or any subsequent decision may not render till the next date of hearing. 15. This order is passed ex parte, therefore, it goes without saying that it would be open to the other side to approach the Court even prior to the returnable date for vacation and/or modification of the order. Direct service permitted. Office is directed to place copy of this order in each matter. 3. On 17.10.2016, the Bench passed the following order: Learned counsel Shri Desa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Stand over to 30.11.2016. The parties are expected to complete all their pleadings by then. Ad-interim relief granted earlier to continue till then. 5. On 26.11.2016, the petitioners moved applications being Civil Applications No.11929 of 2016 and No.11930 of 2016 in Special Civil Applications No.16426 and 16427 of 2016 respectively, praying that the respondent No.1 be restrained from acting upon the final findings dated 23.09.2016 and issuing notification under rule 18 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the rules ) in pursuance of the final findings dated 23.09.2016 issued in respect of Mid Term Review of Anti-Dumping Duty imposed on imports of Soda Ash from Peoples Republic of China, European Union, Kenya, Pakistan, Iran, Ukraine, USA. 6. After hearing the learned counsel for the respective parties, the Ministry of Finance, Department of Revenue, Government of India, New Delhi was permitted to be joined as respondent No.3 in the said applications and it was observed thus: Having regard to the fact that this court, by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the end of the session, Mr. Nankani, learned counsel for the respondent No.7 submitted that the pleadings are not yet complete and that the matter may only be heard on the question of maintainability, admission and interim relief. It was submitted that the respondent No.7 had been joined only on 29.11.2016 and has not had the opportunity to file a counter and that considering the detailed submissions made by the learned counsel for the petitioners, a detailed reply would be necessary. Therefore, while the court was ready to hear and decide the matters finally and the learned counsel for the petitioners had also, accordingly, made detailed submissions, the learned counsel for the respondents have shown unwillingness to proceed with the final hearing of the matters and on the contrary, a request was made by Mr. Nankani for fixing the matter for hearing on the question of interim relief on 27.12.2016. In view of the objection raised by the learned counsel for the respondent No.7 to the hearing of the matter finally, the court despite having heard the learned counsel for the petitioners at a considerable length, restricted the hearing to the question of maintainability, admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt made under rule 16 of the rules. The petitioner has simultaneously participated as a member of the Alkali Manufacturers Association of India which raised objections which were duly considered by the designated authority. It was contended that the petitions which were filed at the stage of disclosure statement have been rendered infructuous in view of the subsequent events which have occurred. Now, the challenge is to the final findings, which are merely recommendatory in nature, and in case the same are accepted by the Central Government, the appeal would lie to the CESTAT under section 9C of the Act. 10.1 Reference was made to the decision of the Supreme Court in the case of Association of Synthetic Fibre Industry v. J. K. Industries Ltd. , (2005) 11 SCC 482 , to submit that there should be no interruption or disruption so far as the operation of the provisions of the Customs Tariff Act, 1975 relating to anti-dumping duty and the rules framed in that regard are concerned. It was submitted that the final findings have been issued on 23.09.2016; under rule 18 of the rules, limited time of three months is available to the Government to issue notification, therefore, at this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment is vested with powers under rule 18 of the rules to accept or not to accept such recommendations. It was submitted that when final findings are subject to approval of the Central Government, it is that power of the Central Government which is sought to be taken away and the entire machinery under the rules is sought to be frustrated. It was submitted that the power of the Central Government is discretionary, plenary and not restricted under rule 18 of the rules. It is, therefore, open to the petitioners to make a representation to the Central Government pointing out all the relevant aspects. However, if the petition is entertained, the whole exercise under rule 18 of the rules would be frustrated. Therefore, a judicial review of a recommendation stands on a different footing than the final notification and that judicial review should not scuttle the proceedings at this premature stage. 11. Mr. Mihir Joshi, Senior Advocate, learned counsel for the petitioners submitted that against a disclosure statement, there is no provision for appeal and similar is the case with final findings. Therefore, at present, against the final findings, the petitioner does not have any remedy b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only course of redressal available to the petitioners is by way of the present writ petitions. 11.2 As regards why the High Court should exercise powers under article 226 of the Constitution of India, it was submitted that the designated authority is an officer of the Central Government and that designated authority and the Central Government are one and the same. The Central Government is not an appellate body over the designated authority and that the role of the Central Government is legislative and there is no mandate for making a reasoned order for the purpose of imposing anti-dumping duty or revoking an order of imposition of anti-dumping duty. It was submitted that the petitioner is seriously prejudiced by the findings recorded by the designated authority, inasmuch as, the final findings are the culmination of an adjudicatory process. The designated authority which is a quasi-judicial authority, has to come to a definite conclusion and against such order of the quasi-judicial authority, it cannot be said that an aggrieved party has no recourse. It was submitted that from the scheme of the Act and the rules, it is apparent that if the final findings are negative, the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in these circumstances, given the final findings recorded by the designated authority, the notification has to follow, and even otherwise, the final findings would come in the way of the petitioner when it seeks extension of imposition of antidumping duty. 11.3 Adverting to the merits of the case, it was pointed out that the notification of levy of anti-dumping duty is dated 03.07.2012, which is for a period of five years. The midterm review notification is dated 21.07.2015. The period prescribed under rule 17 for issuance of final findings by the designated authority is twelve months, which is extendable by six months in terms of the proviso to clause (a) of sub-rule (1) of rule 17 of the rules. It was submitted that the public hearing was held on 02.03.2016 and the designated authority sought extension of time on 27.06.2016 and by an order dated 15.07.2016, the Central Government extended the time for a period of two months, that is, till 30.09.2016. It was submitted that the disclosure statement was issued on 14.09.2016 and the final findings were to be issued on or before 30.09.2016, leaving a very little time for the parties to be afforded a reasonable opportunity of hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the final findings, it was argued that the entire exercise carried out by the designated authority is without taking into consideration that the domestic injury was operating under a protected regime and that he was dealing with a healthy growth in a protected regime. It was submitted that there is no application of mind that determination is for the period of protective regime. It was submitted that the antidumping duty can be levied only up to the dumping margin and that the margin of dumping is the cap. Referring to the findings recorded by the designated authority in paragraph-72 of the disclosure statement, it was pointed out that the authority has found that during the POI as well as post-POI, the price undercutting effect of dumped imports is positive in respect of all the subject countries individually except Pakistan. Referring to paragraph-53, it was pointed out that even in the protected regime, the designated authority has found that the volume has gone up and will continue to go up. It was pointed out that the designated authority has found that the price underselling was non-injurious and that for the purpose of giving fair price for the domestic industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitably modified in terms of the decision of the Supreme Court in the case of Association of Synthetic Fibre Industry v. J. K. Industries Ltd. (supra). 13. Mr. Sitaraman, learned advocate with Mr. Anand Nainavati, learned advocate for the respondent No.5 submitted that the private respondents are domestic manufacturers of detergents and that they have to pay the anti-dumping duty on the soda ash purchased by them. That the cost of soda ash is increasing and that the designated authority has recorded with final findings which are in favour of the domestic consumers of soda ash. It was submitted that the balance between the users and the producers is also required to be maintained and their interests should also be taken into account. It was submitted that the Government is the best arbiter of interests of both the parties and hence, the decision as to whether or not to implement final findings should be left to the Government. 14. Mr. Pramod Rai, learned advocate with Mr. Vishal Sevak for the respondent No.3 submitted that the balance of convenience lies in favour of the respondents, inasmuch as, in view of the interim relief passed by this court, the Government would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the time limit for publication of final findings was not sufficient for the parties to be afforded a reasonable opportunity of hearing; (ii) the designated authority placed reliance upon material and facts for concluding the issue against the petitioners which did not form part of the disclosure statement; (iii) while an element of confidentiality is permitted, however, the same cannot be transgressed beyond a certain limit whereby, it amounts to infringement of the principles of natural justice. The final findings have also been assailed on the ground that the designated authority failed to examine all parameters of threat of injury leading to a flawed investigation and resulting in a flawed determination; there is absence of consideration of mandatory relevant legal provisions and facts germane to the issue; the designated authority has failed to appreciate that the object of mid-term review is not to inquire whether the need for imposition of antidumping duty exists but to determine whether the absence of its continuance would lead to injury to the domestic industry. 17. This court in Alembic Ltd. v. Union of India , 2013 (291) ELT 327 (Guj.) , has held that the combin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit acceptance and is, accordingly, rejected. 18. As regards the decisions on which reliance has been placed on behalf of the respondents to contend that the petitions are not maintainable, this court is of the view that none of the said decisions in any manner support the case of the respondents. On the contrary the Supreme Court in Association of Synthetic Fibre Industry v. J. K. Industries Ltd. (supra) has categorically held thus: 8. Though we are confident that the High Court would certainly conclude the hearing before it as expeditiously as it can and would pronounce its judgment, yet we do not find any justification for sustaining the interim orders dated 25-1-2005 and 16-2-2005 passed by the High Court. The same are directed to be vacated. The designated authority may submit its final findings to the Central Government and the same shall also be available for being published by way of notification. The Central Government may take its own decision on such findings in accordance with law. Needless to say, all these steps including the imposition of anti-dumping duty, in the event of the Central Government forming an opinion to do so, would be subject to the result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not to be entertained, in Alembic Ltd. V. Union of India (supra), on which reliance has been placed on behalf of the respondents, this court in paragraph 31 of the reported decision has held that Sub-rule (1) of rule 18 uses the word may . Unless there are sufficient reasons it would not be possible for the court to read the word may as shall . In comparision to this, sub-rule (4) of rule 17 provides that if final finding of the designated authority is negative, the Central Government shall withdraw the provisional duty if imposed. Thus, in such a situation, the legislature had left no option no discretion to the Central Government but to act in accordance with the final findings of the designated authority and withdraw the provisional duty imposed. Thus, though the final findings may be recommendatory, the question as to whether the Central Government has any discretion not to revoke the anti-dumping duty despite the final finding of the DA being negative needs to be examined . On behalf of the petitioners it has been contended that the final findings are final as regards the findings recorded therein. If the finding regarding anti-dumping is negative, the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of the proceedings subject to a case in that regard being made out. That is what the law is. The decision of the Central Government in the matter of anti-dumping duty is appealable and also subject to writ jurisdiction on well-settled parameters of constitutional law. 24. Thus, the Supreme Court, in a case where the High Court had directed that the final findings to be kept in a sealed cover, was 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 Anti- dumping 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 within a period of two years from 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 respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da ash in the domestic market which would prejudicially affect their rights, whereas on behalf of the private respondents/domestic consumers it has been contended that any delay in issuance of a notification under rule 18 of the rules by the Central Government prejudicially affects them as they would not be entitled of refund of the anti-dumping duty paid by them in the interregnum as their rights get crystallised only upon issuance of a notification. In this backdrop, the court is of the view that the interests of all the parties could be balanced if the Central Government is permitted to proceed further pursuant to the final findings, if it so deems fit. If the Central Government decides not to revoke the anti-dumping duty, the present petitions may not survive. However, in case a notification revoking the anti-dumping duty is published in the Official Gazette, the interests of the petitioners can be taken care of by providing that in such an eventuality, such notification shall not be acted upon till the final hearing of the petitions. This would also take care of the interests of the private respondents who have stated that their right to get refund of the duty paid during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule has been framed in the interest of international trade and it is in this background that the court held that the delicate balancing act between protection of domestic industry and the hardship caused in the course of international trade has thus been tilted in favour of the latter. The court has not laid down any absolute proposition of law that in every eventuality, the balance would tilt in favour of international trade. In the opinion of this court, the above decision would have no applicability to the facts of the present case, and the question as regards balance of convenience would always depend upon the facts and circumstances of each case. 30. For the foregoing reasons, the court is of the view that the matters require consideration. Hence, issue Rule returnable on 16th January, 2017. Mr. Devang Vyas, learned Assistant Solicitor General waives service of notice of rule on behalf of the respondents No.1 and 2; Mr. Vishal Sevak waives for respondent No.3; Mr. Paritosh Gupta, learned advocate waives service of notice of rule on behalf of the respondent No.4 in Special Civil Applications No.16426 of 2016 and No.16427 of 2016 as well as for respondent No.5 in Special ..... X X X X Extracts X X X X X X X X Extracts X X X X
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