TMI Blog2017 (7) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... he two notifications i.e., one continuing the ADD and the original ADD notification. That is, however, not the case here as the intention of the Central Government to continue the ADD without a gap is evident in the present case. There is no hiatus as such between the original notification imposing the ADD and the impugned notification continuing it. If indeed, in terms of Section 5 (3) of the GCA, which by analogy could be extended to notification issued by the Central Government as well, the notification comes into operation “immediately on the expiration of the day preceding its commencement”, it takes us to the point where there is no gap whatsoever between the expiration of the old notification with the commencement of the new. The key words are “immediately on the expiration.” It is not possible to accept the submission of Mr. Sethi that the impugned Notification dated 7th June, 2017 was issued after the expiry of the original ADD Notification which came to an end at the midnight of 6th June, 2017. Petition dismissed - decided against petitioner. - W. P. (C) 5681/2017 & C. M. No. 23728/2017 (stay) - - - Dated:- 24-7-2017 - S. Muralidhar And Prathiba M. Singh, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion had been filed by Saint Gobain India Private Limited (representing the domestic industry) (impleaded as Respondent No. 3 herein) in which inter alia it stated that the subject goods produced by it are similar to the goods imported from the subject countries in terms of physical and technical characteristics, manufacturing process and technology, functions and uses, etc. The period of investigation was to be for 12 months i.e., January to December, 2016. 5. Thereafter, the impugned Notification was issued on 7th June, 2017 in which after noticing the above facts it was stated that the Central Government was amending the Notification No. 6/2013-Cus.(ADD) dated 12th April, 2013 extending the time for operation of the Notification dated 12th April, 2013 upto and inclusive of 6th June, 2018. 6. Mr. Sandeep Sethi, learned Senior Counsel appearing for the Petitioner, has based his entire submission in support of the prayer in the petition on the judgment of the Supreme Court in Union of India v. Kumho Petrochemicals Company Limited 2017 SCC OnLine SC 644. The short submission was that in terms of the second proviso to Section 9A (5) of the CTA there was to be no automatic contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no requirement under Section 9A (5) of the CTA or Rule 23 of the ADD Rules that the notification continuing the ADD during the sunset review had to be necessarily issued prior to the expiry of the earlier notification. He too referred to the decision in Kumho Petrochemicals Company Limited (supra) and pointed out that it did not contemplate a situation like the present one where there is virtually no gap between the expiry of the earlier notification and the issuance of the impugned notification. 10. The above submissions have been considered. At the outset, the Court would like to observe that the fact that the sunset review was initiated even while the original ADD notification dated 12th April, 2013 was in force is not disputed. The short question that arises is whether the impugned notification, dated 7th June, 2017, is sustainable in law in view of the interpretation of Section 9A(5) of the CTA by the Supreme Court in Kumho Petrochemicals Company Limited. (supra). 11. To consider this question it is imperative that this Court undertake a detailed discussion of the decision in Kumho Petrochemicals Company Limited (supra). To begin with, it is necessary to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued another notification dated 2ndJanuary, 2009, which was to remain in force till 1st January, 2014. 14. On 31st December, 2013 i.e., one day before the notification was to lapse, a third review investigation was initiated. Pursuant to the said sunset review, the Central Government issued Notification No. 6/2014-Cus. dated 23rd January, 2014 extending the validity of the duty by one year i.e., up to 1st January, 2015 pending investigation. 15. This notification came to be challenged. After analysing Section 9A of the CTA threadbare, the Supreme Court, in Kumho Petrochemicals Company Limited (supra), came to the following conclusions: i. In the first place, it was held that as far as initiation of the sunset review was concerned, once a decision was taken by the Central Government on a particular date that would be the relevant date and not the date on which it was published. ii. Since the sunset exercise was likely to take some time and might go beyond the period stipulated in the original ADD notification, in order to ensure that there is no vacuum in the interregnum second proviso to Section 9A (5) of the Act empowers the Central Government to continue the ADD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears to have weighed with the Supreme Court in Kumho Petrochemicals Company Limited (supra) was the void or gap between the expiry of the original notification and the issuance of the notification extending the ADD i.e., between 1st and 23rd January, 2014. That case is distinguishable from the present case on the basis of this single fact. 17. The termination of the original notification was on the midnight of 6th/7thJune, 2017.The commencement of the notification continuing the ADD was again at the midnight of 6th/7thJune, 2017. Section 5(3) of the GCA reads as under: 5. Coming into operation of enactments. xxxx xxxx xxxx xxxx xxxx (3) Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. 18. The Court, therefore, finds that there is no hiatus as such between the original notification imposing the ADD and the impugned notification continuing it. If indeed, in terms of Section 5 (3) of the GCA, which by analogy could be extended to notification issued by the Central Government as well, the notification comes into operation immediately on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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