TMI Blog2017 (9) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter and heard first on 25th August 2017. Whether the Petitioner having made out a prima facie case which weighed with the Court to persuade it to direct the initiation of the SSR as an interim measure, can be refused the consequential relief of continuation of ADD in the circumstances that the Petitioner points out? - Held that: - the Court finds that the conclusions reached by the DA, which have been summarised hereinbefore, do not prima facie appear to have accounted for the detailed statistics placed before the DA by the Petitioner some of which have been referred to earlier by the Court. In particular, the possibility of the undercutting of the price at which the product may be sold by the domestic industry has not been adverted to by the DA. Also, the present annual capacity of the entities in China PR which are unutilized and which far exceed the Indian demand of 2200 MT per year does not appear to have been discussed by the DA. The Court is satisfied that the balance of convenience in directing continuation of the ADD pending the conclusion of the SSR subject, of course, to the outer limit of one year as stipulated in the 2nd proviso to Section 9A(5) of the CTA, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state that the proceedings would be subject to the final outcome of the writ petition. The said writ petitions are, in fact, being finally heard by this Court. They are listed for further hearing on 6th September 2017. 3. Considering that the date of expiry of the Anti Dumping Duty ('ADD') in the present case is 29th August 2017, the Court directs the Respondents to initiate the SSR in the Petitioner's case not later than 29th August, 2017. The SSR notification shall clearly state that the proceedings would be subject to the final outcome of the writ petition. This order is without prejudice to the rights and contentions of the parties and will continue till further orders. 4. As regards the question of continuation of the ADD, Mr. Sandeep Sethi, the learned Senior Counsel for the Petitioner, relies on the decision of the Supreme Court in Union of India v. Kumho Petrochemicals Company Limited 2017 (351) ELT 65 (SC). Learned counsel for the Respondents seeks time for instructions. 5. List on 29th August 2017. 6. Order Dasti under the signature of the Court Master. 3. The present application was listed today to consider whether the ADD that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places considerable reliance on the decision of the Supreme Court in Union of India v. Kumho Petrochemicals Company Limited 2017 (351) ELT 65 (SC) (hereafter Kumho) to contend that where the SSR is initiated by the Central Government then in all likelihood the Central Government would make use of second proviso and issue notification for continuing the said Anti Dumping Rules . 7. Mr. Sethi submits that the mere fact that the Petitioner is also an importer of the product would not come in the way of the Petitioner being considered as a domestic industry within the meaning of Rule 2(b) of the Anti Dumping Rules. He refers to the fact that in the earlier SSR undertaken at the request of the Petitioner, the DA had in the Final Findings dated 5th April 2006 held that the mere fact that there were imports made by the Petitioner under a Duty Free Advance Licence which were used for export purpose only will not disqualify the domestic producers like the Petitioner for being considered as domestic industry under Rule 2(b) of the Anti Dumping Rules. 8. Mr. Sethi further points out that in the petition filed by it seeking initiation of the SSR, the Petitioner had given sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered meaningless. According to him, that is not the legislative intent and which is why the Supreme Court declined to read the word may as shall in para 32 of its decision in Kumho. 11. Mr. Narula also points out that it is only because of the interim order of this Court that the SSR has now been initiated but as far as the Central Government is concerned, unless there is a proper notification both for the purposes of initiating the SSR and for continuation of the ADD, there is no automatic continuation of the ADD only because the Central Government has decided that a SSR must be initiated. According to him, the factors that should weigh with the Central Government for continuation of ADD need not be the same for initiating the SSR. 12. The above submissions have been considered. At the outset, this must be noted that in all earlier instances when the domestic industry came to the court seeking relief against a decision of the Central Government declining to initiate the SSR for some reason, it was not prior to the expiry of the notification imposing the ADD. In fact, in Kumho there was a considerable gap between the expiry of the notification imposing ADD and the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the lapse of original notification. 32. We are conscious of the fact that once sunset review is initiated, such initiation takes place only after a substantiated application/request is filed by the indigenous industry which is examined and a prima facie view is formed by the Central Government to the effect that such a review is necessitated as withdrawal of anti-dumping duty or cessation thereof may be prejudicial to the indigenous industry. Once such an opinion is formed and the sunset review is initiated, in all likelihood the Central Government would make use of second proviso and issue notification for continuing the said antidumping duty. At the same time, it cannot be said that without any overt act on the part of the Central Government, there is an automatic continuation. The learned counsel for respondent rightfully pointed out that the legislature has consciously used the expression may and shall at different places in the same Section, i.e., Section 9A of the Act. In such a scenario, it has to be presumed that different expressions were consciously chosen by the Legislature to be used, and it clearly understood the implications thereof, therefore, when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r having itself imported the product, cannot be considered to be a domestic industry appears to be contrary to the DA s own conclusion in the earlier SSR which culminated in the Final Findings dated 4th April, 2006. 18. It appears to the Court that the factors that should weigh with the Central Government both for the initiation of the SSR and for continuation of ADD cannot be said to be unconnected. The Court is satisfied that a prima facie case does exist in favour of the Petitioner for continuation of the ADD. 19. Also of some significance is the question of balance of convenience. Mr. Sethi is right in his submission that the loss that the domestic industry might suffer on account of the cessation of the ADD cannot possibly be compensated if later it is held that the SSR ought to have been initiated by the Central Government and the ADD ought to have been continued. In this context, it must be understood that the continuation of the ADD is not for an indefinite period. Even in terms of the 2nd Proviso to Section 9A (5) of the CTA, the ADD can continue only for a period extending one year pending the outcome of the SSR. The hiatus that might be caused as a result of the SS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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