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TMI Blog2017 (10) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... USTICE S.R.BRAHMBHATT) Draft amendment in Special Civil Application No.14204 of 2017 is allowed. The same shall be carried out forthwith. 2 Heard Shri Saurabh Soparkar, learned Senior Advocate, Shri Mihir Joshi, learned Senior Advocate, assisted by Mr Gaurav Mathur, learned advocate for the petitioners and Mr S.V. Raju, learned Senior Advocate, assisted by Mr Vishal Sevak, learned advocate for the respondent no.6 and Shri Balbir Singh, learned Senior Advocate, assisted by Mr Devnath Somnath Shukla, Mr Hardik Modh, for respondent no.7. 3 The challenge in this group of petitions is to order dated 22nd July 2017 whereunder responder no.2 - Designated Authority has given its final finding on Mid Term Review (MTR) recommending withdrawal of the Anti Dumping Duty against the product called 'Soda Ash' and the second order of even date on Sunset Review is annulled/rescinded with immediate effect, as a result whereof the petitioners have been compelled to approach this Court for seeking appropriate reliefs. The reliefs which are prayed for in Special Civil Application No.14204 of 2017 could be considered to be a common reliefs to the extent of final finding dated 27.07.2017 on M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: "Section 9A. Anti-dumping duty on dumped articles - (1) Where any article is exported by an exporter or producer from any country or territory (hereafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation.-For the purposes of this section,- (a) "margin of dumping" in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined,- (a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and (b) refund shall be made of so much of the antidumping duty which has been collected as is in excess of the anti-dumping duty as so reduced. [2A] Notwithstanding anything contained in subsection (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under subsection (2), shall not apply to articles imported by a hundred per cent, export-oriented undertaking unless,- [i] Specifically made applicable in such notification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 anti-dumping 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 may be determined and for the assessment and collection of such antidumping duty. (6A) The margin 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic industry after considering the principles laid down in the Annexure III to these rules.] (2) The final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information regarding - (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the product which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination. (3) The designated authority shall determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation : Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the investigation as referred to in the second proviso to sub-rule (3) of rule 17. (3) Notwithstanding anything contained in sub-rule (1), where a domestic industry has been interpreted according to the proviso to sub-clause (b) of rule 2, a duty shall be levied only after the exporters have been given opportunity to cease exporting at dumped prices to the area concerned or otherwise give an undertaking pursuant to rule 15 and such undertaking has not been promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question. (4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the investigation was initiated, the Central Government shall, within forty-five days of the publication of final findings by the designated authority under rule 17, withdraw the provisional duty imposed, if any. 19. Imposition of duty on nondiscriminatory basis.- Any provisional duty imposed under rule 13 or an anti-dumping duty imposed under rule 18 shall be on a non-discriminatory basis and applicable to all imports of such articles, from whatever sources found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whereunder the authorities got the time to complete these proceedings latest by September 2016. The said exercise culminated into issuance of disclosure statement dated 14.09.2016, which came to be challenged by the petitioners and other affected industries by way of writ petition being Special Civil Application No.16426 of 2016 and other allied matters being Special Civil Applications Nos.16427 to 16429 of 2016 in which the Court initially granted interim relief under order dated 13th December 2016 in which the authorities were permitted even pass appropriate orders and issue notification, but the same was to be kept in abeyance in light of the fat that those petitions were pending final disposal. 8 Ultimately, those petitions came to be disposed of vide order dated 23.02.2017 and the Court made following observations and directions: "39.1Reference was also made to the decision of the Supreme Court in the case of Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd., (1995) 1 SCC 642, wherein it has been held that the period of time fixed for passing an order applies only to the initial order and not to any subsequent order that may have to be passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definitive duty in force against the subject goods originating in or exported from the subject countries." 10 Thus, at this stage it deserves to be noted that there is a rival contention on account of the observations of paragraph D as well as in para 7 by both the sides that the said notification of initiation of Sunset Review was after recording a satisfaction which would render the Mid Term Review or OTS infructuous whereas the counsel for the respondent relying upon para 17 contended that the same was specifically made subject to the result of the MTR which was in fact an undertaking and which could not be completed on account of pendency of the litigation before this Court. 11 The petitioners were constrained to approach this Court by way of filing Special Civil Application No.12249 of 2017 and 12251 of 2017 for seeking relief as the time was getting elapsed. During the pendency of those petitions the extension came in the form of Notification dated 30.6.2012 in which the operative part makes an interesting reading, which reads as under: "Now, therefore, in exercise of the powers conferred by subsection (1) and (5) of section 9A of the Customs Tariff Act read with rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation being MCA No.2027 of 2017 has been filed only on 21.07.20176 and without waiting for outcome on that application in terms of condoning of the lapse of time the authority chose to proceed with fastening of final orders dated 22.7.2017. 15 Learned counsel for the petitioners have also placed on record, with the copy to the other side the elaborate table of comparison indicating that the finding in disclosure statement and the final finding clearly indicate the deliberate non advertance to greater aspects and important factors have been overlooked for the reasons best known to the authorities. The counsel invited the court's attention to the elaborate procedure and submitted that the Mid Term Review presupposes the review undertaken in the mid term and not after the term is over. In the instant case the term of the entire notification if not extended by the notification the same would have expired on 2nd July 2017 and in that view of the matter the term review could be said to have emanated from no authority at law which in other words could be said to be law of patent jurisdiction to embark upon and complete the procedure especially when the competent authority after recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l heavily relied upon the alternative remedy available in terms of the appeal and submitted that the fine facts which have been sought to be canvassed on either side may not be gone into by this Court under Article 226 of the Constitution of India and when there is availability of alternative remedy this Court may not entertain these petitions and let the petitioners be relegated to the authorities. 20 Learned counsel for respondent no.4 specifically canvassed a submission that these petitions are premature as there is an order yet to be made, may be a formal order, but the order has to be made by the Government of India and therefore at this stage rushing to this court with this kind of prayers and objecting to the time would not be in the fitness of things and the court may view this to be an act of seeking urgent orders without there being any opportunity to other side. 21 We have heard learned counsel for the parties and perused the documents on record. We are, prima facie, of the considered view that what has been canvassed on behalf of the petitioners has substance inasmuch as prima facie we are of the clear opinion that respondent no.2 could not have continued with Mid Ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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