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Kesoram Rayon, Gujarat Alkalies & Chemicals Ltd., Grasim Industries Ltd., Techfab India Industries Ltd., Strata Geosystems (India) Pvt. Ltd., VVF (India) Limited, Strata Geosystems (India) Pvt. Ltd. & Anr., Aarti Drugs Ltd., Versus The Designated Authority & Ors.

2017 (11) TMI 624 - DELHI HIGH COURT

ADD - Initiation of Sunset Review - continuation of the notification issued by the Central Government of the anti-dumping duty - imports of Cellophane Transparent Film (CTF) - import from China - extension of the imposition of the ADD during the pendency of the SSR in terms of the second proviso to Section 9A (5) of the CTA - The case of the Petitioners before the DA was that the very fact that there were no known imports of the subject good from Israel while the ADD notification was in force in .....

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initiation of the SSR for the ultimate purpose of continuing the ADD. Rule 23 (1A) further requires such party to submit “positive information substantiating the need for such review” and upon such review, the DA shall recommend to the Central Government the withdrawal of the ADD where it comes to a conclusion that injury to the domestic industry “is not likely to continue or recur if the said ADD is removed or varied and is, therefore, no longer warranted.” This is an instance where the DA dec .....

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on. As already noticed, in Rule 23 (3) of the ADD Rules, Rule 6 will mutatis mutandis apply to an SSR. On this interpretation, the Court is therefore inclined to agree with the learned counsel for the Respondents that it is indeed a two-stage process where the DA has to first be satisfied that it requires to initiate an SSR and after it so decides then it proceeds to issue a public notice and then the entire procedure as envisaged in Rules 6 to 11 and 16 to 20 would then apply - The Court is, th .....

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SSR had to be initiated, whether the DA is justified in not issuing a notification extending the ADD or the SD, as the case may be? - Held that: - Merely because it is possible to take another view based on the same material which was placed before the DA does not mean that the Court will interfere with the ultimate decision reached by the DA. It is trite that while the scope of a judicial review will extend to examining the process of the decision-making in order to ensure that it is in conform .....

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ely the public interest and the purposes and objects for which the ADD provisions have been introduced in the CTA that have to govern the decision-making exercise, the Court would not like to interfere with such a decision arrived at by the DA unless it is shown to be utterly perverse and shocking to the judicial conscience. - From the Court’s point of view, if the Court failed to take a decision one way or the other on whether the SSR should be initiated, then precious time would be lost as .....

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mpleted much before the expiry of the initial ADD notification. How that should be done has to be left to the authorities to determine and perhaps that would require a further refining of the existing ADD Rules and Safeguard Rules. The Court, however, would not like to opine any further on this aspect. - Extension of notification imposing ADD - Held that: - considering the question of extending the notification imposing the ADD is not an easy task to perform at the interim stage with all the .....

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continued - having had the benefit of the reports of the DA, the Court is now satisfied that the DA was not in error in declining to initiate the SSR. Consequently, regardless of whatever stage the SSR has reached, it will have to now be terminated by virtue of the Court not agreeing with any of the Petitioners in these cases. Likewise, the Court’s interim order by which the ADD was asked to be continued will also hereby stand terminated. The consequential refunds would be made available to the .....

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iya, Advocates. Respondents Through: Mr. Kirtiman Singh, CGSC, with Waize Ali Noor, Advocate. Mr. Jasmeet Singh, CGSC with Mr. Srivats Kaushal, Advocate. Mr. Dev P. Bhardwaj, CGSC with Mr. Satya Prakash Singh, Advocates. Mr. Neeraj Jain, Advocate. Mr. Sanjeev Narula, CGSC with Ms. Anumita Chandra, Advocate. W.P.(C) 1847/2017 & C.M.No.8092/2017 (stay), C.M.No. 24787/2017 (amendment), W.P.(C) 5088/2017 & C.M.No.21799/2017 (stay), W.P.(C) 5089/2017 & C.M.No.21800/2017 (stay), W.P.(C) 50 .....

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a question regarding the continuation of the notification issued by the Central Government of the anti-dumping duty ( ADD ), pending the conclusion of the SSR. There are ten writ petitions in all. 2. Six of the writ petitions, i.e. W.P.(C) Nos. 146 of 2017, 147 of 2017, 247 of 2017, 640 of 2017, 641 of 2017 and 7464 of 2017 question the decision of the DA not to initiate SSR and consequently, not extend the period for which the ADD would be enforced. Three of the writ petitions, i.e. W.P. (C) No .....

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ram Rayon ( KR ), a unit of Cygnet Industries Limited (CIL) is the Petitioner in W.P. (C) Nos. 146 and 5095 of 2017. CIL is a wholly-owned subsidiary of Kesoram Industries Limited ( KIL ) and has its registered office in Kolkata. 5. In the year 2005, KR made an application for initiation of anti-dumping investigation with regard to imports of Cellophane Transparent Film ( CTF ) originating in or exported from China PR. In relation to CTF, KR is the domestic industry. Pursuant to the above applic .....

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read with Rule 23 of the ADD Rules before the DA seeking initiation of SSR. The DA issued a public notice to review the need for continued imposition of ADD and to examine whether the cessation of ADD is likely to lead to continuation or recurrence of dumping and injury. 7. On 7th February 2011, the DA issued Notification No. 05/2011-Cus amending Notification No. 94/2006-Cus, extending the imposition of ADD for the period during which the investigation in terms of Section 9A (5) of the CTA rema .....

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e DA sought substantiation on the following aspects and required KR to attend an oral hearing on 15th December 2016: i. the imports are increasing even though ADD is in place; ii. the demand for the product was falling along with sales; and iii. the financial parameters, including profits, appear to be adverse. 9. KR maintains that by a reply dated 22nd December 2016 it addressed all the concerns raised by the DA and further explained that the likelihood of dumping and injury on account of withd .....

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ay and issue notifications in that regard with the stipulation that the proceedings would be subject to the final outcome of the writ petition. 12. Thereafter, KR sought an extension of the imposition of the ADD during the pendency of the SSR in terms of the second proviso to Section 9A (5) of the CTA. The DA declined to extend the ADD. This led to filing by KR of the second writ petition i.e. W.P.(C) 5095 of 2017 seeking a mandamus to the Respondents to extend the ADD and claiming that irrepara .....

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Taiwan. 14. During 2011, GACL, on behalf of the domestic industry, sought initiation of an anti-dumping investigation with regard to imports of Phosphoric Acid of all grades and all concentrations (excluding agriculture/fertilizer grade) ( subject goods ) originating in or exported from Israel and Taiwan (subject country). The anti-dumping investigation was initiated by the DA on 4th February 2011. A preliminary finding was issued by the DA on 25th October 2011, recommending provisional ADD on .....

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, imposing definitive ADD for a period of five years from the date of provisional duty, i.e. up to 12th January 2017. 15. Towards the end of the fifth year, on 10th October 2016, GACL along with GIL filed a duly substantiated application on behalf of the domestic industry under Section 9A (5) of the CTA read with Rule 23 of the ADD Rules before the DA regarding initiation of SSR. On 18th November 2016, the DA issued a deficiency letter, calling for certain clarifications. A detailed reply was fi .....

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y. Further, it was argued that what was to be determined during the course of the SSR was the likelihood of dumping and injury recurring in the event of cessation of the ADD. It was submitted that dumping from Taiwan remained substantial and the surplus capacity of Israeli industry in the subject good suggested a strong likelihood of dumping resuming upon cessation of the ADD. The case made out by the Petitioners in this writ petition is along similar lines. 17. On 2nd January 2017, by way of th .....

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se, it cannot be ascertained whether the same grades are being imported to fill the demand-supply gap. 18. The DA s refusal to initiate SSR with respect to PA upon an application made under Section 9A (5) of the CTA prompted the present petitions, i.e. W.P.(C) Nos. 147 of 2017 and 247 of 2017. On 11th January 2017, this Court directed that SSR be initiated in the case of the Petitioners and, pursuant to said direction, Respondent No. 2 initiated the same by way of its notification dated 12th Jan .....

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subject goods are Geogrids/Geostrips/Geostraps made of Polyester or Glass Fibre in all its forms originating in or exported from China PR. Both petitions seek the quashing of the letter dated 20th January 2017 issued by the DA expressing its decision not to initiate SSR. 20. The facts as far these writ petitions are concerned are that, in 2010, a petition was filed on behalf of the domestic industry seeking initiation of anti-dumping investigation with regards to import of the subject goods orig .....

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on the ground that there is a likelihood of continuation or recurrence of dumping and injury. On 20th January 2017, by way of the impugned letter, the DA rejected the request for initiation of SSR on the ground that as per the import data, there are no imports of the subject goods during the injury period and period of investigation and therefore, there was no justification for initiation of SSR investigation. 23. Thereafter, the present petitions were filed in which this Court, by its order dat .....

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n of the DA to not initiate SSR in respect of the imports of Metronidazole originating in or exported from China PR. 26. In the year 1999, an application for initiation of anti-dumping investigation was filed by ADL and Aarey Drugs and Pharmaceutical Ltd. on behalf of the Domestic Industry. The DA initiated such investigation on 29th July 1999. Preliminary findings were issued by the DA on 21st February 2000, recommending provisional ADD. On that basis, the Central Government issued notification .....

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A read with Rule 23 of the ADD Rules asking the DA to initiate SSR. On 5th April 2006, the DA issued its Final Findings, recommending the imposition of definitive ADD. Pursuant to the recommendation made by the DA, the Central Government issued notification No. 61/2006-Cus levying the definitive ADD for a period of five years till 14th June 2011. 29. On 30th May 2011, the 2nd SSR was initiated by the DA, on the basis of the application filed by ADL along with ULL. The Final Finding was issued on .....

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2017, addressed to ADL. On 18th August 2017, the DA granted an opportunity to ADL to justify why the investigations should be initiated. The ADL provided such clarification. However, by the impugned letter dated 22nd August 2017, the DA disagreed with the stand of ADL and declined to initiate SSR. 31.1 The DA, after presenting a tabular analysis of domestic selling price and cost of production, returns earned by the domestic industry and the sales value of the domestic industry, came to the fol .....

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g capital has increased manifold. (...) Sales value has increased by 60% compared to the base year. Export by M/s Aarti has increased by more than three times to the world. 31.2 Furthermore, after undertaking a detailed profit/loss analysis, the DA states: The above table shows that there is all round improvement of the domestic industry. DGCIS imports data also shows that there is no injury to the domestic industry even after secession of anti-dumping duty. It is evident from the above analysis .....

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analysis of Chinese exporters capacity, it is well known that China is exporting to the whole world and that they are inherently export oriented. Their installed capacities aren t targeting India only. Therefore, the installed capacity in China is NO indicator of their available capacity to export to India. The steadily declining Chonese exports to India over the past few years with same amount of ADD duty in place can be seen as an indicator of their declining interest in India. Similarly, the .....

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2. The issue raised in the present petition, which is a challenge the decision of the Designated Authority ( DA ) declining to initiate a Sun Set Review ( SSR ), is already being considered by this Court in W.P. (C) No. 146/2017 and batch. In that case, on 11th January 2017, by way of an interim direction, the Court had directed the Respondents to initiate SSR in both the Petitioner s cases in the course of the day as the period of the original Anti-Dumping Duty (ADD) notification was expiring .....

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ot 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 ( .....

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gust 2012 and which expires today, i.e. August 2017, should be continued as a consequence of this Court having directed the Respondents to initiate the SSR. 4. In the impugned order dated 22nd August 2017, the DA has, after examining the Petitioner's application under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 ('Anti-Dumping Rules'), observed prima facie as under: (a) the subject g .....

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nclude that there was a likelihood of injury recommencing if the existing Anti-dumping duty is allowed to lapse. 5. The DA inter alia concluded that: (i) There does not exist any significant rate of increase of dumped imports into India indicating the likelihood of substantially increased importation (ii) There is scant evidence of substantial increase in the capacity of the exporter indicating the likelihood of substantially increased dumped exports to the Indian market, taking into account the .....

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ms Tariff Act, 1975 ('CTA'), where the SSR is initiated before the expiry of the period of five years of the ADD being in force and such SSR has not come to a conclusion before such expiry, the ADD shall be deemed to remain in force pending the outcome of such a review for a further period not exceeding one year . He places considerable reliance on the decision of the Supreme Court in Union of India v. Kumho Petrochemicals Company Limited 2017 (351) ELT 65 (SC) (hereinafter Kumho) to con .....

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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 .....

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is point, Mr. Sethi has presented to the Court in a tabular form what might be the result of the cessation of ADD on the price at which Metronidazole is made available by the domestic industry. According to these statistics, there will be a price undercutting to an extent of ₹ 71.73 per g. if the ADD were cease to operate. In terms of market share held by China PR in the Indian market, the data shows how during the period of inquiry with the ADD being in place, the market share of China PR .....

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Alloys Ltd. v. Designated Authority, 2008 (224) ELT 375 (Del) and urges that in order to balance the equities, this Court may direct that in the event it is ultimately found that the decision not to initiate the SSR was justified in law, then the ADD collected during the period of the SSR could be refunded to the importers of the product from China PR. He points out that on the contrary if the ADD were not to be continued, the loss to the domestic industry would be such that cannot be compensat .....

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t 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 b .....

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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 decision of the Central Government extending the validity of the imposition of the ADD. It was in those facts and circumstances that the Supreme Court had to observe as under in paras 30 and 32 of its decision as under: "30. From the scheme of Section 9A of the Act, it becomes clear that though the Notification for Anti-Dumping duty is .....

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e of sunset review also demands complete procedure to be followed, in consonance with the principles of natural justice that was followed while imposing the Anti-Dumping duty in the first instance. To put it otherwise, this exercise contemplates hearing the views of all stakeholders by giving them adequate opportunity in this behalf and thereafter arriving at a conclusion that the continuation of the anti-dumping duty is justified, otherwise injury to the domestic industry is likely to continue .....

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r, is as to whether this extension to fill the void that may be created during the pendency of the sunset review is exercised is automatic, once the decision is taken to have sunset review of the anti-dumping duty or the continuation of such an antidumping duty has to be by a proper notification. As noted above, the High Court has held that second proviso is only an enabling provision and, therefore, power vested in the Central Government under the said proviso has to be specifically exercised, .....

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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 Anti-Dumping 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 .....

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t is difficult to read the word 'may' as 'shall'. Our conclusion gets strengthened when we keep in mind following additional factors." 13. In the present case, however, the Petitioner representing the domestic industry has approached the Court prior to the actual cessation of the ADD under the original notification which is why the Court has placed the matter for hearing today itself. There is no delay in the Petitioner approaching the Court. The impugned order is dated 22nd .....

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hether it wants to continue the ADD. However, that very decision of the Central Government taken in the context of Section 9A of the CTA is undoubtedly subject to judicial review. 15. The question that then arises is 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. 16. On .....

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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. 17. The other ground, viz., that Petitioner 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 w .....

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e 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 SSR not coming to a conclusion and there being no possibility of further continuation of .....

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found that the decision of the Central Government not to initiate the SSR was correct, the ADD collected from the importers of the product from China PR during the period of the SSR can be refunded to such importers. 21. Accordingly, the Court directs that the ADD that was initiated by Notification No.40/2012 dated 31st August, 2012 will continue till the conclusion of the SSR initiated by the Central Government on the direction of this Court by the order dated 25th August, 2017. Needless to st .....

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der, the Central Government has issued notification initiating SSR and has also extended the imposition of ADD. Facts regarding VVF 35. VVF (India) Limited ( VVF ) has filed W.P. (C) 1847 of 2017. The background facts are that VVF is a major domestic producer of fatty alcohols with a carbon chain length of C8, C10, C12, C14, C16 and C18 (not including branched isomers) including single, blends and unblended (not including branched isomers) which includes blends of carbon chain lengths, C12-l4, C .....

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ct goods is free of duties of customs in India. 37. In 2013, the Domestic Industry filed a petition seeking initiation of safeguard investigations regarding the import of saturated fatty alcohols with carbon chain length of C8, C10, C12, C14 C16 or C18 (not including branched isomers) including single blends and unblended which includes the combination of carbon chain length C12-14, C12-16, C12-18, C16-18 and C14-16 excluding pure C8. The investigations were commenced by the Directorate General .....

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iry of the period of two years on 21st November 2016, VVF filed an application before the DGS for initiation of the review investigation under Section 8B of the CTA, to examine the need for continued imposition of SGD and to extend the period of levy. 40. The DGS, by its letter dated 24th January 2017, called for further information and this was provided by VVF by its letter dated 30th January 2017. Thereafter, by the impugned letter dated 21st February 2017, the DGS rejected the request as a re .....

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ountervailing duties are source specific and may vary in amounts, depending on the source. 43. In accordance with the provisions of the Safeguard Rules and the Customs Tariff (Transitional Product Specific Safeguard Duty) Rules, 2002 ( TPSSD Rules ), SGD can be imposed on any product imported into the country in such increased quantities, absolute or relative to domestic production, and under such conditions so as to cause or threaten serious injury to the domestic producers of like or directly .....

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er: Section 9A. Anti-dumping duty on dumped articles.- Where any article is exported by an exporter or producer from any country or territory (hereinafter 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 .....

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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 consumpti .....

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sentative price of the like article when exported from the exporting country or [territory to] an appropriate third country as determined in accordance with the rules made under sub-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6): Provided that in the case of import of the article from a countr .....

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lace, either by altering the description or name or composition of the article subject to such anti-dumping duty or by import of such article in an unassembled or disassembled form or by changing the country of its origin or export or in any other manner, whereby the anti-dumping duty so imposed is rendered ineffective, it may extend the anti-dumping duty to such article or an article originating in or exported from such country, as the case maybe. (2) The Central Government may, pending the det .....

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anti-dumping duty; and (b) refund shall be made of so much of the anti-dumping duty which has been collected as is in excess of the anti-dumping duty as so reduced. (2A) Notwithstanding anything contained in sub-section (1) and sub-section (2) a notification issued under sub-section (1) 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 .....

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he meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 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 injury 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 relatively shor .....

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anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as maybe specified in the notification. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. Provided t .....

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Anti-Dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. (6) The margin of dumping as referred to in sub-section (1) or 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 .....

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d 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 A .....

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l Government under clause (ii) of subsection (2), an importer proves to the satisfaction of the Central Government that he has paid anti-dumping duty imposed under sub-section (1) of section 9A on any article. In excess of the actual margin of dumping in relation to such article, the Central Government shall, as soon as may be, reduce such antidumping duty as is in excess of actual margin of dumping so determined, in relation to such article or such importer, and such importer shall be entitled .....

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y notification in the Official Gazette, make rules to- (i) provide for the manner in which and the time within which the importer may make application for the purposes of subsection (1); (ii) authorise the officer of the Central Government who shall dispose of such application on behalf of the Central Government within the time specified in such rules; and (iii) provide the manner in which the excess duty referred to in sub-section (1) shall be - (A) determined by the officer referred to in clau .....

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xpire on 12th January 2017. Rule 23 of ADD Rules 46. The procedure that had to be followed was laid out in Rule 23 of the ADD Rules which underwent a slight change by notification No. 15/2011Cus (N.T). Rule 23 (1) of the ADD Rules was substituted as under: 23 (1) Any anti-dumping duty imposed under the provision of section 9A of the Act, shall remain in force, so long as and to the extent necessary, to counteract dumping, which is causing injury. (1A) The designated authority shall review the ne .....

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ikely to continue or recur, if the said antidumping duty is removed or varied and is therefore no longer warranted. (1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive antidumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf .....

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expected to initiate a SSR investigation to review the need for continued imposition of the ADD in respect of the subject goods in accordance with Section 9A (5) of the CTA read with Rule 23 of the ADD Rules. The second proviso to Section 9A (5) envisages the contingencies where the review exercise, though initiated earlier, cannot be concluded during the currency of the ADD period specified in the notifications. 49. The question that arises is whether a combined reading of Section 9A (5) of the .....

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ehalf of the Petitioners, contests the above understanding of the Central Government. According to him, there was no warrant for a two-stage procedure. As long as the application filed is duly substantiated, the DA cannot avoid initiating the SSR in terms of Rule 23 of the ADD Rules. Without such a procedure being adopted, according to Mr. Sethi, it is not possible for the DA to come to the conclusion that the claim made by the Petitioner is not duly substantiated. 51. According to Mr. Sethi, th .....

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sis is in the exclusive possession and knowledge of the foreign exporters. Such information is not available with the DA unless called for in terms of Rule 6 of the ADD Rules. It is pointed out that if the Rules had provided for a petition conclusively establishing the likelihood of recurrence of dumping and injury, there would have been no need for an investigation or to undertake the elaborate process laid down in Rule 6. It is pointed out that the DA has completely misconstrued the expression .....

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effect on domestic prices, and would likely increase demand for further imports; and iii. Inventories of the article being investigated. iv. Dumping in third countries. v. Likely impact of the imports (in the absence of duty), on the economic parameters for the domestic industry, including production, sales, capacity utilization, etc. vi. Export orientation of the foreign producers/exporters. 53. It is pointed out that in other jurisdictions, like the European Union ( EU ), the USA, Canada, Aus .....

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the period of investigation. The exports were also being made at a price significantly below the selling price of the domestic industry. In a tabular form, the relevant statistics are sought to be presented setting out the injury margin (the difference between non-injurious price of domestic industry and landed price of imports without ADD) for imports from China which is seen to be positive and significant at 44%. The said table reads as under: S.No. Particulars UOM POI 1. Landed price without .....

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pricing and potential capacity of 19,500 MT in China with export orientation in excess of 60% is indisputable. Thus, the surplus capacity in China was ten times the demand in India. 56. On behalf of the Respondents, Mr. Kirtiman Singh and Mr. Sanjiv Narula, the learned Senior Standing Counsel, point out that in terms of Section 9A (5) read with Rule 23 it is in the discretion of the DA to decide whether an SSR should be initiated given the facts and circumstances outlined hereinbefore. If the D .....

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The decision in Kumho 57. In Kumho, the Supreme Court was called upon to interpret Section 9A of the CTA read with Rule 23 of the ADD Rules. On the facts of said case, after an SSR, a second notification dated 2nd January 2009 was issued imposing ADD on import of Acrylic Nitro Butadiene Rubber originating from Korea RP. The said ADD was to come to an end on 1st January 2014. The notification proposing the SSR was issued only on 6th January 2014. Since the above notification was issued after the .....

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do not lead to the conclusion that the intention to review and extend the antidumping duty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A (5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which the anti-dumping duty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry da .....

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that would be the relevant date and not the date on which it is made public. 18. As a result, the appeals filed by the writ petitioners in which the finding of the High Court on the aforesaid question is challenged, are dismissed as without any merits. 58. The Supreme Court in Kumho considered whether the word may used in the second proviso to Section 9A (5) had to be read as shall and whether if it was not so read, the object of the provision would be frustrated? The plea that the word may had .....

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re may be situations where the sunset review is undertaken but the review exercise is not complete before the expiry of the period of original notification. It is because of the reason that the exercise of sunset review also demands complete procedure to be followed, in consonance with the principles of natural justice that was followed while imposing the anti-dumping duty in the first instance. To put it otherwise, this exercise contemplates hearing the views of all stakeholders by giving them .....

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empowers the Central Government to continue the antidumping duty for a further period not exceeding one year, pending the outcome of such a review. The question, however, is as to whether this extension to fill the void that may be created during the pendency of the sunset review is exercised is automatic, once the decision is taken to have sunset review of the anti-dumping duty or the continuation of such an antidumping duty has to be by a proper notification. As noted above, the High Court ha .....

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rovision. That is very clear from the language of the said provision itself. Sub-section (5) of Section 9A gives maximum life of five years to the imposition of anti-dumping duty by issuing a particular notification. Of course, this can be extended by issuing fresh notification. However, the words 'unless revoked earlier' in sub-section (5) clearly indicate that the period of five years can be curtailed by revoking the imposition of anti-dumping duty earlier. Of course, provision for rev .....

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l cases anti-dumping duty shall be imposed for a full period of five years, as it can be revoked earlier. Likewise, when a review is initiated but final conclusion, is not arrived at and the period of five years "stipulated in the original notification expires in the meantime, as per second proviso the anti-dumping duty may continue to remain in force. However, it cannot be said that the duty would automatically get continued after the expiry of five years simply because review exercise is .....

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ons of Article 265 of the Constitution of India. As a fortiori, it becomes apparent that the Government is to exercise its power to issue a requisite notification. In this hue, the expression 'may' in the second proviso to sub-section (5) has to be read as enabling power which gives discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, becomes an enabling provision. 32. We are conscious of the fact that once sunset review is initiated, .....

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tion for continuing the said anti-dumping 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 .....

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bserved as under: 33. The anti-dumping duty may continue, pending the outcome of the review, for a further period not exceeding one year. Thus, maximum period of one year is prescribed for this purpose which implies that the period can be lesser as well. The Government is, thus, to necessarily form an opinion as to for how much period it wants to continue the anti-dumping duty pending outcome of such a review. Moreover, since the maximum period is one year, if the review exercise is not complete .....

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e power is exercised under second proviso and duty period extended by full one year, the review exercise could not be completed within that period. In that situation, vacuum shall still be created in the interregnum beyond the period of one year and till the review exercise is complete and fresh notification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between. (emphasis supplied) 60. In the circu .....

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anti-dumping duty. Even otherwise Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending a non-existing Notification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of .....

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terim order was passed by this Court in some of the matters on 11th January 2017. Consequently, at the time when this Court was faced with the situation where the ADD notification was going to expire on the very next date, the Court had to take a prima facie view whether there could be an interim order whereby the SSR could be asked to be initiated even before the expiry of the ADD. At that stage, the Court had not ordered automatic extension of the notification of the ADD. This led to the secon .....

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ADD notification. This was, however, made subject to the final outcome of the writ petition. 64. Now, the Court has had the benefit of the reports prepared by the DA on the basis of the applications made to it seeking initiation of the SSR. In this context, where the exercise of judicial review of the decisions of the DA are undertaken by the Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, it is necessary to delineate the scope and ambit of such power .....

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thority (2006) 4 SCC 303, the Supreme Court was concerned with a case where the domestic industry (represented by the Respondent No. 3 therein) filed an anti-dumping petition before the DA under Section 9A of the CTA stating that the import of Acrylonitrile Butadiene Rubber ( ABR ) from specified countries was causing injury to its production. After it was satisfied that such was indeed the case, the DA recommended the levy of ADD. Consequent thereto, the Central Government imposed the ADD under .....

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Supreme Court. 66.2 The Supreme Court agreed with the Respondents that the Appellant could not be permitted to raise the plea. However, since the issue was of mid-term review, the question whether all the 14 parameters mentioned in para (iv) to Annexure-2 had to mandatorily be considered, the Supreme Court observed as under: 36. Otherwise also, we are of the opinion that the scope of the review inquiry by the Designated Authority is limited to the satisfaction as to whether there is justificati .....

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tic industry. The said inquiry has to be limited to the information received with respect to change in the various parameters. The entire purpose of the review inquiry is not to see whether there is a need for imposition of anti-dumping duty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. 37. It is of vital importance to note that in the initial imposition of duty, the appellant has accepted the position that determination of injur .....

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esignated Authority based on which the a Government of India had imposed the anti-dumping duty for a period of five years. Under Section 9-A (5), the said initial imposition of anti-dumping duty is ordinarily contemplated to be continued, and remain in effect for a total period of five years, at the end of which it would be subject to Sunset Review, the possible consequence of which would be the extension of time operation of the period of anti-dumping duty for another period of five years. This .....

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es, that it is considered necessary either to withdraw or modify, appropriately the antidumping duty which has been imposed. It is, therefore, clear that unless the Designated Authority suo motu or the applicant for review is in a position to establish clearly that there has been, a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the finding given by the Designated Authority at the time of initial imposition .....

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r the Designated Authority nor the appellant had placed any material on record which could possibly displace the findings given by the Designated Authority at the stage of initial anti-dumping duty. In the absence of any new material, the Designated Authority is not required to apply fresh all particular or criteria enumerated in para (iv) of Annexure II, which had already been done at the initial stage of imposition of anti-dumping duty. There is no material on record to show that there was a c .....

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rity (2006) 10 SCC 368, the Appellant-company ( RIL ) was engaged in the business of Pure Terephthalic Acid ( PTA ) which was used for the manufacture of polyester yarn, which in turn was used for the manufacture of textiles. For the manufacture of PTA, it drew electricity partly from its own power plant and partly from the grid. The unit cost of electricity, therefore, formed a significant part of the cost of production. 67.2 RIL filed an application in October, 1998 seeking imposition of ADD o .....

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on, the DA compared the landed value of the imports and the NIP. 67.3 The Central Government, on the basis of the above final findings, imposed ADD on PTA originating from or exported from Spain at a certain rate. It declined to impose ADD on the imports from other countries. RIL filed an appeal before the CESTAT seeking enhancement of the ADD in the case of exports from Spain and imposition of ADD on exports from other countries. However, the CESTAT declined the plea and, therefore, RIL approac .....

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was required to carry out the determination of injury and computation of NIP for the domestic industry as a whole , and not in respect of any particular company or enterprise. The Court went to the definition of domestic industry under Rule 2(b) of the ADD Rules. It was held that the DA was always required to take into consideration the transfer price (market value) of the imports and not their actual cost of capital production. It was observed that, once dumping of specific goods from a countr .....

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ay have as a result of manufacture of raw material or utilities that go into production of the PUC should be ignored for determination of the NIP for the domestic industry as a whole. 67.7 Importantly, it was observed in paras 38 and 39 as under: 38. We are of the opinion that the nature of the proceedings before the DA are quasi-judicial, and it is well settled that a quasi-judicial decision, or even an administrative decision which has civil consequences, must be in accordance with the princip .....

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The determination of the recommendation of the DA and the: government notification on the basis is subject to an appeal before CESTAT. This also makes it clear that the proceedings before the DA are quasi-judicial. 67.8 In that case, it was found, on facts, that the DA had failed to provide RIL detailed costing information on the basis of which it computed the NIP and that was held to be contrary to the Rule 7 of the ADD Rules. Other decisions 68. As far as this Court is concerned, the question .....

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in Kalyani Steels Ltd. v. Revenue Secretary 2008 (224) ELT 47 (Del). The correctness of the decision of this Court in Indian Metal and Ferro Alloys Ltd. v. Designated Authority (supra) was questioned by the DA by filing a Special Leave Petition in the Supreme Court. In an order passed in Designated Authority v. Indian Metal Alloys and Ferro Ltd. (2009) 2 SCC 510, the Supreme Court was of the view that the decision in Reliance Industries v. Designated Authority (supra) requires a re-look. Howeve .....

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ely considered by the Supreme Court in Union of India v. M/s Meghmani Organics Ltd. (2016) 340 ELT 449, at a time when the issues on merits had been rendered academic. It was clarified that the decision in Reliance Industries v. Designated Authority (supra) did not run counter to the decision in Sterlite Industries (India) Ltd. v. Designated Authority 2003 (158) ELT 673 wherein it was, inter alia, held that in the garb of unclaimed confidentiality, the DA cannot shirk from its responsibility to .....

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on is really not confidential and still the party concerned does not agree to its being made public. In such a situation the information cannot be made public but has to be simply ignored and treated as non est. 71. However, as far as the present cases are concerned, none of the above issues directly arise for consideration. It must also be noted that the issues considered by this Court in Indian Metal and Ferro Alloys Ltd. v. Designated Authority (supra) was at a time when it did not have the b .....

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ould automatically get continued after the expiry of five years simply because a review exercise is initiated before the expiry of the aforesaid period. iii. No duty or tax can be imposed without the authority of law. It has to be in the form of an appropriate notification and in the absence thereof, ADD cannot be imposed. The expression may in the second proviso to Section 9A (5) gives a discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, b .....

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ollective reading of paras 31 and 32 indicates that the Supreme Court declined to interpret the word may occurring in Rule 23 (6) as shall . The two issues in the present cases 74. It is time to return to the two central issues that arise in the present cases: (i) whether the DA was justified in declining to initiate the SSR in the cases where ADD was in place and declined to initiate the investigation where the SGD was in place (as in the case of VVF India Limited); and (ii) even if it is held .....

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the DA took into account all the relevant materials and avoided materials which were not relevant to the determination. 76. As far as the first aspect of the procedure to be adopted is concerned, it is plain that the DA can initiate the SSR either on its own initiative or upon the request of an interested party. In all these cases, there was a request by the interested party, namely the Domestic Industry, for initiation of the SSR for the ultimate purpose of continuing the ADD. Rule 23 (1A) fur .....

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with the non-obstante clause that notwithstanding anything contained in sub-rule (1) or (1A), the ADD shall be effected for a period not exceeding five years from the date of its initial imposition, unless the DA comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry that the expiry of the ADD is likely to lead to continuation or recurrence of dumping and injury to the domestic indu .....

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jury . The question that arises is whether, under Rule 23 (1B), the conclusion can be reached by the DA only upon a review, i.e. a review undertaken in terms of Rules 6 to 11 and 16 to 20 of the ADD Rules, which in terms of Rule 23 (3), applies mutatis mutandis to the SSR. In other words, is it a two-stage process whereby, first the DA must be satisfied that, prima facie, some case is to be made out for the purpose of initiating the SSR by undertaking the entire process of the SSR or can it, at .....

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adopt. For this, one has to again examine the procedure that is otherwise followed during any investigation undertaken. Rule 6 sets out the principles governing the investigations. That procedure, however, envisages that the DA shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of articles, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following... .....

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ure as envisaged in Rules 6 to 11 and 16 to 20 would then apply. The Court is, therefore, unable to accept the submission put forth on behalf of the Petitioners that there is no two-staged procedure involved in this determination and that once a request for initiating an SSR is made, the DA is left with no option but to go through the entire process of following the procedure under Rules 6 to 11 and 16 to 20 and only thereafter, comes to a conclusion as to whether the ADD requires to be continue .....

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hem. The Court is, therefore, satisfied that as far as the procedure to be adopted by the DA was concerned, it cannot be said that an adequate opportunity was not granted to the Petitioners to place their respective cases before the DA. 82. In a sealed cover, the detailed report prepared by the DA was presented to the Court. From it, the Court could make out what was in fact considered by the DA. The detailed working of the NIP in each of the cases in relation to the net fixed assets, the workin .....

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t will interfere with the ultimate decision reached by the DA. It is trite that while the scope of a judicial review will extend to examining the process of the decision-making in order to ensure that it is in conformity with the ADD Rules and the general principles of natural justice, the Court will not, in exercise of its jurisdiction under Article 226 of the Constitution, sit in appeal over the decision of the DA on merits, unless the decision is shown to be either mala fide or so utterly per .....

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se and shocking to the judicial conscience. 84. In none of these cases, has the Court been persuaded by the Petitioners to hold that the DA has based its decision on wholly irrelevant considerations or that it failed to take into account the relevant materials placed before it by the Petitioners. At the risk of repetition, it must be pointed out that while it is possible that there may be more than one view possible based on the materials placed before the DA, that by itself will not be a ground .....

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le. In these cases, the DA did not arrive at its decision till the point at which only one day was left for the expiry of the previous ADD notification. That left the Petitioners with very little time and the only option was for them to approach the Court to question the decision of the DA not to initiate the SSR. From the Court s point of view, if the Court failed to take a decision one way or the other on whether the SSR should be initiated, then precious time would be lost as a result of judi .....

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