TMI Blog2017 (11) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... e 22 of the ADD Rules. In terms of Sub-Rule (1) of Rule 22, if a product is subject to anti-dumping duties, the Designated Authority shall carryout the periodical review for the purpose of determining individual margins of dumping for any exporters or producers in the exporter country in question, who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any of the exporters or producers in the exporting country, who are subject to the anti-dumping duties on the products - Sub-Rule (2) of Rule 22 places an embargo on the Central Government not to levy anti-dumping duties under Sub-Section (1) of Section 9A of the Customs Tariff Act, during the period of review under Rule 22(1). Proviso under Rule 22(2) provides that the Central Government may resort to provisional assessment and may ask guarantee from the importer to safeguard the interest of the revenue. The impugned notification dated 10.04.2017, is a result of the review undertaken in terms of Rule 22. It appears that this review being sought for by a producer in a foreign country, who has not exported his product into India, is ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation is over for the fixed period of investigation, which came to an end on 31.03.2016. Obviously the investigation report could not have been submitted on the close of 31.03.2016. Thus, the contention raised by the petitioner is wholly devoid of merits. In a recent decision in the case of Sandisk International Limited [2017 (2) TMI 924 - SUPREME COURT] filed by the Designated Authority, challenge was against the judgment and order of the Delhi High Court interferring with the final findings of the Designated Authority. On going through the facts of the case, the Hon'ble Supreme Court observed that the High Court was not justified in exercising its writ jurisdiction and in setting aside the final findings of the Designated Authority and the High Court should have asked the writ petitioner to await the issuance of final notification under Rule 18 and to challenge the same before the appropriate forum under Section 9C of the Customs Tariff Act. The New Shippers Review initiated vide notification, dated 23.09.2015, culminating in the final findings dated 10.04.2017, is not barred by time - In the absence of any time limit fixed in Rule 22, a review undertaken under Rule 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .04.2017, and the corrigendum dated 12.04.2017, by subsequent writ petition in W.P.No.14346 of 2017, the petitioner has questioned the very initiation of the proceedings by the second respondent. Thus, if the initiation is held to be bad in law, all the consequential proceedings that is the final finding and the notification issued by the Government of India have to be necessarily be set aside. Therefore, the Court proceeds to consider the submissions of the learned counsels as all of them had advanced arguments on the jurisdiction of the second respondent to initiate the New Shippers Review. 6.The learned Senior Counsel appearing for the petitioner had submitted that at this stage the merits of the matter need not be gone into and it would suffice if this Court hears the petitioner on the question of the jurisdiction of the second respondent to initiate proceedings, based on the request of the third respondent, the petitioner would be able to convince the Court, that the entire proceedings are liable to be set aside for lack of jurisdiction. 7. The facts, which are necessary for the disposal of these Writ Petitions, are as follows:- The Designated Authority/the second res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and the data was examined. 10. One of the contentions raised by the domestic industry before the Designated Authority was that the Designated Authority has no jurisdiction in the present matter due to lapse of time, as maximum period available to the Designated Authority to conclude the investigation is 18 months in terms of Rule 17 and the same having expired, the initiation itself is bad in law. This contention was not accepted by the Designated Authority and the final findings were rendered vide order dated 10.04.2017 (impugned in W.P.No.12950 of 2017). 11. Mr.Jithendra Singh, learned counsel assisted by Mr. Karthik Sundaran, learned counsel for the petitioner prefaced his submissions by contending that the petitioner seeks to canvass the jurisdiction of the Designated Authority in initiating the proceedings and the final findings rendered and the consequential notification issued by the Government of India as being devoid of jurisdiction. It is further submitted that the petitioner has an excellent case on merits, but at this juncture, the petitioner does not propose to canvass the same in a Writ Petition and restrict the contentions with regard to the jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the limitation will not apply to a proceedings under Rule 23 and Section 9A of the Customs Tariff Act does not speak of any limitation and in the present writ petition, the petitioner has challenged the final finding, which has been accepted by the Department and notification dated 16.06.2017 has been issued, over which if the petitioner is aggrieved, he can prefer an appeal. 13. Further, it is submitted that merely because Rule 18 and other Rules have been referred to in the notification, dated 16.06.2017, it cannot render the impugned notification as bad in law and mere quoting of the wrong provision, can at best be treated as a mistake and will not vitiate the notification. Further, it is submitted that the petitioner having participated in the proceedings before the Designated Authority, he is not entitled to maintain the present writ petition and the petitioner cannot seek for re-writing Rule 22. 14. The learned counsel appearing for the third respondent submitted that the limitation imposed in Rule 23 cannot be imposed in Rule 22, as there is no provision similar to Sub-Rule 3 of Rule 23 in Rule 22 and Rule 22 is a New Shipper Review and no time limit is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) whether the New Shipper Review initiated under Rule 22 of the ADD Rules is required to be completed within a period of 12 months from the date of initiation, failing which the same will lapse or in 18 months if extension is granted for a further period of 6 months; iii) whether the procedures on time limits for carrying out the New Shipper Review should be in consonance with the time limit prescribed under Rule 23(3) read with Rule 17 of the ADD Rules; iv) whether the present Writ Petitions are maintainable before this Court; v) to what other remedy, the petitioner is entitled to. 18. The Rules, which are relevant for the purpose of this case, are Rules 17, 22 and 23, which are quoted herein below: Rule 17:- Final Findings.-(1) The designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding- (a) as to,- (i) the export price, normal value and the margin of dumping of the said article; (ii) whether import of the said article into India, in the case of imports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the country in question which can reasonably be investigated, and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned: Provided further that the designated authority shall, determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. 22.Margin of dumping, for exporters not originally investigated. - (1) If a product is subject to anti-dumping duties, the designated authority shall carry out a periodical review for the purpose of determining individual margins of dumping for any exporters or producers in the exporting country in question who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The provisions of rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 shall be mutatis mutandis applicabe in the case of review. 19. At the instance of the third respondent, the Designated Authority initiated New Shipper Review Investigation pursuant to notification dated 23.09.2015. This review was initiated invoking the power under Rule 22 of the ADD Rules. In terms of Sub-Rule (1) of Rule 22, if a product is subject to anti-dumping duties, the Designated Authority shall carryout the periodical review for the purpose of determining individual margins of dumping for any exporters or producers in the exporter country in question, who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any of the exporters or producers in the exporting country, who are subject to the anti-dumping duties on the products. 20. Sub-Rule (2) of Rule 22 places an embargo on the Central Government not to levy anti-dumping duties under Sub-Section (1) of Section 9A of the Customs Tariff Act, during the period of review under Rule 22(1). Proviso under Rule 22(2) provides that the Central Government may re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 and the final finding rendered on 10.04.2017, is without jurisdiction. 24. In my considered view, the submission is wholly misconceived. A plain reading of the scheme of the Rules clearly shows that there is no overlapping between Rule 22 and Rule 23. Rule 22 deals with periodic review at the instance of any exporter or producer in the exporting country. Such an application for review under Rule 22 is maintainable only if such an exporter or producer in the exporting country satisfies two conditions, namely, he should not have exported the product to India, during the period of investigation and the exporters or producers show that they are not related to any of the exporters or producers in the exporting country, who are subject to anti-dumping duties on the product. However, the review under Rule 23 is distinct and different. Sub-Rule (1) of Rule 23 states that the anti-dumping duty imposed under Rule 9A shall remain in force to the extent necessary, to counteract dumping, which is causing injury. The question would be how long the anti-dumping duty should be continued to be imposed, as the purpose of imposing such anti-dumping duty is to counteract dumping, which is causin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is warranted for continued imposition of duty or reduction thereof, only after the investigation is over for the fixed period of investigation, which came to an end on 31.03.2016. Obviously the investigation report could not have been submitted on the close of 31.03.2016. Thus, the contention raised by the petitioner is wholly devoid of merits. 26. In NITCO Tiles Ltd (supra), an appeal was preferred from an interim order passed by the High Court of Gujarat on a writ petition filed by Gujarat Ceramics challenging final findings of the Designated Authority on new shipper reivew. Subsequent to the filing of the writ petition, final findings was notified by the Central Government and the writ petition was amended and the subsequent notification was also challenged. The High Court refused to accede to the preliminary objections raised by the Union of India that Gujarat Ceramics should be relegated to the alternate remedy available to it under the Customs Tariff Act. The writ petition was entertained by the High Court, as it opined that the writ petition raised is not only important, but also sensitive affecting the people of the country at large. The Hon'ble Supreme Court while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the evidence presented by the various interested parties were provided for inspection by the interested parties. Personal hearing was granted on 17.09.2016 and 02.11.2016. Further, information was sought for from the applicant and other interested parties to the extent deemed necessary. In accordance with Rule 16, the Designated Authority informed all the interested parties of the essential facts under consideration, which form the basis for its decision and this was required to be done before giving its final finding and this disclosure of information was made on 27.03.2017. Then, the confidentiality claims of various interested parties in respect of data submitted by them were examined and the final findings were issued on 10.04.2017. Thus, the procedure adopted by the Designated Authority is undoubtedly an accelarated review and suffers from no error. 29. In view of the above reasons, questions framed are answered in the following terms:- (i) The New Shippers Review initiated vide notification, dated 23.09.2015, culminating in the final findings dated 10.04.2017, is not barred by time. (ii) In the absence of any time limit fixed in Rule 22, a review undertaken unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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