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Saint Gobain India Private Limited Versus Union of India, The Directorate General of Anti Dumping and Allied Duties, Tariq Glass Industries Ltd.

2017 (11) TMI 665 - MADRAS HIGH COURT

ADD - New Shipper Review - clear float glass of nominal thickness ranging from 4 mm to 12 mm - import from Saudi Arabia, UAE and Pakistan - time limitation - 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 initi .....

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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, w .....

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esult 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 referred to as a New Shipper Review, though such a term dose not find place in the ADD Rules. - The rule contemplates two types of review, the first is done after a reasonable period has lapsed, since the imposition of anti-dumping duty. This review can be on the own initiative of the Designated Authority or on re .....

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or 1A and this review is undertaken prior to the expiry of the period of 5 years from the date of imposition of anti-dumping duty and this review can be undertaken by the Designated Authority on his own initiative or upon a duly substantiated request made by or on behalf of the domestic industry. This contingency does not arise in the present case. Therefore, Rule 23 (1B) does not apply. The review under Sub-Rule (1) of Rule 23 shall be concluded within a period of 12 months from the date of in .....

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rt is fully convinced that the interpretation sought to be given by the petitioner lacks merit. - Period of investigation for the new shipper review was from 01.07.2015 to 31.03.2016, for which notification was issued on 23.09.2015 - Held that: - to state that by superimposing Rule 23(3) into Rule 22 and hold that the period of limitation will commence from 23.09.2015 and end with 22.09.2016 is a plea to be rejected. Admittedly, the Designated Authority can assess whether the new shipper rev .....

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ge 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 app .....

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17 & W.M.P.Nos.13816 & 13817 of 2017 & 15564 of 2017 & 19202 of 2017 - Dated:- 6-11-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. Jithendra Singh For Mr.Karthik Sundaram For the Respondents : Mr. G. Rajagopalan, Additional Solicitor General of India assisted by Mr.T.L.Thirumalaisamy SPCCG for RR1 & 2 Mr.R.Parthasarathy, for R3 ORDER All the three Writ Petitions have been filed by a Private Limited Company, who are engaged in the manufacture of float glass. 2.W.P.No.12950 of 2017 has b .....

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of 2017, has been filed by the petitioner, challenging the initiation notification issued by the second respondent dated 23.09.2015, by which the second respondent initiated a New Shipper Review of anti-dumping duties imposed on imports of clear float glass originating in or exported from Pakistan, Saudi Arabia and UAE as requested by the third respondent, M/s.Tariq Glass Industries Limited, under Rule 22 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on du .....

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he writ petition in W.P.No.12950 of 2017. 5. Though the petitioner had filed the first Writ Petition challenging the final findings of the second respondent dated 10.04.2017, 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 b .....

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e 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 respondent initiated anti-dumping duty investigation concerning clear float glass of nominal thickness ranging from 4 mm to 12 mm originating in or .....

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ing for a New Shipper Review, in respect of ADD imposed on imports of subject goods originating in or exported from Pakistan. The Designated Authority found that there is enough justification for initiation of the New Shipper Review investigation in accordance with Rule 22 of the ADD Rules and accordingly initiated review vide notification dated 23.09.2015 (impugned in W.P.No.14346 of 2017) and the period of investigation is for nine months from 01.07.2015 to 31.03.2016. Pending the New Shippers .....

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e third respondent/applicant with an opportunity to make their views known in writing. Copy of the notification was also forwarded to the Pakistan High Commission in New Delhi, and a copy was forwarded to the non-domestic producers in India, including the petitioner and gave them opportunity to submit their views in writing. The response in the form of exporters questionaire was filed by the third respondent. Various interested parties during the course of investigation also placed evidence befo .....

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o 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 canva .....

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take a New Shippers Review under the Act to make Rule 22 in exercise of power under Section 9A(6) of the Customs Tariff Act, 1975, as Section 9A(5) confers the power only to undertake a sunset review and not a New Shippers Review. The impugned final findings are without jurisdiction, as they have been recorded after the maximum period prescribed under Rule 17 is already over. After expiry of 12 month period from the date of initiation, the Designated Authority becomes functus officio and cannot .....

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statute has to be read into Rule 22 and by way of such interpretation Rule 23(3) read with Rule 17, is applicable to Rule 22 and the period to conclude the impugned investigation expired, after expiry of 12 months. Further, it is submitted that the Municipal Law namely, the Tariff Act And Rules made thereunder cannot be read contrary to treat the obligation specified under WTO Agreement on Anti-Dumping, wherein Article 9.5, it has been mandated that the member authorities shall promptly carry ou .....

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been duly considered while initiating or proceeding with the investigation. In support of his contention, the learned counsel placed reliance on the decision of the Delhi High Court in the case of Kalyani Steel v. UOI & others reported in 2008 224 E.L.T. 47 (Delhi). 12. The learned Additional Solicitor General appearing for respondents submitted 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 .....

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take 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 .....

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0, 11, 16, 17, 18, 19 and 20 are specifically made applicable mutatis mutandis in the cases of review under Rule 23. However, no such provision has been provided under Rule 22 and this conspicuous omission was a conscious omission on the part of the legislature not to make the aforesaid Rules applicable in view of the nature of review contemplated under Rule 22. The learned counsel referred to various cases, where the New Shipper Review investigation has exceeded 18 months and listed as many as .....

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Gujarat Ceramic Floor Tiles Mfg. Assn. & others reported in (2005) 12 SCC 454 and in Designated Authority & others v. Sandisk International Limited & others reported in (2017) SCC online (SC) 319. 15. The learned counsel for the petitioner in reply referred to the objections filed before the Designated Authority, more particularly, paragraphs 10, 11 & 12. Further, it is submitted that the decision by the Delhi High Court in H&R Johnson (supra) is an interim order and the thi .....

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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 othe .....

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ping of the said article; (ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India; (iii) a casual link, where applicable, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reason therefor and date of commencement of such retrospective levy: Provided that the Centra .....

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aid one year, [(b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic 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 involv .....

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the aricle 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 detemination inpracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigat .....

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on 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 expor .....

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Central Government may resort to provisionl assessment and may ask a guarantee from the importer if the designated authority so recommends and if such a review results in a determination of dumping in respect of such products or exporters, it may levy duty in such cases retrospectively from the date of the initiation of the reivew. 23.Review. - (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 counter .....

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drawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said anti-dumping duty is removed or varied and is therefore no longer warranted. (1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive anti-dumping 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 t .....

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s 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 .....

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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 p .....

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period of the notification beyond 5 years, this is popularly known as the 'sunset review'. Any review initiated under Sub-Rule (1) that is both under Sub-Rule 1A and 1B shall be concluded within a period of not exceeding 12 months from the date of initiation of such review. Sub-Rule (3) of Rule 23 states that the provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 shall be mutatis mutandis applicable in the case of review. 22. The petitioner s contention is that final findings .....

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ate of initiation of investigation. 23. It is the argument of the learned counsel for the petitioner that Rule 23 speaks of review and Sub-Rule (3) of Rule 23 states that Rule 17 will apply in case of review. Thus, the exercise undertaken by the Designated Authority in the instant case had to be necessarily concluded and finding should have been rendered within 12 months from the date of initiation, that is, not later than 22.09.2016. Even assuming, the Central Government has extended time, whic .....

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ch 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 re .....

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on request by any interesting party, who submits positive information substantiating the need for such review. The third respondent, who sought for review under Rule 22 is not an interested party, in respect of the period of investigation, which led to the issuance of the notification, dated 11.12.2014, the said period being 01.10.2011 to 31.12.2012. Therefore, Rule 23(1A) is not applicable to the present case. Rule 23 (1B) is a review to be undertaken notwithstanding anything contained in Sub- .....

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of initiation. Thus, both in the cases of mid-term review and sunset review, (as popularly known in the industry), the time limit is 12 months. While undertaking such review, the other Rules enumerated in Sub-Rule (3) of Rule 23 would apply. Thus, Rule 22 and Rule 23 operate in different spheres and well defined compartments and the plea that subject Rule 23(3) read with Rule 17 should be superimposed in Rule 22 to fix a time limit amounts to re-writing the Rule, which is impermissible. Thus, t .....

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tion will commence from 23.09.2015 and end with 22.09.2016 is a plea to be rejected. Admittedly, the Designated Authority can assess whether the new shipper review 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 .....

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aised 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 setting aside the order of the High Court held that the reason for entertaining the writ petition cannot be sustained and if such writ petit .....

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Hon'ble Supreme Court and by applying the said desicion, the petitioner has to necessarily be asked to avail alternate remedy available to it under the Customs Tariff Act. 27. In a recent decision in the case of Sandisk International Limited (supra) 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 observ .....

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World Trade Organisation does not in any manner advance the case of the petitioner, as the reply given by India before the WTO is that the term periodical reviews (as appearing in Rule 22) implies accelarated review. Thus, it is clear that there are no time lines prescribed for a review undertaken under Rule 22 and going by the dates and events, it is seen that the initiation notification is dated 23.09.2015, period of investigation is from 01.07.2015 to 31.03.2016. After the investigation was .....

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erested 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 .....

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