TMI Blog2018 (6) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Anti-Dumping Duty is in existence. No such application is to be entertained by the Designated Authority if it is filed in less than 90 days of expiry of the levy. The reasons and the grounds for sympathetic consideration staked in the respondents’ affidavit cannot be a ground for extension of the time schedules, in the realm of international trade regime. The transparency that envisaged the statute must be respected. The Act, the Rules and the Implementing Agreement sanction a legal regime for protective measures but not for protectionism. The N/N. 17/2013 issued 60 days after the expiry of the levy of Anti-Dumping Duty under the first five year period, would be non-est because it sought to extend a levy which had lapsed on 04.05.2013. The second proviso to section 9A(5) of the Act is an enabling provision granting the Central Government the authority to continue Anti-Dumping Duty pending the outcome of the Sunset Review for a further period not exceeding one year - In the present case, the original levy came to an end on 04.05.2013. The levy had a limited life and unless fresh life was infused in it before its predetermined expiry date, it could not be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 17/2013 retrospectively revived the Anti-Dumping Duty with effect from 05.05.2013 and extended it till 04.05.2014. The Sunset Review concluded with the declaration of the Final Findings on 29.04.2014. According to the petitioners, since the Final Findings were published in the Official Gazette only on 28.07.2014, the latter date would be reckoned as its notified date. The Anti-Dumping Duty levied during the Sunset Review period ended on 04.05.2014. By Customs Notification no. 35/2014 dated 24.07.2014, the Government of India re-imposed the Anti-Dumping Duty for another term of five years. There was a gap of 80 days or a levy-free period between the expiry of Anti-Dumping Duty which was applicable during the Sunset Review period, and a fresh levy as a result of Final Findings. The petitioner has challenged: i) the extension of Anti-Dumping Duty for the one year pending the Sunset Review, as well as ii) for the five years pursuant to the Sunset Review determination. 2. The petitioners contend that in view of the decision of this Court in Kumho Petrochemicals Co. Ltd. vs Union of India 2014 (306) ELT 3 (Del) the notification for extension of Anti-Dumping Duty for anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The designated authority shall, from time to time, review the need for the continued imposition of the anti-dumping duty and shall, if it is satisfied on the basis of information received by it that there is no justification for the continued imposition of such duty recommend to the Central Government for its withdrawal. (2) Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review. (3) 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..... 5. What is to be seen from the above is that a Sunset Review has to be concluded within one year from the date of its initiation. Under second proviso of section 9A(5) of the Act, the levy of Anti-Dumping Duty can be allowed to continue to remain in force for a period not exceeding one year, pending the outcome of the Sunset Review. The petitioners contend that on the outer limit, the Anti-Dumping Duty can be for a period of six years i.e. the original five years plus one more year, provided the Sunset Review is initiated during the period of initial five years and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. In such cases, the power under the second proviso to Section 9A(5), after expiry of the date of the original notification, is unavailable. The notification in the present case states that: 3. Notwithstanding anything contained in paragraph 2, this notification shall remain in force upto and inclusive of the 1st day of January, 2015, with respect to anti-dumping duty on Acrylonitrile Butadiene Rubber originating in, or exported from Korea RP, unless revoked earlier . Neither does Section 9A (1) nor Section 9A (5) permit the extension of anti-dumping duty once the main period of five years lapses, as held earlier. The Central Government is not arguing that it had the benefit of Section 21 of the General Clauses Act- for the simple reason that extension or amendment of an earlier notification can be only after following the procedure adopted while issuing the main notification. In the present case, the amendment is retrospective, as it were, and made effective from 2009. It was in fact made after the lapse of the first period... . 6. The petitioners argue that Customs Notification No. 17/2013 purporting to extend the levy of Anti-Dumping Duty retrospectively from 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When the time expires, the person from whose possession the goods were seized, gets the right for the return of the goods. The extension can only be before that right accrues... 9. In view of the aforesaid, it is argued that the Customs Notification No. 17/2013 should be treated as non-est, in the face of the record, and should be set aside because it sought to extend a duty which did not exist in the first place and otherwise sought to revive one, which is not permissible under section 9A(5) of the Act. The petitioners relied upon the judgment in Nazir Ahmed vs King Emperor AIR 1936 PC 253, where the Privy Council held that: where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all . It is argued that once the levy of duty under Notification no. 17/2013 becomes non-est, the subsequent levy, purportedly imposed after 80 days of completion of the Sunset Review period, too would be without any authority of law, since that too did not have the continuity between the original levy with the extended levy under the Sunset Review and the purported further levy for five years in terms of the Final Findings in the Sunset Review. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustry, to be extended such protection. Rule 23(1B) requires the Designated Authority to consider the petition received for review and extension of Anti-Dumping Duty within a reasonable period of time prior to the expiry of that period. It is argued that such a reasonable period is for consideration of the application and process the same for the Sunset Review. The period has been prescribed through Trade Notice No. 2/2011 dated 06.06.2011 which stipulates that the Sunset Review should be filed 90 days prior to the date of expiry of the Anti- Dumping Duty. It is argued that the Domestic Industry had sought initiation of Sunset Review in January 2013 with POI of October, 2011 to September, 2012. Subsequently, on 09.04.2013 the applicant had filed a revised application with POI as January, 2012 to December, 2012; therefore, the respondent no.1 felt that the application was filed within 90 days before expiry of the Anti-Dumping Duty on 04.05.2013. 12. The respondents refer to their own decisions in which the 90 day period was diluted; such as the case of duplicate iron pipes and pre-sensitised offset printing plates . It contends that: ...... The trade notice merely inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ockery of the requirement to adhere to the timelines, which is an overriding feature of the Anti-Dumping Duty regime. The Sunset Review is not simply an application by the Domestic Industry seeking continuance of the levy for a further period of five years. It is a petition to be supported by corroborative data showing the dynamics of trade of the product concerned vis- -vis, local production, imports of goods, demand, supply, size of the industry, its projected growth, profitability, injury etc, to prove that the continuance of the Anti-Dumping Duty would be necessary. Such application, complete in all respects is to be filed at least 90 days before the expiry of the levy. The 90 days are meant basically for the Designated Authority to assess the data, to conclude and form a prima facie view as to whether continuance of the duty would be necessary. If such an opinion is formed, and the Sunset Review is initiated, then the duty is extendable for another period of only 12 months from the date on which the Anti-Dumping Duty is scheduled to come to an end. The Sunset Review is an extensive exercise seeking data from all parties concerned and verification of the same and grant of heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16. The questions that arise for determination are: (i) whether with the initiation of Sunset Review before expiry of the five year levy, there is an automatic extension of Anti-Dumping Duty for the Sunset Review period; (ii) would a separate notification be required extending the levy of Anti-Dumping Duty before expiry of the original five year period, and iii) would a notification of levy of anti-dumping duty for another five years after the expiry of the Sunset-Review Period be valid? 17. Trade Notice 2/2011 issued by the respondents reads as under: .. Trade Notice No.2/2011 1. Attention of the Trade and Industry is invited to Section 9A of the Customs Tariff Act, 1975 as amended and to Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 framed thereunder, as amended. 2. In the above connection, it is informed that vide Notification No. 15/2011-Customs (N.T) dated 1st March, 2011 read with the corrigendum dated 6th April, 2011 the sub-rule (1) of Rule 23 has been substituted by the following:- (I) Any anti-dumping duty imposed under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to check its deficiencies and errors, and also accord reasonable time within which time the errors can be cured. Upon receipt of the application, it is to be examined in 15 days and deficiencies, if any, are to be removed in five working days from date of such communication to the applicant. If, the petition is found in order, the Sunset Review initiation or its rejection is to be communicated within 45 days. It is only in cases of administrative exigencies, and not because of compulsions of the petitioners or any other party, that the timelines can be stretched. In the present case, the application was effectively filed on 09.04.2013 about 28 days before expiry of the Anti-Dumping Duty. The same could not have been entertained. It is not as if the Sunset Review was initiated by the Designated Authority on his own initiative. If that were so, then the 90 days duration would not strictly apply. But since it was on a petition by the Domestic Industry, there could be no concession in the timelines, least of all a sympathetic concession. The reasons and the grounds for sympathetic consideration staked in the respondents affidavit cannot be a ground for extension of the time schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly an enabling provision and, therefore, power vested in the Central Government under the said proviso has to be specifically exercised, without which the anti-dumping duty cannot continue to remain in force with the lapse of original notification. 31) After giving due consideration to the arguments advanced by the learned counsel for the parties, we are inclined to agree with the High Court that proviso to sub-section (5) of Section 9A of the Act is an enabling provision. 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 review is there, as mentioned above, and the Central Government may extend the period if after undertaking the review it forms an opinion that continuation of such an anti-dumping duty is necessary in public interest. When such a notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment, there is an automatic continuation. The learned counsel for respondent rightfully pointed out that the legislature has consciously used the expression may and shall at different places in the same Section, i.e. Section 9A of the Act. In such a scenario, it has to be presumed that different expressions were consciously chosen by the Legislature to be used, and it clearly understood the implications thereof, therefore, when the word may is used in the same Section in contradistinction to the word shall at other places in that very Section, it is difficult to interpret the word may as shall . Therefore, it is difficult to read the word may as shall . Our conclusion gets strengthened when we keep in mind following additional factors: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed...... 20. Applying the said principle to the facts of the present case, it is seen that the Notification no. 17/2013 issued 60 days after the expiry of the levy of Anti-Dumping Duty under the first five year period, would be non-est because it sought to extend a levy which had lapsed on 04.05.2013. The second proviso to section 9A(5) of the Act is an enabling provision granting the Central Government the authority to continue Anti-Dumping Duty pending the outcome of the Sunset Review for a further period not exceeding one year. The essential requirements for such continuation are: (i) the Sunset Review ought to have been initiated before the expiry of the five year period of levy of Anti-Dumping Duty; (ii) the inquiry has not concluded within the said period; (iii) a prima facie view is formed by the Government that continuance of the Anti-Dumping Duty would be necessary, and (iv) such extended period would not exceed one year from the date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is exposed to the dynamic forces and full impact of unrestrained international trade. The nature and extent of the injury from dumped goods to the Domestic Industry, would be different and indeed to a greater degree in an unprotected regime vis- -vis a regime of Anti-Dumping Duty levy. Such levy is imposed to the extent that it offsets the injury. The assessment in a Sunset Review of a market condition is under a protected regime. The moment the protection ends and free trade is permissible, the impact of free trade and the injury to the Domestic Industry would be of a different degree. There was cessation of levy for 60 days from 05.05.2013 and for 80 days from 05.05.2014. The Domestic Industry would subsequently have been subjected to the world of unhindered international trade without protection. Therefore, the nature of injury suffered in this period would have to be assessed for the correct levy of Anti-Dumping Duty. The assessment of injury in the protected environment of Sunset Review would not reflect true nature of injury as may have been suffered by the Domestic Industry when the regime of levy was non-existent for 60 days and 80 days as mentioned above. Assuming that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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