TMI Blog2018 (12) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... rate which are lesser than the rate at which the exporters normally sell the same in their own countries which is the effect of causing injury to the domestic market. Section 9 A was therefore, brought in, to maintain a level playing field and prevent dumping the goods into India while allowing the healthy competition. It is also not in dispute that Rule 22 would deal with much lesser number of exporters. Rule 23 (1-A) provides that Designated Authority shall review the need for continued imposition of Anti Dumping Duty either upon a request by interested party, who submits positive information, substantiating the need of such review or when the reasonable period of time has elapsed since the imposition of the definitive Anti Dumping Duty and upon such review, the Designated Authority has to recommend to the Central Government for its withdrawal, 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, and is not warranted. The period for conducting the review is specified as twelve months. A perusal of the above would show that the period of twelve months (not exceeding 18 months) is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/4/2017, is clearly barred by time. Even in the absence of time limit fixed in rule 22, a review undertaken under Rule 22 is required to be completed on an accelerated basis i.e., definitely before the time period prescribed in Rule 17 or Rule 23. Appeal allowed. - Writ Appeal Nos.412 to 414 of 2018 - - - Dated:- 14-11-2018 - Mr. Justice S. Manikumar And Mr. Justice Subramonium Prasad For the Appellant : Mr.P.S.Raman, Sr. Counsel And Jitender Singh for Mr.Karthik Sundaram For the Respondents : Mr.A.P.Srinivas, Mr.T.L.Thirumalaisamy COMMON JUDGMENT SUBRAMONIUM PRASAD J. Instant writ appeals are directed against the judgment dated 6/11/2017, passed in W.P.Nos.12950, 14346 and 17696 of 2017. 2. Appellants have filed these writ petitions :1) challenging initiation notification dated 23.09.2015 bearing F.No.15/16/2015-DGAD issued by respondent No.2 herein, commencing new shipper review investigations on an application filed by respondent No.3 herein. 2)The final finding dated 10.04.2017 vide notification No.15/16/2015-DGAD issued by respondent No.2 as corrected by the impugned final finding recommendation dated 12.04.2017 and 3) Anti-Dumping and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injury to the domestic market. The levy of dumping duty is a method recognized by GATT which seeks to remedy the injury and at the same time balances the right of exporters from other countries to sell their products within the country with the interest of the domestic markets. Thus the factors to constitute 'dumping', is (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry. 6. Similarly, in Reliance Industries Ltd., Vs. Designated Authority Ors {(2006) 10 SCC 368} , the Hon'ble Supreme Court, observed as under:- The result was that an industrial base was created in India after independence and this has definitely resulted in some progress. The purpose of Section 9A can, therefore, easily be seen. The purpose was that our industries which had been built up after independence with great difficulties must not be allowed to be destroyed by unfair competition of some foreign companies. Dumping is a well-known method of unfair competition which is adopted by the foreign companies. This is done by selling goods at a very low price for some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry : Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the like article by the domestic industry, and (b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding - (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic 10 industry expressing either support for or opposition, as the case may be, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted. It will also contain:- (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the article which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination. 2. The designated authority shall issue a public notice recording its preliminary findings. Rule 13:- Levy of provisional duty - The Central Government may, on the basis of the preliminary findings recorded by the designated authority, impose a provisional duty not exceeding the margin of dumping: Provided that no such duty shall be imposed before the expiry of sixty days from the date of the public notice issued by the designated authority regarding its decision to initiate investigations: Provided further that such duty shall remain in force only for a period not exceeding six months which may upon request of the exporters representing a significant percentage of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder investigation: Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using 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 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. Rule 18:- Levy of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal duty imposed, if any. Rule 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 are not related to any of the exporters or producers in the exporting country who are subject to the antidumping duties on the product. (2) The Central Government shall not levy anti-dumping duties under sub-section (1) of section 9A of the Act, on imports from such exporters or producers during the period of review as referred to in sub-rule (1) of this rule: Provided that the Central Government may resort to provisional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligible and (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like domestic product. 3.4 The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance. 3.5 It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. The 9 Under this Agreement the term injury shall, unless otherwise specified, be taken to mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to account the availability of other export markets to absorb any additional exports; (iii) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and (iv) inventories of the product being investigated. No one of these factors by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury would occur. 3.8 With respect to cases where injury is threatened by dumped imports, the application of anti-dumping measures shall be considered and decided with special care. Article 5 Initiation and Subsequent Investigation 5.1 Except as provided for in paragraph 6, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written application by or on behalf of the domestic industry. 5.2 An application under paragraph 1 shall include evidence of (a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of an examination of the degree of support for, or opposition to, the application expressed13 by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry.14 The application shall be considered to have been made by or on behalf of the domestic industry if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry. 5.5 The authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of the application for the initiation of an investigation. However, after receipt of a properly 24 documented application and before proceeding to initiate an investigation, the authorities shall notify the government of the exporting Member concerned. 5.6 If, in special circumstances, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in an anti-dumping investigation shall be given at least 30 days for reply. Due consideration should be given to any request for an extension of the 30-day period and, upon cause shown, such an extension should be granted whenever practicable. 6.1.2 Subject to the requirement to protect confidential information, evidence presented in writing by one interested party shall be made available promptly to other interested parties participating in the investigation. 6.1.3 As soon as an investigation has been initiated, the authorities shall provide the full text of the written application received under paragraph 1 of Article 5 to the known exporters16 and to the authorities of the exporting Member and shall make it available, upon request, to other interested parties involved. Due regard shall be paid to the requirement for the protection of confidential information, as provided for in paragraph 5. 6.2 Throughout the anti-dumping investigation all interested parties shall have a full opportunity for the defence of their interests. To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct. 6.6 Except in circumstances provided for in paragraph 8, the authorities shall during the course of an investigation satisfy 28 themselves as to the accuracy of the information supplied by interested parties upon which their findings are based. 6.7 In order to verify information provided or to obtain further details, the authorities may carry out investigations in the territory of other Members as required, provided they obtain the agreement of the firms concerned and notify the representatives of the government of the Member in question, and unless that Member objects to the investigation. The procedures described in Annex I shall apply to investigations carried out in the territory of other Members. Subject to the requirement to protect confidential information, the authorities shall make the results of any such investigations available, or shall provide disclosure thereof pursuant to paragraph 9, to the firms to which they pertain and may make such results available to the applicants. 6.8 In cases in which any interested party refuses access to, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porters or importers of such product; (ii) the government of the exporting Member; and (iii) a producer of the like product in the importing Member or a trade and business association a majority of the members of which produce the like product in the territory of the importing Member. This list shall not preclude Members from allowing domestic or foreign parties other than those mentioned above to be included as interested parties. 6.12 The authorities shall provide opportunities for industrial users of the product under investigation, and for representative consumer organizations in cases where the product is commonly sold at the retail level, to provide information which is relevant to the investigation regarding dumping, injury and causality. 6.13 The authorities shall take due account of any difficulties experienced by interested parties, in particular small companies, in supplying information requested, and shall provide any assistance practicable. 6.14 The procedures set out above are not intended to prevent the authorities of a Member from proceeding expeditiously with regard to initiating an investigation, reaching preliminary or final determinations, whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed on a prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping. A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty. The refund authorized should normally be made within 90 days of the above-noted decision. 9.3.3 In determining whether and to what extent a reimbursement should be made when the export price is constructed in accordance with paragraph 3 of Article 2, authorities should take account of any change in normal value, any change in costs incurred between importation and resale, and any movement in the resale price which is duly reflected in subsequent selling prices, and should calculate the export price with no deduction for the amount of anti- 33 dumping duties paid when conclusive evidence of the above is provided. 9.4 When the authorities have limited their examination in accordance with the second sentence of paragraph 10 of Article 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nti-dumping duties shall only be applied to products which enter for consumption after the time when the decision taken under paragraph 1 of Article 7 and paragraph 1 of Article 9, respectively, enters into force, subject to the exceptions set out in this Article. 10.2 Where a final determination of injury (but not of a threat thereof or of a material retardation of the establishment of an industry) is made or, in the case of a final determination of a threat of injury, where the effect of the dumped imports would, in the absence 35 of the provisional measures, have led to a determination of injury, anti-dumping duties may be levied retroactively for the period for which provisional measures, if any, have been applied. 10.3 If the definitive anti-dumping duty is higher than the provisional duty paid or payable, or the amount estimated for the purpose of the security, the difference shall not be collected. If the definitive duty is lower than the provisional duty paid or payable, or the amount estimated for the purpose of the security, the difference shall be reimbursed or the duty recalculated, as the case may be. 10.4 Except as provided in paragraph 2, where a determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -dumping duty, upon request by any 37 interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately. 11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iews. 18.7 The Annexes to this Agreement constitute an integral part thereof. 9. Facts in brief are as follows:- (i). Initiation Notification No.14/25/2012-DGAD, dated 11/4/2013, for initiation of investigation under Rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter called as ADD Rules for short) was issued by the Directorate General of Anti Dumping Allied Duties, for initiating Anti Dumping Investigation, on imports of Float Glass, exported from Pakistan, Saudi Arabia and UAE. The period of investigation was fixed from 1/10/2011 to 31/12/2012 i.e., 15 months. (ii). On the completion of investigation, Final investigation No.14/25/2012 DGAD, dated 10/10/2014, under Rule 17 of ADD Rules was issued, recommending Anti Dumping Duty, at the rate of 123.61 US Dollars per MT. The conclusion and the recommendation of the Authority are as under:- N. Conclusion 101. After examining the submissions made by the opposing interested parties and the domestic industry and issues raised therein; and considering the facts available on record, the Authority conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Review with regard to the import of Clear Gloat Glass in respect of M/s. Tariq Glass Industries Ltd. The period of investigation was fixed from 1/7/2015 to 31/3/2016 i.e., for a period of nine months. (v). A Notification bearing No.53/2015-Cus (ADD), dated 30/10/2015, was issued ordering for provisional assessment for the third respondent till completion of New Shipper Review, initiated by the authority. (vi). Investigation did not get over by March 2016. The appellant therefore, submitted various representations contending that Final Notification should not be issued, since the time limit for the New Shipper's Review was over. Representations dated 26/8/2016, 6/9/2016, 8/11/2016, 11/11/2016, 27/3/2017, 28/3/2017 and 5/4/2017 were given by the appellant. In all these representations, jurisdiction of the designated authority to continue that investigation was questioned. (vii). On 10/4/2017, the second respondent, which is the designated authority, issued the Final Notification bearing No.15/6/2015-DGAD. The authority considered the objection of the appellant regarding the time limit for the New Shipper's Review and rejected the same, observing as under:- 20. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he export market. There are only two principal 14 shareholders / owners of the Applicant Company who are private individuals. The Authority also notes that the Applicant has three affiliate companies in Pakistan and all three of them have certified that they are not engaged in the manufacturing of the PUC and are not related to producers and exporters in Pakistan, Saudi Arabia or UAE who had exported the PUC to India during the period of investigation of the original investigation. (viii). The conclusion of the Authority are as follows:- Examination by the Authority 36. The Authority notes that post-disclosure comments/submissions made by the interested parties are mostly reiterations of earlier 46 submissions, which have already been examined suitably and properly addressed in the disclosure statement or in the relevant paragraphs of the present finding and therefore for the sake of brevity all of them are not repeated hereunder. The authority further considers appropriate to address some of the issues raised by the interested parties herein below: a) With regard to the submission of the Domestic Industry regarding the pricing of Clear Float Glass of 13 mm thickness, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... typographical error in para No37 point (ii) which reads as:- (ii). The Authority, therefore, recommends the antidumping duty of USD *** per MT be imposed on imports of Clear Float Glass of nominal thickness ranging from 4 mm to 12 mm (both inclusive), the nominal thickness being as per BIS 14900:2000 falling under Chapter 70 of the Custom Tariff Act, 1975 produced and exported by M/s. Tariq Glass Industries Ltd., Pakistan. The said Notification shall now read as The Authority, therefore, recommends the antidumping duty of USD 23.54 per MT be imposed on imports of Clear Float Glass of nominal thickness ranging from 4 mm to 12 mm (both inclusive), the nominal thickness being as per BIS 14900:2000 falling under Chapter 70 of the Custom Tariff Act, 1975 produced and exported by M/s. Tariq Glass Industrial Ltd., Pakistan. 49 10. The initiation notification and Orders of the Designated Authority, dated 10/4/2017 and 12/4/2017, were the subject matters of challenge, in W.P.Nos.12950, 14396. The notification dated 16.6.17 issued by the respondent No1 was the subject matter of challenge in W.P 17696 of 2017. 11. The principle argument was that the authorities had no jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9 C of the Customs Tariff Act. 13. It is this order, which is under challenge, in the instant Writ Appeals. 14. Heard Mr.P.S.Raman, learned Senior Counsel and Mr.Jitender Singh for Mr.Karthick Sundaram for the appellant, Mr.G.Rajagopalan, learned Additional Central Government Standing Counsel, for Union of India, assisted by Mr.A.P.Srinivas and Mr.T.L.Tirumalaisamy for the second respondent. 15. The learned counsel for the appellant submitted that, a. The initiation of a New Shippers Review is governed by the provisions of Rule 22 of the ADD Rules, 1995. Rule 22 of the ADD Rules, 1995 is based on Article 9.5 of the Agreement on Implementation of Article VI of the GATT (WTO Anti Dumping Agreement). The entirety of the ADD Rules, 1995 are based on the provisions of the WTO Anti-Dumping Agreement and require to be interpreted strictly keeping in mind the provisions of the WTO Anti Dumping Agreement. 16. The learned counsel for the appellant would rely on Article 9.5 quoted supra and contend that it clearly stipulates that review shall be initiated and carried out on an accelerated basis compared to a normal duty assessment to ensure that review results in a determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 19. On the other hand, the Second respondent has in its written submission states as under:- 6. The entire scheme of Section 9 A of the Act does not contemplate any period of limitation before which the authority constituted under the ADD Rules, 1995 shall make its investigation. The power to impose duty is traceable to Section 9 A of the Customs Tariff Act, 1975 and not from the rules themselves. Therefore, the rules provide for any limitation regarding enquiry, if the said limitation applies to enquiry under Rule 22 of the ADD Rules, 1995, then it can only be regarded as directory and not mandatory in nature as rules themselves being subordinate legislation. Any rule of limitation is essentially of legislative character, part of substantive law cannot be read from subordinate legislation, and even if the subordinate legislation provides the same it could be only treated as directory and not mandatory. 8. Without prejudice to above submission, it is submitted that on the face of Rules 22 of the ADD Rules, 1995, there is no limitation contemplated less or more than what is contemplated under Rule 17 or Rule 23 of the ADD Rules, 1995. Reading any time limit into Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re only to see what the Law is and what Law ought to be. He would submit that Rule 17 and 23 prescribes the period under which investigation must be completed. There is a conscious omission of prescribing a time period in Rule 22 and therefore, one cannot read the period of limitation, to complete investigation, under Rule 22, in view of the conscious omission by the Legislature. According to the learned Additional Solicitor General, principle of Causus Omissus should not be applied when the intention of the legislature is extremely clear. Placing reliance on a judgment of the Hon'ble Supreme Court in GRAMOPHONE COMPANY OF INDIA LTD Vs. BIRENDRA BAHADUR PANDEY OTHERS {1984 (2) SCC 534}, he would contend that National Courts cannot say 'yes', if legislative particularly has said 'no' to a principle. According to him, Clause 9.5 of GATT, cannot be read as a Statute. 21. The question that arises for consideration is that while carrying out the investigation, under Rule 22 of the ADD Rules , can the authorities exceed the time limit, as provided, under Rule 17, i.e., original Notification or under Rule 23, which is a review commonly known as sunset review. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. a summary of the factors on which the allegation of injury is based e. the address to which representations by interested parties should directed and f. the time limits allowed to interested parties for making their views known. 25. Rules 9, 10, 11 and 12 deal with Investigation in the territory of other specified countries, Determination of normal value, export price and margin of dumping and Determination of injury. On conducting investigation, Rule 12 provides for Preliminary findings by the Designated Authority regarding export price, normal value, margin of dumping and in respect of imports from specified Countries. Rule 17 prescribes that the Designated Authority shall within one year from the date of initiation of an investigation, 61 determine as to whether or not the article under investigation is being dumped in India. This finding is submitted to the Central Government. The finding is regarding (i). the export price, normal value and margin of dumping; (ii). whether the import of said article into India, in the case of imports from specified countries, causes or threatens material injury to any industrial established in India or material retar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths. A perusal of the above would show that the period of twelve months (not exceeding 18 months) is provided for the original investigation, a period of 12 months is provided, under Rule 23, but no period has been specified for Rule 22, which is for exporters, who have not been originally investigated because they did not export the goods in question into India. It is to be noted that both under investigation conducted under Rule 17 and 23, the number of exporters are much more compared to the exporters who are scrutinized under Rule 22. 30. As stated earlier India is the signatory to the agreement on implementation of VI of the General Agreement of Operations and Trade 1994 (GATT). Article 9 (extracted supra) deals with I mposition and Collection of Anti Dumping Duties. Rule 9.5 deals with the situation as specified in Rule 22. Rule 9.5 stipulates: a. If a product is subject to anti-dumping duties, the authorities shall promptly carry out a review for the purpose of determining individual margins of dumping, for any exporters or producers in the exporting Country who have not exported the product to the importing member during the period of investigation. b. These exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory nation to an International treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the same sense as that of the treaty, for the reason that in such cases what is sought to be achieved by the International treaty is a uniform International Code of Law which is to be applied by the Courts of all the signatory nations in a manner that leads to the same result in all the signatory nations. 35. Learned counsel for the appellant is justified in contending that if the time taken in review under 22 is longer than the original investigation, then this would allow the foreign exporter to dump its goods into India, on the basis of provisional assessment, to the detriment of the Indian Domestic Industry. The exporter can manipulate his prices and create documents, if the period for investigation, under Rule 22 is not shorter than the original investigation. 36. The counsel for the assessee would rely on an observation made by the CESTAT Principal Bench in H R Johnson (India) Limited Vs. Designated Authority {Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Rule 23 which deals with the sunset review would show that Rule prohibits the period of 12 months within which the review should be concluded. 40. As stated earlier, a perusal of the Clause 9.5 of GATT and the stand of the Country to specific questions posed to it would indicate that the Government had expressed categorically that the procedure under Rule 22 would be an accelerated review definitely to indicate that it should take lesser time compared to the original investigation. Viewed in this light, the Courts would have to read into Rule 22. The period within which the exercise under Rule 22 should be completed. The Court cannot interpretate Rule 22 in such a way that there is no time period fixed for the purpose of carrying out the exercise in Rule 22. 41. Bennion, on statutory interpretation (sixth edition), has dealt with constructions against Absurdity'. At page 869, it is stated as under:- The Court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the Courts give a very wide meaning to the concept of 'absurdity', using it to include virtually any result which is unw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language. [3] Of the aforesaid three components, namely, language, purpose and discretion 'of the Court', insofar as purposive component is concerned, this is the ratio juris, the purpose at the core of the text. This purpose is the values, goals, interests, policies and aims that the text is designed to actualize. It is the function that the text is designed to fulfil. We may also emphasize that the statutory interpretation of a provision is never static but is always dynamic. Though literal rule of interpretation, till some time ago, was treated as the 'golden rule', it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. The argument ab inconvenienti , said LORD MOULTON, is one which requires to be used with great caution . [Vacher Sons v. London Society of Compositors, (1913) AC 107]. Explaining why great caution is necessary LORD MOULTON further observed: There is a danger that it may degenerate into a mere judicial criticism of the propriety of the Acts of Legislature. We have to interpret statutes according to the language used 75 therein, and though occasionally the respective consequences of two rival interpretations may guide us in our choice in between them, it can only be where, taking the Act as a whole and viewing it in connection with existing state of the law at the time of the passing of the Act, we can satisfy ourselves that the words cannot have been used in the sense to which the argument points . [Vacher Sons v. London Society of Compositors, (1913) AC 107]. According to BRETT, L.J., the inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be what he calls an absurd inconvenience . Moreover, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for out of 77 the words actually used. [Shamrao V. Parulekar v. District Magistrate, Thana AIR 1952 SC 324]. No doubt in cases of ambiguity that construction which better serves the ends of fairness and justice will be accepted, but otherwise it is for the Legislature in forming its policy to consider these elements. [IRC v. Mutual Investment Co. (1966) 3 All ER 265]. If no alternative construction is open, the court cannot ignore a statutory provision to relieve what it considers a distress resulting from its operation; a statute has to be given effect to whether the court likes it or not . [Martin Burn Ltd. v. Calcutta Corporation, AIR 1966 SC 524]. The function of the court is to find out what is legal and not what is right. [Chandavarkar Sita Ratna Rao v. Ashalata S.Guram, (1986) 4 SCC 447]. It is presumed that a legislative body intends which is the necessary effect of its enactments; the object, the purpose and the intention of the enactment is the same; it need not be expressed in any recital or preamble; and it is not competent for any court judicially to ascribe any part of the legal operation of the statute to inadvertence. [Kariapper v. Wijesinha, (1967) 3 All ER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them. (4) In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the same sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations. It is in the light of these principles that we must now examine the statute in question. 24. Section 9A(1) refers to an anti-dumping duty. Such duty is only imposed when an article is exported from a country outside India to India at less than its normal value. Such duty can, in the Central Government s discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Coming back to the case on hand, the Tribunal though placed reliance on Clause 9.5, did not extract it fully. It omitted to notice the crucial lines of para 9.5, which reads such review shall be initiated and carried out on an accelerated basis, compared to normal duty assessment and review proceedings in the importing member. (emphasis supplied) 46. The agreement to which India is a signatory, is the basis of the ADD, and therefore, the purpose behind that must be the guiding force while interpreting Rule 22. The learned Single Judge in our respectful opinion erred in applying the literal Rule of Interpretation, to come to a conclusion that to fix the time limit in Rule 22 would amount to rewriting the Rule. In our opinion, the Rule of purpose of interpretation should have been applied. Keeping in view the spirit of GATT, to which India is a signatory and the stand which India has taken in answering various questions. If the time taken in review under 22 is longer than the original investigation, then this would allow the foreign exporter to dump its goods into India, on the basis of provisional assessment, to the detriment of the Indian Domestic Industry. The exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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