TMI Blog2020 (2) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... here the Designated Authority has been asked to conduct a fresh determination pursuant to an order passed by the Tribunal. In Huawei Tech. Co. Ltd. v. Designated Authority [ 2011 (8) TMI 923 - CESTAT, NEW DELHI ], the final findings of the Designated Authority as well as the consequential notification issued by the Central Government imposing anti-dumping duty were assailed. The Tribunal allowed the Appeal and remanded the matter to the Designated Authority for affording a post decisional hearing and for making such modifications in the final findings as may be considered necessary. The contention that a fresh determination cannot be made after the expiry of the time-limit was not accepted for the reason that for implementation of a decision of an Appellate Forum, the time-limit prescribed for original anti-dumping investigation will not be applicable. Application disposed off. - Application No. AD/MISC/50109/2020 in Appeal No. AD/50430/2019 - Misc. Order No. MO/50114/2020-CU(DB) - Dated:- 21-2-2020 - Justice Dilip Gupta, President, Dr. D.M. Misra, Member (J) and Shri C.L. Mahar, Member (T) Ms. Reena Khair and Shri Rajesh Sharma, Advocates, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication may be issued as to whether the anti-dumping duty can now be extended after the expiry of the period for which the anti-dumping duty was levied. 4. It would, therefore, be necessary to examine the dispute that was raised by Forech India in the Writ Petitions that were filed before the Delhi High Court. It transpires that anti-dumping duty imposed by a notification issued by the Central Government was to expire on 4 May, 2013, but four days prior this date, sunset review proceedings were initiated by the domestic industry on 30 April, 2018. The Central Government, after a gap of 60 days, issued a notification reviving the anti-dumping duty with effect from 5 May, 2013 for a period of one year up to 4 May, 2014 in terms of the second proviso to Section 9A(5) of the Tariff Act. The Designated Authority gave its final findings on 29 April, 2014 on the sunset review, which findings were published in the Gazette of India on 28 July, 2014. The Designated Authority recommended extension of the anti-dumping duty for a period of five years and the Central Government, by a notification dated 24 July, 2014, imposed anti-dumping duty for another period of five years. Thus, there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh life into the levy for a period of one year requires a fresh notification, in addition to the notification for initiation of the sunset review. That not being so, in the present case the levy under impugned notification is without authority, hence it has to be and is set aside. (emphasis supplied) 6. In regard to the extension of anti-dumping duty for a period of five years on the second sunset review, after a gap of 80 days, the Delhi High Court observed as follows :- 21. Likewise the second notification imposing anti-dumping duty for a period of five years too cannot be sustained because it has to be issued within the period of first five years or in the extended one year period of sunset review in which the earlier existing duty has been extended. The first proviso of section 9A(5) of the Act stipulates that in a sunset review when the Central Government is of the opinion that cessation of such duty is likely to lead to continuation or recurrence of dumping or injury, it may extend the period of levy for a further period of five years. The degree of levy would be to the extent necessary to offset the injury. In other words, there would have to be a duty in existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling appropriate applications before the Designated Authority, that the proceedings were concluded by the Designated Authority in time so that enough time was left for the matter to be decided by the Designated Authority even on a remand by the Appellate Tribunal. 11. The contentions advanced by Learned Counsel for the parties have been considered and to be able to appreciate the contentions, it would be necessary to refer to the relevant provisions. 12. Section 9A(1) of the Tariff Act deals with anti-dumping duty on dumped articles. It provides that where any article is exported by an exporter or producer from any 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 anti-dumping duty not exceeding the margin of dumping in relation to such article. Sub-section (5) of Section 9A provides that 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. The first proviso, however, stipulates that if the Central Government, in a review, is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The point on which clarification has been sought is whether the Designated Authority can still make a recommendation to the Central Government for imposition of anti-dumping duty since the period for which anti-dumping duty was earlier imposed by notification dated 16 January, 2014 expired on 16 January, 2019. This clarification has been sought for the reason that the Delhi High Court in Forech India had held that a notification for continuation of anti-dumping duty has to be issued within a period of five years or the extended period of one year because there has to be a duty in existence for it to be extended. 17. The submission of Learned Counsel for the domestic industry is that such a limitation provided for continuation of anti-dumping duty would not be applicable in a case where the Designated Authority is asked to make a fresh determination on remand by the Appellate Tribunal. 18. Such a situation was examined by the Supreme Court in The Director of Inspection of Income Tax (Investigation), New Delhi and Another v. M/s. Pooran Mal Sons and Another [1975 SCC (4) 568] in a matter arising out of The Income Tax Act, 1961. [Income Tax Act]. The order passed by the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But in the circumstances of a case the Court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice the Court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a court quashes an order because the principles of natural justice have not been complied with it should not while passing that order permit the Tribunal or the authority to deal with it again irrespective of the merits of the case. (emphasis supplied) 19. This decision of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the Respondent that the Writ Petition must be dismissed since the period prescribed under Rule 17(1) of the Anti-Dumping Rules was over cannot be sustained in the facts of the case. 21. In Huawei Tech. Co. Ltd. v. Designated Authority [2011 (273) E.L.T. 293 (Tri. - Del.)], the final findings of the Designated Authority as well as the consequential notification issued by the Central Government imposing anti-dumping duty were assailed. The Tribunal allowed the Appeal and remanded the matter to the Designated Authority for affording a post decisional hearing and for making such modifications in the final findings as may be considered necessary. The contention that a fresh determination cannot be made after the expiry of the time-limit was not accepted for the reason that for implementation of a decision of an Appellate Forum, the time-limit prescribed for original anti-dumping investigation will not be applicable. 22. In this connection it would also be pertinent to refer to the European Commission [Brussels, 13.8.2010 COM(2010) 435 final 2010/0234 (NLE)] proposal for a Council Regulation re-imposing definitive anti-dumping duty on imports of ironing boards originating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the basic Regulation applies to the initiation of proceedings and the conclusion of the investigation initiated pursuant to Article 5(9) of the basic Regulation only and not to a partial reopening of an investigation with a view to implementing an EU Court ruling. (21) This conclusion is in line with the approach taken for the implementation of WTO panels and Appellate Body reports rulings where it is accepted that institutions could amend deficiencies of a regulation imposing anti-dumping duties in order to comply with dispute settlement body reports, including in cases concerning the European Union. In such cases it was felt necessary to adopt special procedures to implement WTO panel and Appellate Body reports because of the lack of direct applicability of such rulings in the EU legal order, by contrast with the decisions taken by the Court of Justice which are directly applicable. (22) With respect to the arguments submitted on the application of Article 6(1) of the basic Regulation it is noted that no infringement of Article 6(1) of the basic Regulation could be established since the Commission has not opened a new proceeding but reopened the original investigation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
