TMI Blog2023 (7) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of ADD, which, if levied, would remove the injury where applicable caused to the domestic industry. [Rule 17(1)(b) of the ADD Rules.] The moot point is that the ADD Rules, which are a delegated legislation framed by UOI/Central Government under the powers given to it by the Legislature under the above-referred provisions of the CTA, failed to envisage a scenario where a party, dissatisfied with the final findings returned by the DA could approach a Court and obtain an order that could disrupt the timelines provided in the said Rules. Keeping the underlying purpose in mind, it would not be out of place to read into Rule 18, the requirement to extend the timeframe given therein, for UOI/Central Government to decide on the recommendation made by the DA by excluding the period for which orders of the Court remained operable. This would, in our view, not amount to supplanting the Rule, but would, on the other hand, balance the interests of both the exporter of the subject article which is under investigation as well as the domestic industry. Any other view would tantamount to punishing the party which adhered to the orders of the Court. There are statutes which express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going by the name Sadara Chemical Company [hereafter referred to as Sadara ] in their respective appeals instituted before the Tribunal i.e., Appeal nos. AD/50865/2021 and AD/50864/2021. 1.2 Dow and Sadara had sought a stay of the operation of the customs notification dated 05.04.2021 issued by respondent no.1 i.e., Union of India (UOI) through Ministry of Finance, Department of Revenue, and the final findings notification dated 01.09.2020 issued by respondent no.2 i.e., the Designated Authority [in short, DA ] [hereafter collectively referred to as impugned notifications unless the context requires otherwise]. 2. In line with the relief sought in the interlocutory applications, in the appeals preferred before the Tribunal, a direction was sought for setting aside the aforesaid notification dated 05.04.2021 issued by UOI, whereby the recommendation made by the DA to impose Anti-Dumping Duty ( ADD ) on the goods imported into the country i.e., Flexible Slabstock Polyol ( FSP ) originating from Saudi Arabia and United Arab Emirates ( UAE ) was accepted. Resultantly, FSP originating from Saudi Arabia suffers ADD at the rate of USD 150.06 per MT. 2.1 The impugned notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been raised veers around sub-rule (1) of Rule 18 of the ADD Rules. The said Rule reads as follows: 18. Levy of duty- (1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. 6. Arguments in the matter have largely centred around the interpretation to be given to sub-rule (1) of Rule 18 of the ADD Rules, in the backdrop of the facts obtaining in the instant matter. BACKGROUND 7. Therefore, it would be relevant to bear in mind the following undisputed facts, apart from the ones already referred to hereinabove. 7.1 The notification dated 01.09.2020 issued by the DA was assailed by way of two writ actions i.e., W.P.(L) No. 4079/2020 and W.P.(L) No. 4058/2020, which were preferred by Dow and another entity, going by the name Expanded Polymer Systems Pvt. Ltd. [in short, EPL ] before the Bombay High Court. 7.2 On 13.10.2020, the Bombay High Court passed the following interi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties when the appeals are finally heard on merits. 12. It is against this backdrop that the instant appeal was preferred in this Court by Dow. 13. Submissions in support of the appellant s stand were advanced by Mr S. Ganesh, learned senior advocate, instructed by Ms Juhi Chawla, Advocate, while on behalf of respondent no.1/UOI, submissions were made by Mr Satish Kumar, learned senior standing counsel. 13.1 MPL i.e., respondent no.3 was represented by Mr Sandeep Sethi, learned senior counsel, instructed by Mr Jitendra Singh, Advocate. SUBMISSIONS ADVANCED ON BEHALF OF THE APPELLANT 14. The submissions of Mr Ganesh can be, broadly, paraphrased as follows: (i) The timeline fixed in Rule 18 of the ADD Rules is specific and mandatory. Since the DA made its recommendation for the imposition of ADD on FSP via the notification dated 01.09.2020, UOI was mandatorily required to take a view in the matter on or before 01.12.2020. [See Association of Synthetic Fibre Industry Vs. J.K. Industries Ltd. Ors. (2005) 11 SCC 482 and Nirma Ltd. Vs. Union of India (2017) 346 ELT 328 (Guj)]. (ii) Even if the period for which the interim order dated 13.10.2020 issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DVANCED ON BEHALF OF THE RESPONDENTS 15. Mr Satish Kumar, who defended the interim order dated 01.11.2021 passed by the Tribunal, on behalf of respondent no.1/UOI, adverted to the background in which the notification dated 05.04.2021 was issued. It was submitted, that after taking into account the facts available and contentions raised, the DA had concluded that the FSP exported to India from Saudi Arabia and UAE was priced below its associated normal value, thus, causing material injury to the domestic industry. 15.1 The recommendation made by the DA under Rule 17 of the ADD Rules, imposing ADD on FSP to remove the injury caused to the domestic industry was considered by UOI. 15.2 In arriving at its conclusion, UOI also took account of the representations lodged by Dow and Sadara on 25.01.2021 and 19.02.2021 respectively, in line with the directions issued by the Bombay High Court via judgment dated 06.01.2021. 15.3 UOI could not start the process of taking a decision on the recommendation made by DA after 13.10.2020, because of the interim order passed by the Bombay High Court, which was vacated only after the final judgment was rendered by it on 06.01.2021. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued after the limitation prescribed under Rule 18 of the ADD Rules had been crossed. (iv) The notification dated 05.04.2021 is aligned with the maxim Lex Non Cogit Ad Impossibila i.e., the law does not compel a man to do that which he cannot possibly perform and Actus Curiae Neminem Gravabit i.e., an act of Court shall prejudice no man. These maxims were taken into account by the Supreme Court in Indore Development Authority while concluding that where an interim order is issued by the Court, the period for which it is operable would have to be excluded, even if it is not expressly stated in the given Act, Section, Rule or Regulation. (v) The ratio of the judgments rendered in J.K. Industries Ltd. and Nirma Ltd. has been misconstrued. In J.K. Industries Ltd., the DA had not issued a notification under Rule 17 of the ADD Rules. The Court, bearing in mind this fact and that no prejudice would be caused to the disputants, vacated the interim orders passed by the High Court. (vi) The timeline provided in Rule 17 is governed by the timeline prescribed by the WTO, whereas the timeframe provided under Rule 18 of the ADD Rules is governed by domestic law, and therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the DA recommended the imposition of ADD on FSP originating from Saudi Arabia, at the rate of 150.06 per MT. 20. The said decision of the DA was assailed by Dow and EPL, by way of writ action(s) filed in the Bombay High Court, although they were premature, as no final decision had been taken at that juncture by UOI. 21. Although the Bombay High Court granted an interim order on 13.10.2020, which was continued, having regard to the fact that the writ petitions were being heard, it was ultimately vacated, on the ground that the writ actions were premature, since UOI had not taken a final decision in the matter. 21.1 The Bombay High Court, however, went further and directed UOI to consider the representations, which sought to assail the view taken by the DA, before rendering its final view on the matter. Concededly, Dow and Sadara filed representations, pursuant to the directions issued by the Bombay High Court via its final judgment dated 06.01.2021, on 25.01.2021 and 19.02.2021 respectively. 22. The representations filed by Dow and Sadara, it appears, did not cut much ice with UOI, as it accepted the recommendation made by the DA via a notification dated 01.09.2020. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2020 was continued on 15.10.2020, 21.10.2020 and 23.10.2020, inter alia, at the behest of Dow. 28. The record discloses that on 23.10.2020, when the concerned bench of the Bombay High Court reserved judgment in the writ actions, it specifically directed that the interim order dated 13.10.2020 would continue to operate till a final decision is rendered in the matters. 29. Between 23.10.2020 and 01.12.2020, Dow chose not to approach the Bombay High Court for vacation/variation of the interim order dated 13.10.2020. Pertinently, as noticed above, after the final judgment was delivered on 06.01.2021, representations were made by both Dow and Sadara, in line with the directions contained therein. 30. To our minds, it is well settled, that Courts and Tribunals which have jurisdiction to decide a matter, are, as characteristically stated by the Supreme Court in a Constitution Bench judgment, empowered to decide both correctly and wrongly. Ujjam Bai vs State of Uttar Pradesh AIR 1962 SC 1621. 30.1 In other words, if an order or a view taken does not align with the law, a litigant needs to take recourse to an appropriate remedy to have such an order declared illegal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 01.09.2020 and 13.10.2020 can have no impact on the conclusion reached by us, that the final notification dated 05.04.2021 issued by respondent no.1 was within the timeframe prescribed under Rule 18 of the ADD Rules. 33. It is to be borne in mind that the ADD Rules have been framed by the UOI/Central Government, in the exercise of powers conferred upon it under sub-section (6) of Section 9A and sub-section (2) of Section 9B of the CTA. 33.1 The ADD Rules empower UOI/Central Government to appoint a person, not below the rank of a Joint Secretary to the Government of India or such other person which it thinks is fit to act as the DA and notify such appointment via the official gazette. The UOI/Central Government is also empowered to provide the DA, the services of such other persons and other facilities as it deems fit. [Rule 3 of the ADD Rules.] 33.2 The duties of the DA are captured in Rule 4 which, inter alia, require investigation as to the existence, degree and effect of any alleged dumping in relation to the import of any article; identification of any article liable for ADD; submissions of findings, provisional or otherwise, to the Central Government concerni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the said rule is extracted hereafter: 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 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 causal link, where applicable, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy; Provided that the Central Government may, [in its discretion in special circumstances] extend further the aforesaid period of one year by six months: 34.1 Interestingly, the second proviso appended to the said Rule states that where the DA has suspended the investigation on acceptance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h orders of the Court remained operable. This would, in our view, not amount to supplanting the Rule, but would, on the other hand, balance the interests of both the exporter of the subject article which is under investigation as well as the domestic industry. Any other view would tantamount to punishing the party which adhered to the orders of the Court 40.1 It was always open to DOW to seek vacation or variation of the interim order. DOW, on the other hand, took advantage of the directions contained in the final judgement passed by the Court and accordingly, made representation to the DA. It is only after it failed to persuade the DA to its point of view, that it sought to agitate that the timeframe provided under Rule 18, having expired, the impugned notification dated 05.04.2021 was non est in law. 41. We are conscious of the fact that there are statutes which expressly provide for the exclusion of timeframes provided in the statute for completion of certain acts, on account of order(s) issued by a court. One such example is the provisions of Section 11A of the Land Acquisition Act, 1894. 41.1 The fact that there is no such provision, in our opinion, should not deter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guishable, as the observations made therein have to be understood in the context in which they were made. This was a case where a notification for the levy of provisional ADD was issued, which had come to an end due to efflux of time. The levy of provisional duty and other proceedings were challenged before the concerned High Court. 43.1 The High Court, on a prayer made by the petitioner in an action taken out under Article 226 had stayed the hands of the DA from returning final findings during the pendency of the writ action. This order was subsequently modified by the High Court, to the effect that while the DA could proceed to record final findings, it would keep the same in a sealed cover and that the recommendations made by the DA would be subject to the final outcome in the writ petition. It was while the final hearing in the writ petition was in progress, that the Supreme Court was moved. 43.2. The Supreme Court, having regard to the fact that the DA only recommends a course of action in the exercise of powers under Rule 17, which may or may not be accepted by UOI/Central Government, concluded that since no prejudice would be caused to any party by mere communication ..... X X X X Extracts X X X X X X X X Extracts X X X X
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