TMI Blog2007 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... th June, 2001 should continue beyond the period of five years from 26th December, 2005 onwards. If it is found by the Central Government that the requirements of the first proviso to Section 9A(5) of the Act are met and anti-dumping duty should continue, then the provisional assessments made with effect from 1st February, 2008 will take care of the interests of the domestic industry. On the other hand, if it is found that there is no reason to continue with the anti-dumping duty, the provisional assessment can always be finalized without any detriment to the rights of the Indian importers of the subject goods. It is expected that the Central Government will complete the review as expeditiously as possible. - 15945 of 2006 - - - Dated:- 3-12-2007 - IN THE Madan B. Lokur and Dr. S. Muralidhar, JJ. Writ Petition (Civil) No. 15945 of 2006 with Cus. A.C. No. 16 of 2006 decided on 3-12-2007 [Judgment per : Madan B. Lokur, J.]. - In a writ petition filed under Article 226 of the Constitution, the Petitioner has prayed for an appropriate writ to the Central Government not to withdraw the anti-dumping duty imposed by Notification No. 65/2001-Cus., dated 25th June, 2001. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the Rules). 8. The broad background facts of the case as placed before us suggest that representations were made by the domestic industry to the Central Government, in which it was alleged that certain seamless grade alloy and non-alloy steel billets, bars and rounds (for short the subject goods) originating in or exported from Russia, China and Ukraine are being dumped into India. Consequently, the Designated Authority under the Act initiated an investigation as contemplated by Rule 5 of the Rules. As a result of the investigation, the Designated Authority made a recommendation on 1st December, 2000 that antidumping duty should be provisionally imposed on the subject goods originating in or exported from Russia and China. The recommendation was accepted by the Central Government and a Notification dated 26th December, 2000 was issued by the Central Government provisionally imposing anti-dumping duty on the import of the subject goods from Russia and China up to 25th June, 2001. 9. Later on 1st June, 2001, the Designated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 17, 18, 19, and 20 shall be mutatis mutandis applicable in the case of review." 12. As a result of the representation, the Designated Authority issued a public notice on 24th May, 2004 initiating a mid-term review regarding antidumping duty imposed on imports of certain seamless grade alloy and non-alloy steel billets, bars and rounds from Russia, China and Ukraine. At this stage, it is necessary to quote the language of paragraph 3 of the public notice. This is what is said in paragraph 3 of the public notice: - "Having decided to review the final findings notified vide No. 31/1/99 dated 1st June, 2001 and final duty imposed on 26th June, 2001, the Authority hereby initiates investigations to review the need for the continued imposition of anti-dumping duty and whether cessation of anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury on imports of certain seamless grade alloy and non-alloy steel billets, bars and rounds originating in or exported from Russia, China and Ukraine in accordance with the Customs Tariff (Amendment) Act, 1995 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian market by the producers and/or exporters in Russia resulting in continued dumping. 3. The dumping margin has increased. 4. The domestic industry continues to suffer injury and there is a great likelihood that revocation would lead to injury to the domestic industry. 5. The injury to the domestic industry is being caused by the dumped imports from Russia. 6. The injury margin has increased in respect of imports from both the countries. 7. Anti-Dumping Duties are required to be continued further for a further period of five years." In the written submissions subsequent to the oral hearing on 7th December, 2004 the summary and conclusions of the domestic industry were as follows : "1. The petitioner have failed to brought any evidence, which suggests a need for withdrawal of duty. 2. Present initiation is bad in law as petitioner failed to establish "changed circumstances" warranting initiation of review investigation. 3. Imposition of duty has helped the domestic industry improve its performance. The anti-dumping duty should therefore be continued further. 4. Continued dumping from Russia and Ukraine is required to be checked with imposition of continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government which issued a Notification dated 19th July, 2005 withdrawing the anti-dumping duty. 20. In the meanwhile, since the Petitioner was aggrieved by the final findings of the Designated Authority, it filed WP (C) No. 10615/2005 in this Court. When that petition came up for hearing on 1st August, 2005, it was pointed out to the Court that the final findings of the Designated Authority were appealable before the Tribunal and that a Notification dated 19th July, 2005 had already been issued by the Central Government withdrawing the anti-dumping duty. Upon hearing learned counsel for the parties, a learned Single Judge of this Court passed an order staying the operation of the Notification dated 19th July, 2005 conditional on the Petitioner filing an appeal before the Tribunal within a period of 15 days. 21. It appears that the Petitioner did file its appeal within the prescribed time but the matter could not be taken up by the Tribunal for final disposal. Consequently, the Petitioner was again constrained to file WP (C) No. 24007/2005 requesting for expeditious disposal of the appeal as well as for continuation of the stay of operation of the Notification dated 19th Jul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade out for earlier revocation, we should be directing the continuance of duty beyond five years in a mid-term review." 25. It is against the view expressed by the Tribunal that it cannot extend the anti-dumping duty beyond the original period of five years that the Petitioner filed Cus. A.C No. 16/2006 in this Court. As mentioned above, the Petitioner also filed a writ petition for restraining the Central Government from withdrawing the anti-dumping duty imposed vide Notification dated 25th June, 2001. SUBMISSIONS AND DISCUSSION 26. It is submitted by learned Counsel for the Petitioner that clearly there is no valid reason for the Designated Authority to make a recommendation on 20th May, 2005 that continuing the anti-dumping duty till 25th December, 2005 was not justified. It is also submitted that there is no valid reason for the Central Government to accept the final findings of the Designated Authority and issue the Notification dated 19th July, 2005 withdrawing the anti-dumping duty. This was the view clearly expressed by the Tribunal and that view has been accepted both by the Designated Authority as well as by Central Government, neither of whom challenged the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Authority and Additional Secretary, 2006 (196) E.L.T. 385. We were taken through the decision by the learned Additional Solicitor General and while it is correct that the powers of the Designated Authority are limited only to conducting a mid-term review, but that does not prevent the Designated Authority, on the material placed before it, to recommend to the Central Government to conduct a sunset review. Moreover, there is nothing in the Act which prohibits the Central Government from exercising suo motu powers for conducting a sunset review. It is true that the parameters for conducting a sunset review are completely different from the parameters for conducting a mid-term review but that does not mean that the authorities under the Act, that is, the Designated Authority as well as the Central Government cannot shift gears and conduct a suo motu sunset review if the situation so warrants. In the present case, there was no need for the Central Government to have exercised suo motu powers, since the domestic industry had already requested for a sunset review, and this request ought to have been considered. 29. Admittedly, there was no valid reason for the Central Government to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any 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 antidumping 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Rule 23 lays down the procedure for conducting a sunset review. 32. We are, therefore, not at all in agreement with the view canvassed by the learned Additional Solicitor General on behalf of the Central Government that a sunset review was not possible in the circumstances of the case and that the domestic industry was only entitled to be heard in respect of a mid-term review. A request having been made by the domestic industry for a sunset review, it ought to have been considered by the Central Government and if so advised, rejected on merits. 33. We may note that we have taken the same view in Indian Metal and Ferro Alloys Ltd. v. Designated Authority and Anr., WP (C) No. 16893/2006 decided on 1st November, 2007. 34. In so far as the substantial question of law that has been framed in Cus. A.C. No. 16/2006 is concerned, we are of the view that it must be answered in the affirmative inasmuch as the Tribunal exercises a statutory jurisdiction. What was before the Tribunal was the question whether the Central Government was justified in prematurely withdrawing the anti-dumping duty or not. The question before the Tribunal was not whether the Central Government can exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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