Gujarat High Court
Dcw Limited, vs Union Of India on 15 June, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/14202/2017 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION NO. 2 of 2018
IN R/SPECIAL CIVIL APPLICATION NO. 14202 of 2017
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DCW LIMITED, Versus UNION OF INDIA ================================================================ Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE with MR GAURAV S MATHUR, ADVOCATE with MR RAJESH SHARMA, ADVOCATE and MR ABHISHEK SHAH, ADVOCATE for the Applicant MR DEVANG VYAS for the RESPONDENT(s) No. MR HARDIK P MODH, ADVOCATE with MR AMIT LADDHA, ADVOCATE for the RESPONDENTS MR NIRZAR S DESAI for the RESPONDENT(s) No. 2 MR VISHAL K SEVAK for the RESPONDENT(s) No. NOTICE SERVED BY DS for the RESPONDENT(s) No. PARITOSH R GUPTA for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 15/06/2018 IA ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Rule. The learned advocates appearing on behalf of the respondents waive service of notice of rule on behalf of the respective respondents.
2. By this application, the applicant - original petitioner seeks directions to the respondent No.2 - Designated Authority, to undertake and complete the investigation in respect of the Sunset Review regarding imports of Soda Ash from China PR, USA, Ukraine, Kenya, Pakistan, European Union Page 1 of 16 C/SCA/14202/2017 IA ORDER and Iran (hereinafter referred to as the "subject countries") for continued imposition of Anti Dumping Duty and for that purpose, seek appropriate extension from the respondent No.3, Ministry of Finance, Department of Revenue, Government of India in terms of the first proviso to rule 17(1)
(a) of the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as "the rules").
3. The facts of the case stated briefly are that the petitioner is a part of the Domestic Industry engaged in the business of manufacturing, inter alia, Soda Ash along with other constituents of the Domestic Industry. By way of a notification dated 3.7.2002, the third respondent imposed Anti Dumping Duty on imports of Soda Ash from the subject countries.
Thereafter, upon an application filed by the fourth respondent, a review (hereinafter referred to as "Mid Term Review") was initiated on 21.7.2015. This Mid Term Review initially resulted in the issuance of customs notification dated 21.12.2016 withdrawing the duty, which was kept in abeyance on account of pendency of Special Civil Application No.16428 of 2016 filed by the petitioner challenging the said customs notification along with preceding disclosure statement dated 14.9.2016 and final findings dated 23.9.2016. The said customs notification along with preceding disclosure statement dated 14.9.2016 and final findings dated 23.9.2016 were quashed and set aside by way of judgment and order dated 23.2.2017 passed by a coordinate bench of this court in Special Civil Application No.16426 of 2016 and allied matters.
Page 2 of 16C/SCA/14202/2017 IA ORDER
4. By the judgment and order dated 23.2.2017, this court directed the Designated Authority to issue a disclosure statement afresh within a period of sixty days. The said sixty days period ended on 30.5.2017. The second respondent issued a disclosure statement on 7.6.2017 disclosing essential facts as to continued dumping, positive likelihood of recurrence of dumping and an injury in case of anti dumping duties are revoked midterm. The Designated Authority also embarked upon a Sunset Review with respect to the merits of Soda Ash from the subject countries vide notification dated 16.6.2017. Under the provisions of rule 23 of the rules, the period of completion of Sunset Review is twelve months. However, such period is extendable by a further period of six months under rule 17 of the rules.
5. It is the case of the petitioner that despite disclosing the essential facts, which are nothing but final set of facts on which the Designated Authority would give its final analysis showing continued dumping and positive likelihood of recurrence of dumping and injury and initiating Sunset Review to consider further imposition for five years, the Designated Authority vide final findings dated 22.7.2017, recommended withdrawal of duty in Mid Term Review. On the same day, that is, on 22.7.2017, the Designated Authority also issued an order annulling the Sunset Review (hereinafter referred to as "the annulment order").
6. In the interregnum, since the five year period of the notification dated 3.7.2012 was ending on 3.7.2017 and since the Mid Term Review was already initiated, by way of notification dated 30.6.2017 issued pursuant to order dated Page 3 of 16 C/SCA/14202/2017 IA ORDER 30.6.2017 passed by this court in Special Civil Application No.12251 of 2017, the period of anti dumping duty was extended by one year, that is, upto 2.7.2018 under section 9A(5) of the Customs Tariff Act, 1975.
7. The petitioner and other constituents of the Domestic Industry challenged the final findings dated 22.7.2017 and annulment order dated 22.7.2017 by way of the captioned petition and allied matters. Vide order dated 31.7.2017, this court restrained the Designated Authority from acting upon the final findings dated 22.7.2017 and annulment order dated 22.7.2017. According to the petitioner, by virtue of the order dated 31.7.2017, the second respondent-Designated Authority was restrained from acting on the annulment of Sunset Review and was, therefore, required to undertake investigation for completing the Sunset Review.
8. It is further case of the petitioner that despite the order dated 31.7.2017, the Designated Authority failed to take further steps with regard to conduct of investigation for Sunset Review regarding continuance of anti dumping duty on imports of Soda Ash from the subject countries. The Designated Authority had been requested to complete the investigation vide letters dated 26.4.2018 and 2.5.2018 however, there was no response to such communications, nor were any steps taken to conduct the investigation on or before the period of twelve months which ends on 15.6.2018, or seek an extension under rule 17 of the rules.
9. According to the petitioner, since the subject writ petition was pending and the second respondent had not taken further Page 4 of 16 C/SCA/14202/2017 IA ORDER steps for completion of investigation before 2.7.2018, that is the day on which the extended period of duty was to expire, the petitioner filed I.A. No.1 of 2018 in the subject petition, however, a coordinate bench of this court by a judgment and order dated 11.6.2018, allowed the writ petition quashing and setting aside the final findings dated 22.7.2017 in Mid Term Review as well as the impugned order dated 22.7.2017 annulling the Sunset Review. This court, in its judgment and order dated 11.6.2018, issued the following directions:
"44. In view of the aforesaid discussion, we are of the view that the final findings dated 22.7.2017 cannot be sustained as they have been vitiated and hence they are required to be quashed and set aside. Petitions are allowed. Rule is made absolute in all the petition.
45. This Court has also considered that the respondent no. 2 could not have annulled the Sunset Review and the annulment of Sunset Review is only in the eventuality mentioned in the rules and same being absent in the present case, the respondent no.2 was require to bring the Sunset Review in its logical conclusion. Hence we quash and set aside the annulment and direct the respondent nos. 1 and 2 to do the needful for bringing the Sunset Review to its logical end strictly in accordance with law.
Registry is directed to keep copy of this CAV judgment in each matter."
10. It is the case of the petitioner that in the light of the aforesaid directions, it is incumbent upon the Designated Authority to complete the Sunset Review investigation strictly in accordance with law and that since the period of completing the review end today, that is on 15.06.2018, in order to comply with such directions, it was necessary for the Designated Authority to seek an extension under the first Page 5 of 16 C/SCA/14202/2017 IA ORDER proviso to rule 17(1)(a) of the rules. Therefore, the Alkali Manufacturers' Association of India, of which the petitioner is a member, vide letters dated 12.6.2018, informed the respondents No.1, 2 and 3 of the passing of the judgment and order dated 11.6.2018 and requested them to complete the Sunset Review investigation. Further, the petitioner vide email dated 13.6.2018 drew the attention of the Designated Authority to this fact with a request to seek extension. According to the petitioner, it has not received any reply to its email dated 13.6.2018 and that it apprehends that the Designated Authority is not likely to seek an extension and will allow the Sunset Review investigation to lapse, thereby rendering the judgment and order dated 11.6.2018 ineffective and unimplemented which is evident from the fact that only one day remains in the twelve month period to expire. In the aforesaid backdrop, the petitioner has approached this court seeking the following substantive reliefs:
"15. In the circumstances, the applicant prays that:
[a-1] This Hon'ble Court be pleased to direct the respondent No.2 to forthwith seek extension of period under first proviso to rule 17(1)(a) of the Rules for completing the Sunset Review investigation regarding imports of Soda Ash from subject countries and also direct the respondent No.1 to forthwith grant suitable extension to enable the respondent No.2 to complete the Sunset Review investigation within the extended period, or in the alternative, [a-2] This Hon'ble Court be pleased to extend the time for completion of Sunset Review investigation for a suitable period beyond 15.6.2018 and be further pleased to direct the respondent No.2 to complete the Sunset Review investigation in accordance with law, within such extended period; and"Page 6 of 16
C/SCA/14202/2017 IA ORDER
11. Vide order dated 14.6.2018, a coordinate bench of this court had passed the following order:
"(1) Learned counsel for the applicant mentioned this matter in the morning and learned counsel Shri Modh submitted that the copy is being received that the matter be kept tomorrow, to which there was a strong objection as some orders were required to be passed in respect of the fact that Sunset Review which had started on 16.06.2017 and one year period would get over by 15.06.2018 and therefore, despite there being an order of this Court to complete the Sunset Review in accordance with law, the same was not heeded to as per the say of the counsel. Accordingly, time granted and this matter was listed today.
(2) Learned counsel for the applicant invited Court's attention to the fact that the Sunset Review is ordered to be brought to its logical conclusion in accordance with law and that being a direction, the same could have been complied with. The respondent-designated authority was approached on 12th June, 2018 and 13th June, 2018 for obtaining appropriate extension permission from the respondent No.1-Union of India as the extension upto six months time is permissible in law and this extension was not likely to jeopardize any one as the Anti Dumping Duty is extended upto 02.07.2018.
(3) Learned counsel Shri Modh who appears on advance copy for respondent No.1 submitted that there was an application by this very applicant during the pendency of the matter and the Court while disposing of the main matter, did not pass any order in that matter. Therefore, the same prayer cannot made and in alternative he submitted that this is fresh cause of action and therefore, fresh new petition should have been filed.
(4) Mr. Nirzar Desai submitted that he has to take instructions and the matter be posted tomorrow because in any way time limit will lapse by 12:00 midnight tomorrow i.e. on 15.06.2018.Page 7 of 16
C/SCA/14202/2017 IA ORDER (5) In that view of the matter, we are inclined to keep this matter on 15.06.2018. So far as contention of Shri Modh is concerned, we would like to observe that the disposal of the earlier application with similar prayer would be prima-facie is not justified as the Court clearly issued direction in the judgment and the Court did except the authority to do the needful for due compliance of the Court's order in which the Court has observed that the Sunset Review deserves to be brought to its logical end. Non seeking of extension and permitting the Sunset Review on lapse of time, in our prima facie view, amounts to bringing about abrupt end which deserves to be construed in its proper perspective.
Put up on 15.06.2018."
Since the concerned Bench is not available today, considering the urgency of the matter which would become infructuous if no orders are passed today, this matter has been listed for hearing today before this Bench.
12. Mr. Mihir Joshi, Senior Advocate, learned counsel with Mr. Gaurav Mathur, learned advocate for the petitioner, submitted that in the light of the directions issued by this court vide its judgment and order dated 11.6.2018, whereby the court has held that the second respondent Designated Authority could not have annulled the Sunset Review and that it was required to bring the Sunset Review to its logical conclusion, it was incumbent upon the Designated Authority to comply with such directions, for which purpose an extension was required to be sought under the first proviso to rule 17(1)(a) of the rules. It was submitted that in the absence of any extension being obtained, the period of Sunset Review would lapse on the midnight of 15.6.2018 and the judgment and order dated 11.6.2018 passed by this court in Special Civil Application Page 8 of 16 C/SCA/14202/2017 IA ORDER No.14202 of 2017 and allied matters would be rendered ineffective. It was argued that the approach of the respondents in not seeking an extension and seeking to render the judgment ineffective by permitting the time prescribed under sub-rule (2) of rule 23 of the rules to lapse is illegal, unfair and prejudicial and amounts to deliberate disregard of the directions issued by this court. It was submitted that if the Designated Authority does not get an extension, the rights and interest of the petitioner would be gravely and irretrievably prejudiced, inasmuch as the Sunset Review initiated on the prima facie satisfaction of the existence of dumping and likelihood of injury would lapse and the article under investigation will be freely dumped into India. It was submitted that having regard to the paucity of time, an order of extension is required to be passed today itself.
12.1 The attention of the court was invited to the provisions of sub-rule (2) of rule 23 of the rules, to submit that the same provides that any review initiated under sub-rule shall be concluded within a period not exceeding twelve months from the date of initiation of such review. Referring to sub-rule (3) of rule 23 of the rules, it was pointed out that the same provides that the provisions of rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 shall mutatis mutandis be applicable in the case of review. Reference was made to the first proviso to clause (a) of sub- rule (1) of rule 17 of the rules, which provides that the Central Government may, in its discretion, in special circumstances, extend further the aforesaid period of one year by six months to submit that there is a power to extend the period for completing the Sunset Review by six months, and hence, with a view to ensure that the judgment and order passed by this Page 9 of 16 C/SCA/14202/2017 IA ORDER court is not rendered ineffective and unimplemented, the Designated Authority ought to have made an application for extension of time and that the Central Government ought to have granted the same. It was submitted that however, in the light of the fact that the Designated Authority has not made any such application to the Central Government as well as the fact that the petitioner's representation to the Designated Authority as well as to the Central Government has remained unattended, if the extension is not granted today, the entire judgment and order passed by this court would be rendered ineffective and unimplemented.
12.2 The attention of the court was invited to the decision of the Supreme Court in The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan and another, AIR 1987 SC 537, for the proposition that in exercise of its jurisdiction under Article 226, the High Court can issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. It was, accordingly, urged that in the facts and circumstances of the case, this court may itself pass an order extending the period for completion of Sunset Review by a period of six months as contemplated under the proviso to rule 17(1) (a) of the rules.
Page 10 of 16C/SCA/14202/2017 IA ORDER 13 Mr. Nirzar Desai, learned standing counsel appearing on behalf of the second respondent Designated Authority, submitted that the Designated Authority has forwarded a copy of the judgment and order dated 11.6.2018 passed by this court to the Ministry of Law, Government of India, for its opinion as to whether the same is required to be challenged before the higher forum. It was submitted that therefore, unless and until the opinion of the Ministry of Law is received, no steps can be taken by the Designated Authority for obtaining extension of the period to complete the Sunset Review under the proviso to rule 17(1)(a) of the rules as the same may be construed as the respondents having accepted the judgment and order rendered by this court. It was, accordingly, categorically stated that no application under the proviso to rule 17(1)(a) of the rules for extension of the period for completion of the Sunset Review had been made by the Designated Authority nor was any such application likely to be made till the opinion of the Ministry of Law has been obtained.
14 Thus, the Designated Authority has not made any application for extension of the period for completion of the Sunset Review nor has the Central Government responded to the representation made by the petitioner. Consequently, the position as on date is that in case the period for completing the Sunset Review is not extended today, the proceedings would lapse, thereby rendering the judgment and order dated 11.6.2018 passed by this court in Special Civil Application No.14202 of 2017 and allied matters, nugatory and ineffective. By virtue of the provisions of sub-rule (2) of rule 23 of the rules, any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from Page 11 of 16 C/SCA/14202/2017 IA ORDER the date of initiation of such review. Insofar as the present case is concerned, the period contemplated under sub-rule (2) of rule 23 of the rules comes to an end today, that is, on 15.6.2018. However, sub-rule (3) of rule 23, inter alia, provides that the provisions of rule 17 shall be mutatis mutandis applicable in the case of review. The proviso to rule 17(1)(a) of the rules provides that the Central Government may, in its discretion in special circumstances, extend further the aforesaid period of one year by six months. Thus, there is a power vested in the Central Government, in its discretion, to extend further the period for completing the Sunset Review by six months.
15 Since the power to extend the period for completing the Sunset Review is vested in the Central Government, the question that arises for consideration is as to what course of action this court should adopt in the peculiar facts of this case, wherein the period for concluding the Sunset Review ends at midnight today. Therefore, to prevent any hiatus between the last date for conclusion of the review and the order of extension, an order of extending the period for concluding the Sunset Review is required to be passed today. However, even if the Central Government were to be directed by this court to consider and pass and order under the first proviso to rule 17(1)(a) of the rules, it would not be possible for the Central Government to pass any such order today itself.
16 At this juncture reference may be made to the decision of the Supreme Court in The Comptroller and Auditor General of India, Gian Prakash, New Delhi v. K.S. Jagannathan (supra), wherein it has been held thus:
Page 12 of 16C/SCA/14202/2017 IA ORDER "There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
17 In view of the principles propounded in the above decision, in an appropriate case, in order to prevent injustice resulting to the concerned parties, it is permissible for this court to itself pass an order or give directions which the Page 13 of 16 C/SCA/14202/2017 IA ORDER Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.
18 Examining the facts of the present case in the aforesaid backdrop, a Division Bench of this court vide its judgment and order dated 11.6.2018 passed in Special Civil Application No.14202 of 2017 and allied matters, has held that the second respondent Designated Authority could not have annulled the Sunset Review and was required to bring the Sunset Review to its logical conclusion. The court has, accordingly, set aside the annulment and directed the respondents No.1 and 2 to do the needful for bringing the Sunset Review to its logical end strictly in accordance with law.
19 For the purpose of bringing the Sunset Review to its logical end, it goes without saying that it would have to be decided on merits. Therefore, if the period for completing the Sunset Review is not extended, the judgment and order dated 11.6.2018 passed by this court would be rendered ineffective. Under the proviso to rule 17(1)(a) of the rules, the Central Government, in its discretion, in special circumstances, can extend further the period of one year by six months. Thus, the Central Government is required to exercise discretion in special circumstances. Having regard to the findings recorded by this court in the judgment and order dated 11.6.2018 and the directions issued by it, this court is of the view that special circumstances as contemplated under the first proviso to rule 17(1)(a) of the rules are made out warranting exercise of discretion there under.
20 As noted hereinabove, on behalf of the respondent Page 14 of 16 C/SCA/14202/2017 IA ORDER authorities, it had been stated that no application for extension of the period for concluding the review would be made by the Designated Authority under the proviso to rule 17(1)(a) of the rules till an opinion of the Ministry of Law has been obtained which would render the judgment and order dated 11.6.2018 passed by this High Court ineffective; the Central Government has not responded to the representation made by the petitioner for extending the period for concluding the review under; unless an order extending the period for concluding the review is made under the first proviso to rule 17(1)(a) of the rules today itself, the period for concluding the review would come to an end and the matter would be rendered infructuous; even if this court passes an order today directing the Central Government to pass an order under the first proviso to rule 17(1)(a) of the rules, it would not be possible for the Central Government to pass such order today itself. Therefore, having regard to the peculiar facts of this case and the adamant approach adopted by the Designated Authority in not seeking extension of the period for concluding the review till an opinion of the Ministry of Law is obtained on the specious ground that this would be construed as the Designated Authority having accepted such judgment and thereby not respecting the judgment and order passed by this court, this court is of the view that the interests of justice requires that powers under the first proviso to rule 17(1)(a) of the rules be exercised and the period for completing the Sunset Review be extended by a period of six months. In the opinion of this court, with due deference to the judgment of this court, the respondent authorities ought to have extended the period for concluding the review subject to their right to challenge the judgment and order passed by this court, which would have taken care of the Page 15 of 16 C/SCA/14202/2017 IA ORDER peculiar situation that has arisen in the present case.
21 In the light of the above discussion, the application succeeds and is, accordingly, allowed. The period for concluding the Sunset Review regarding the imports from the subject countries is hereby extended for a further period of six months under the first proviso to rule 17(1)(a) of the rules. Rule is made absolute accordingly with no order as to costs.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) B.U. PARMAR Page 16 of 16