Gujarat High Court
Dcw Limited vs Union Of India & 6 on 31 July, 2017
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/14202/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14202 of 2017
With
SPECIAL CIVIL APPLICATION NO. 14203 of 2017
TO
SPECIAL CIVIL APPLICATION NO. 14207 of 2017
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DCW LIMITED,....Petitioner+
(s)
Versus
UNION OF INDIA & 6....Respondent(s)
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Appearance:
Special Civil Application Nos.14202 and 14203 of 2017:
Mr Saurabh Soparkar, Senior Advocate assisted by Shri Gaurav S
Mathur, Shri Rajesh Sharma, Ms Reena Khair and Mr Abhishek
Shah, advocate for the petitioners
Mr S.V. Raju, Senior Advocate, assisted by Mr Pramod Rai, Mr
Vishal K Sevak and Mr Bhadrish Raju, for respondent no.4
Mr Balbir Singh, Senior Advocate, assisted by Mr Devnath Somnath
Shukla, Mr Hardik Modh, for respondent no.7
Special Civil Application Nos.14204 & 14205 of 2017:
Mr Mihir Joshi, Senior Advocate assisted by Shri Gaurav S Mathur,
Shri Rajesh Sharma, Ms Reena Khair and Mr Abhishek Shah,
advocate for the petitioners
Mr S.V. Raju, Senior Advocate, assisted by Mr Pramod Rai, Mr
Vishal K Sevak and Mr Bhadrish Raju, for respondent no.4
Mr Balbir Singh, Senior Advocate, assisted by Mr Devnath Somnath
Shukla, Mr Hardik Modh, for respondent no.7
Special Civil Application Nos.14206 & 14207 of 2017:
Mr Saurabh Soparkar, Senior Advocate assisted by Shri Kuntal
Parikh, Shri Rajesh Sharma, and Ms Reena Khair for the petitioners
Mr S.V. Raju, Senior Advocate, assisted by Mr Pramod Rai, Mr
Vishal K Sevak and Mr Bhadrish Raju, for respondent no.4
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 31/07/2017
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HC-NIC Page 1 of 28 Created On Mon Aug 21 06:09:19 IST 2017
C/SCA/14202/2017 ORDER
COMMON ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) Draft amendment in Special Civil Application No.14204 of 2017 is allowed. The same shall be carried out forthwith.
2 Heard Shri Saurabh Soparkar, learned Senior Advocate, Shri Mihir Joshi, learned Senior Advocate, assisted by Mr Gaurav Mathur, learned advocate for the petitioners and Mr S.V. Raju, learned Senior Advocate, assisted by Mr Vishal Sevak, learned advocate for the respondent no.6 and Shri Balbir Singh, learned Senior Advocate, assisted by Mr Devnath Somnath Shukla, Mr Hardik Modh, for respondent no.7.
3 The challenge in this group of petitions is to order dated 22nd July 2017 whereunder responder no.2 - Designated Authority has given its final finding on Mid Term Review (MTR) recommending withdrawal of the Anti Dumping Duty against the product called 'Soda Ash' and the second order of even date on Sunset Review is annulled/rescinded with immediate effect, as a result whereof the petitioners have been compelled to approach this Court for seeking appropriate reliefs. The reliefs which are prayed for in Special Civil Application No.14204 of 2017 could be considered to be a common reliefs to the extent of final finding dated 27.07.2017 on Mid Term Review as in Special Civil Application No.14203 of 2017, 14205 of 2017, 14206 of 2017 and 14207 of 2017 wherein there was no Sunset Review. Reliefs prayed for in Special Civil Application No.14204 of 2017 reads as under:
Page 2 of 28HC-NIC Page 2 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER "A) This Honble Court be pleased to issue a writ of mandamus or a writ, order or direction in the nature of mandamus or any other appropriate writ, direction or order, and quash and set aside Notification No.15/28/2014-DGAD dated 22.07.2017 and Order dated 22.07.2017 rescinding Sunset Review investigation, issued by the Respondent No.2 and annexed as Annexure I and J hereto; and B) Pending hearing and final outcome of this petition, this Honble Court be pleased to by way of interim and/or adinterim relief stay the operation and implementation of Notification NO.15/28/2014-
DGAD dated 22.07.2017 and Order dated 22.07.2017 rescinding Sunset Review investigation, issued by the Respondent No.2 and annexed as Annexure I and J hereto; and C) Pending hearing and final outcome of this petition, this Hon'ble Court be pleased to by way of interim and/or interim relief direct the Respondent No.3 not to act in pursuance of Notification No.15/28/2014-DGAD dated 22.07.2017 and Order dated 22.07.2017 rescinding Sunset Review investigation, issued by the Respondent No.2; and D) Ex parte, Ad-interim and/or interim relief in terms of Paragraph no.21(B) and (C) be granted.
(E) For Cost;
Page 3 of 28HC-NIC Page 3 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER F) Such other and further orders as this Hon'ble Court deems fit and expedient in the facts of the case be passed."
4 The facts in brief, as could be gathered from the submissions and memo of the petitions, are that the soda ash industry in India is enjoying the protection against anti dumping activities since the year 2012, to be precise, from 3rd July 2012 as there exists a notification under which the protection for a period of five years was offered and given to soda ash industry in India. The said protection was in accordance with law and for nurturing the indigenous industries from onslaught of exporters from other countries.
5 The relevant provision, namely, section 9A of the Custom Tariff Act, 1975 provides for an elaborate procedure for reviewing either at the instance of affected parties or of its own accord Government of India is permitted to take suo motu review of the duty decision. Section 9A of the Customs Tariff Act, 1975 reads as under:
"Section 9A. Anti-dumping duty on dumped articles - (1) Where any article is exported by an exporter or producer from any country or territory (hereafter in this section referred to as the exporting 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 an anti-dumping duty not exceeding the margin of dumping in relation to such article.
Explanation.-For the purposes of this section,-
(a) "margin of dumping" in relation to an Page 4 of 28 HC-NIC Page 4 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER article, means the difference between its export price and its normal value;
(b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-
section (6);
(c) "normal value", in relation to an article, means-
[i] the comparable price, in the ordinary course of trade, for the like article when [destined for consumption] in the exporting country or territory as determined in accordance with the rules made under sub- section (6); or [ii] when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or Page 5 of 28 HC-NIC Page 5 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either-
(a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub-section (6); or
(b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under subsection(6):
Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transhipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin.
[1A] Where the Central Government, on such inquiry as it may consider necessary, is of the opinion that circumvention of anti-dumping duty imposed under sub-section [1] has taken Page 6 of 28 HC-NIC Page 6 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER place, either by altering the description or name or composition of the article subject to such anti-dumping duty or by import of such article in an unassembled or disassembled form or by changing the country of its origin or export or in any other manner, whereby the anti-dumping duty so imposed is rendered ineffective, it may extend the anti-dumping duty to such article or an article originating in or exported from such country, as the case may be.] [2] The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined,-
(a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and
(b) refund shall be made of so much of the antidumping duty which has been collected as is in excess of the anti-dumping duty as so reduced.Page 7 of 28
HC-NIC Page 7 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER [2A] Notwithstanding anything contained in subsection (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under subsection (2),, shall not apply to articles imported by a hundred per cent, export-oriented undertaking unless,-
[i] Specifically made applicable in such notification or such impositions, as the case may be; or [ii] the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India.
Explanation. - For the purpose of this sub- section, the expression "hindered per cent export-oriented undertaking " shall have the meaning assigned to it in Explanation 2 to sub- section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944).
(3) if the Central Government, in respect of the dumped article under inquiry, is of the opinion that-
(I) there is a history of dumping which caused injury or that the importer was, or should have Page 8 of 28 HC-NIC Page 8 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER been, aware that the exported practices dumping and that such dumping would causer injury;and
(ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti-dumping duty liable to be levied, the Central government may, by notification, in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti- dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification.
(4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force.
(5) 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:
Provided that if the Central Government, in a Page 9 of 28 HC-NIC Page 9 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension.
Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.
(6) The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified and for the manner in which the export price and the normal value of and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-
dumping duty.
Page 10 of 28HC-NIC Page 10 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER (6A) The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under sub-section (6)shall be determined on the basis of records concerning normal value and export price maintained, and information provided, by such exporter or producer :
Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.] (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament.
(8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act."
6 The relevant rules, namely, Rule 23 of the Customs Tariff (Identification, assessment and collection of countervailing duty on subsidies articles and for Page 11 of 28 HC-NIC Page 11 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER determination injury) Rules 1996 envisage the parameters and criterion to be gone into by the competent authorities for reviewing and/or imposing anti dumping duty. The relevant rules for the purpose of discussion deserve to be set out for ready reference are set out as under:
"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 casual 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 Page 12 of 28 HC-NIC Page 12 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER further the aforesaid period of one year by six months :
Provided further that in those cases where the designated authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year, [(b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry after considering the principles laid down in the Annexure III to these rules.] (2) The final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information regarding -
(i) the names of the suppliers, or when this is impracticable, the supplying countries involved;
(ii) a description of the product 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 Page 13 of 28 HC-NIC Page 13 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER value;
(iv) considerations relevant to the injury
determination; and
(v) the main reasons leading to the
determination.
(3) The designated authority shall determine an individual margin of dumping for each known exporter or producer concerned of the article under 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 Page 14 of 28 HC-NIC Page 14 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER burdensome and prevent the timely completion of the investigation.
(4) The designated authority shall issue a public notice recording its final findings.
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.:
(2) In cases where the designated authority has selected percentage of the volume of the exports from a particular country, as referred to sub-rule (3) of rule 17, any anti-dumping duty applied to imports from exporters or producers not included in the examination shall not exceed -
(i) the weighted average margin of dumping established with respect to the selected exporters or producers or,
(ii) where the liability for payment of anti-
dumping duties is calculated on the basis of a prospective normal value, the difference between the weighted average normal value of the selected exporters or producers and the export prices of exporters or producers not individually examined :
Page 15 of 28HC-NIC Page 15 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER Provided that the Central Government shall disregard for the purpose of this sub-rule any zero margin, margins which are less than 2 per cent expressed as the percentage of export price and margins established in the circumstances detailed in sub-rule (8) of rule
6. The Central Government shall apply individual duties to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation as referred to in the second proviso to sub-rule (3) of rule 17.
(3) Notwithstanding anything contained in sub-rule (1), where a domestic industry has been interpreted according to the proviso to sub-clause (b) of rule 2, a duty shall be levied only after the exporters have been given opportunity to cease exporting at dumped prices to the area concerned or otherwise give an undertaking pursuant to rule 15 and such undertaking has not been promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question.
(4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the investigation was initiated, the Central Government shall, within forty-five days of the publication of final findings by the designated authority under Page 16 of 28 HC-NIC Page 16 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER rule 17, withdraw the provisional duty imposed, if any.
19. Imposition of duty on non-
discriminatory basis.-
Any provisional duty imposed under rule 13 or an anti-dumping duty imposed under rule 18 shall be on a non-discriminatory basis and applicable to all imports of such articles, from whatever sources found dumped and, where applicable, causing injury to domestic industry except in the case of imports from those sources from which undertaking in terms of rule 15 has been accepted.
23. Review.- [1] Any anti-dumping duty imposed under the provision of section 9A of Section of the Act, shall remain in force, so long as and to the extent necessary, to counteract dumping, which is causing injury.
[1A] The designated authority shall review the need for the continued imposition of any anti-dumping duty, where warranted, on its own initiate or upon request by any interested party, who submits positive information substantiating the need for such review, and a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, where it Page 17 of 28 HC-NIC Page 17 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER 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 or varied and is therefore no longer warranted.
[1B] Notwithstanding anything contained in sub-rule [1] or [1A]. any definitive anti- dumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon an duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to the expiry of that period, that the expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry.
[2] Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review.
(3) The provisions of rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, and 20 shall be mutatis mutandis applicable in the case of review."
7 The interested and affected parties moved the competent authorities for seeking Mid Term Review as envisaged under the provisions of Rule 23, which was initiated as per the provisions contained under Notification dated Page 18 of 28 HC-NIC Page 18 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER 21.07.2015. As stated hereinabove, the total period available to the competent authority to complete this procedure being 12 months, the time was required to be extended, which came to be extended and whereunder the authorities got the time to complete these proceedings latest by September 2016. The said exercise culminated into issuance of disclosure statement dated 14.09.2016, which came to be challenged by the petitioners and other affected industries by way of writ petition being Special Civil Application No.16426 of 2016 and other allied matters being Special Civil Applications Nos.16427 to 16429 of 2016 in which the Court initially granted interim relief under order dated 13th December 2016 in which the authorities were permitted even pass appropriate orders and issue notification, but the same was to be kept in abeyance in light of the fat that those petitions were pending final disposal.
8 Ultimately, those petitions came to be disposed of vide order dated 23.02.2017 and the Court made following observations and directions:
"39.1 Reference was also made to the decision of the Supreme Court in the case of Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd., (1995) 1 SCC 642, wherein it has been held that the period of time fixed for passing an order applies only to the initial order and not to any subsequent order that may have to be passed under the directions given by a statutory authority or by a court in a writ proceeding. The court held that, to hold otherwise would make the powers of courts under Article 226 wholly ineffective.Page 19 of 28
HC-NIC Page 19 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER The court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. 39.2 Keeping in mind the principles propounded in the above decisions, the court having held that the disclosure statements stand vitiated for the detailed reasons set out hereinabove, would be required to set aside the disclosure statements as well as all proceedings pursuant thereto and restore the proceeding to the file of the designated authority for issuance of a fresh disclosure statement in accordance with law keeping in mind the observations made hereinabove."
9 Thus, essentially, the time was granted to the authorities to complete the proceedings from the statement of disclosure and it was expected the purpose was only within two months from the date of receipt of copy of the judgment. As record indicates, the authorities received this order somewhere on 30th March 2017 and pursuant thereto the hearing was fixed on 25th April 2017. Ultimately, the said proceedings had not culminated into any order and the original notification dated 3rd July 2012 was coming to an end on account of lapse of time on 2nd June 2017. Hence, the concerned affected parties like the petitioners mopped the authorities for seeking appropriate review, which is known as Sunset Review for continuing the Anti Dumping Duty on account o reasons mentioned threunder, which request came to be accepted with effect from resultant order dated 16th June 2017 (page 313). The said order contains inter alia the following:
"D. Initiation of Sunset Review Page 20 of 28 HC-NIC Page 20 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER
16. Having satisfied, on the basis of the positive evidence submitted by the domestic industry, substantiating the likelihood of continuation of dumping and recurrence of injury, the Authority hereby initiates an investigation in accordance with Section 9A(5) of the Act read with Rule 23 of Anti-dumping Rules, to review whether cessation of the duty on imports of the subject goods originating in or exported from the subject countries, shall lead to continuation or recurrence of dumping of the subject goods from the subject countries and continuation or recurrence of injury to the domestic industry, and need for continued imposition of the definitive duty in force against the subject goods originating in or exported from the subject countries."
10 Thus, at this stage it deserves to be noted that there is a rival contention on account of the observations of paragraph D as well as in para 7 by both the sides that the said notification of initiation of Sunset Review was after recording a satisfaction which would render the Mid Term Review or OTS infructuous whereas the counsel for the respondent relying upon para 17 contended that the same was specifically made subject to the result of the MTR which was in fact an undertaking and which could not be completed on account of pendency of the litigation before this Court.
11 The petitioners were constrained to approach this Court by way of filing Special Civil Application No.12249 of 2017 and 12251 of 2017 for seeking relief as the time was getting elapsed. During the pendency of those petitions the extension Page 21 of 28 HC-NIC Page 21 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER came in the form of Notification dated 30.6.2012 in which the operative part makes an interesting reading, which reads as under:
"Now, therefore, in exercise of the powers conferred by subsection (1) and (5) of section 9A of the Customs Tariff Act read with rules 18 and 23 of the Anti dumping Rules, the Central Government hereby makes the following amendment in the Notification of the Government of India, in the Ministry of Finance (Department of Revenue) No.34/2012-Customs(ADD), dated the 3rd July 2012 published in the Gazette of India, Extraordinary, Part-II, section 3 subsection (iii) vide No.GSR 528 (E) dated the 3rd July 2012, namely, In the said Notification, in paragraph 2 and before the explanation, the following shall be added, namely:
"3. Subject to the final decision of the Hon'ble High Court of Gujarat in Special Civil Applications No.16426 of 2016 and 16248 of 2016, this notification, unless revoked earlier, shall remain in force upto and inclusive of the 2nd July 2018."
12 Thus, the Notification of 3rd July 2012 got extended up to 2nd July 2018 or till it is revoked by another order or notification. It is requierd to be noted at this stage that this notification is issued by the Governmetn of India, which is the competent authority and not respondent no.2 who has no power to issue any such extension notification.
Page 22 of 28HC-NIC Page 22 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER 13 The final findings have been rendered on 22nd July 2017 under which the MTR is accepted and the withdrawal of Anti Dumping Duty is recommended. By virtue of provisions of law the same was to be accepted by the Union of India in terms of Rule 18(4) of the Rules. Respondent no.1 issued one more order of even date in which the Sunset Review was revoked and annulled which resulted into filing of the present petitions for the reasons and grounds stated thereunder.
14 Learned counsel have invited the court's attention to the averments made in these petitions and the grounds raised in the petitions and it was contended that the entire exercise of continuing Mid Term Review was unfortunately de hors the provisions of law inasmuch as the time limit prescribed by the statute and the pendency of the litigation and the time consumed during the pendency of Special Civil Application Nos.16426 of 2016 to 16429 of 2016 could indicate that the respondents could have completed the entire procedure within the stipulated time. The respondents did not have any authority or competence in embarking upon the Mid Term Review and continuing the same without the said time limit has expired without there being any specific extension of the same. At this stage, it was pointed out that extension application being MCA No.2027 of 2017 has been filed only on 21.07.20176 and without waiting for outcome on that application in terms of condoning of the lapse of time the authority chose to proceed with fastening of final orders dated 22.7.2017.
15 Learned counsel for the petitioners have also placed on record, with the copy to the other side the elaborate table of comparison indicating that the finding in disclosure statement Page 23 of 28 HC-NIC Page 23 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER and the final finding clearly indicate the deliberate non advertance to greater aspects and important factors have been overlooked for the reasons best known to the authorities. The counsel invited the court's attention to the elaborate procedure and submitted that the Mid Term Review presupposes the review undertaken in the mid term and not after the term is over. In the instant case the term of the entire notification if not extended by the notification the same would have expired on 2nd July 2017 and in that view of the matter the term review could be said to have emanated from no authority at law which in other words could be said to be law of patent jurisdiction to embark upon and complete the procedure especially when the competent authority after recording the satisfaction qua the requirement of Sunset Review issued the notification and procedure has started.
16 Mr Mihir Joshi, learned advocate for the petitioners has contended that once respondent no.2 has issued a Disclosure Statement containing the essential facts under consideration, the Respondent no.2 is not entitled to change these facts under consideration unless it is established by an interested party that these essential facts suffer from palpable errors or some clerical or mathematical errors. He further submitted that respondent no.2 has merely changed analysis and concluded different facts in the final findings on the basis of highly pick and choose method. He further submitted that disclosure statement states that some of the interested parties have contended that optimum capacity utilization of soda ash plants is 80% only when no such statement was ever made by the interested parties. Even if any such statement is made by any interested party, it tantamount to consideration of new information at the stage of final finding without considering Page 24 of 28 HC-NIC Page 24 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER the same at the stage of final finding. Thus, the impugned final finding is in violation of principles of natural justice.
17 Learned counsel appearing on caveat on behalf of respondent no.4 and 7 submitted that the time limit could not be said to have expired in view of the fact that original 18 months, though said to be mandatory, in the instant case, on account of pendency of litigation, the time elapsed needs to be taken into consideration for coming to the conclusion that there exists time which the Court in its order unfortunately curtailed to two months and the Court has not taken into consideration the entire period.
18 Learned counsel appearing on caveat on behalf of respondent no.4 and 7 further invited the court's attention to the elaborate findings recorded to justify that the petitioners and other similarly situated parties are out to perpetuate their profiteering only as could be seen from the findings recorded and the users are likely to affect on account of continuance of anti dumping duty. As on date when the Mid Term Review is accepted and the final findings are recorded the Sunset Review lapses and the Government of India will be having no other option but to accept the same and pass formal order in the form of notification withdrawing the anti dumping duty.
19 Learned counsel heavily relied upon the alternative remedy available in terms of the appeal and submitted that the fine facts which have been sought to be canvassed on either side may not be gone into by this Court under Article 226 of the Constitution of India and when there is availability of alternative remedy this Court may not entertain these Page 25 of 28 HC-NIC Page 25 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER petitions and let the petitioners be relegated to the authorities.
20 Learned counsel for respondent no.4 specifically canvassed a submission that these petitions are premature as there is an order yet to be made, may be a formal order, but the order has to be made by the Government of India and therefore at this stage rushing to this court with this kind of prayers and objecting to the time would not be in the fitness of things and the court may view this to be an act of seeking urgent orders without there being any opportunity to other side.
21 We have heard learned counsel for the parties and perused the documents on record. We are, prima facie, of the considered view that what has been canvassed on behalf of the petitioners has substance inasmuch as prima facie we are of the clear opinion that respondent no.2 could not have continued with Mid Term Review once the decision to undertake Sunset Review was declared and the machinery was set into motion pursuant to the order dated 16.6.2017. This order is made after the judgment of this Court was pronounced and received by the authorities I.e. on 23.02.2017 which was received on 30.03.2017 despite there being an order available with the authorities and despite there being a time limit existed in it and if the proceedings are not completed within the time limit then the authorities after having recording Sunset Review then a question arises as to how the authorities are justified in simultaneously proceeding with both the review. In our view, the same was not permissible and it deals a serious blow to its competence to Page 26 of 28 HC-NIC Page 26 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER undertake and continue with Mid Term Review without there being any clear mandate from the court after the time granted by the Court had elapsed. Apart from that, we are also of the prima facie view that the concerned authorities could have approached the court which it did approach only on 7.7.2017 for seeking extension. The Court is therefore of the opinion that the matter deserves consideration.
22 Let there be notice for final disposal returnable on 21.08.2017. The balance of convenience naturally appears to be in favour of the petitioners at this stage as the State i.e. Government of India is yet to exercise its discretion whatever it has under law in accepting and issuing the order of final findings challenged in these petitions. This prima facie satisfaction of the Court is essentially based upon the finding of the Court that there appears to be no jurisdictional facts available with the authorities which could have permitted the authorities to issue final finding. As against this, as submitted by learned counsel for respondent no.7, the affected parties will have right to seek a relief in accordance with law once the MTR findings have been culminated into issuance of the order by the Government of India. Therefore, no prejudice is likely to be caused to the respondents in case if the status quo as on date is ordered to be continued under which the Union of India is restrained from acting upon the order dated 22.7.2017 under which the final findings have been rendered and Sunset Review is annulled.
23 As this order is passed in absence of respondents nos.1 to 3, it goes without saying that it would be open to them for vacation and/or modification of the this order by appropriate Page 27 of 28 HC-NIC Page 27 of 28 Created On Mon Aug 21 06:09:19 IST 2017 C/SCA/14202/2017 ORDER application with a copy to the other side even prior to the returnable date.
Direct Service is permitted.
(S.R.BRAHMBHATT, J.) (A.G.URAIZEE, J.) mohd Page 28 of 28 HC-NIC Page 28 of 28 Created On Mon Aug 21 06:09:19 IST 2017