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A.K. SIKRI, J.

On the demand raised by the indigenous industry, Civil Appeals arising out of SLP (C) Nos. 29268-29269 of 2014  original/ordinary investigation concerning imports of Acrylonitrile Butadiene Rubber (hereinafter referred to as the ‘product’) was taken up sometime in March 1996 for the purpose of levy of anti-dumping duty on the said import from Korea RP and Germany. The primary finding to this effect came to be published on July 17, 1997 whereby the Designated Authority recommended definitive anti-dumping duty. That resulted into issuance of Notification dated July 30, 1997 by the Central Government whereby anti-dumping duty was imposed under Section 9A of the Customs Tariff Act, 1975 (for short, the ‘Act’) on the said product. Before the expiry of five years period during which anti-dumping duty remains operative, the first sunset review investigation was initiated by the Authority which recommended continued levy of anti-dumping duty. It resulted into another Notification dated October 10, 2002. As per this Notification, the anti-dumping duty was to remain in force till October 10, 2007. Just before that, on October 08, 2007, second sunset review investigation was initiated by the Authority, which resulted in recommendation dated October 04, 2008 for continued imposition of anti-dumping duty on imports of the product from Koreal RP. On the basis of this recommendation, another Notification dated January 02, 2009 was issued by the Civil Appeals arising out of SLP (C) Nos. 29268-29269 of 2014  Central Government, which was to remain in force till January 01, 2014. On December 31, 2013, that is one day before the aforesaid Notification was to lapse, third sunset review investigation in respect of duty imposed on the imports of the subject product from Korea RP was initiated. Pursuant to the initiation of the said sunset review investigation, the Central Government issued Notification No. 6/2014-Customs dated January 23, 2014 thereby extending the validity of duty by one year, i.e. up to January 01, 2015, pending investigation. This was done in exercise of powers contained in second proviso to sub-section (5) of Section 9A of the Act. The aforesaid Notification dated January 23, 2014 came to be challenged by filing writ petitions by M/s. Kumho Petrochemicals Company Limited (respondent No.1 herein), who is a purchaser and exporter of the product from Korea RP, as well as by Fairdeal Polychem LLP (an importer of product from Korea RP). The High Court has, vide impugned judgment dated July 11, 2014, decided both the writ petitions. It has partly allowed these writ petitions holding that the order of continuation of anti-dumping duty, made after expiry of the duty period, is bad in law. However, another contention of the two writ petitioners, namely, the initiation of the anti-dumping duty investigation was also bad in law on the Civil Appeals arising out of SLP (C) Nos. 29268-29269 of 2014  ground that public notice of initiation was not published in the Official Gazette before January 01, 2014, i.e., before the expiry of the anti-dumping duty at the end of five years period, has not been accepted by the High Court. Repelling this argument, it is held by the High Court that public notice of initiation need not be published in the Official Gazette and that public notice is not a pre-requisite for initiation of an investigation, which can be issued within a proximate period of time after its initiation. Union of India and Automotive Manufacturers Association in India felt aggrieved by that part of the judgment whereby extension of anti-dumping duty has been allowed to be bad in law. Their appeals challenge that part of the order. On the other hand, writ petitioners are not satisfied with the outcome of the second issue about the initiation of anti-dumping duty. This part is challenged by these two writ petitioners. M/s. Omnova Solution (Pvt.) Limited is the other appellant which is also a domestic industry and has challenged the orders by filing two writ petitions thereby supporting the stand of Union of India and Manufacturers Association. It is for this reason all these appeals are heard analogously, which we propose to decide by this common judgment.

7) Having noted the material dates, the relevant text of the Notifications as well as the statutory scheme provided under Section 9A of the Act, we may now formulate the two questions that arise for consideration in these appeals: (1) After the second sunset review investigation, Notification dated January 02, 2009 was issued extending the anti-dumping duty that was imposed by the initial Notification. This Notification was valid for a period of five years, i.e. up to January 01, 2014. Though, the third sunset review was initiated and notification dated 31 st December, 2013 was issued which was before the expiry of five years period, i.e. January 01, 2014, according to the writ petitioners, this Notification proposing the review was made public only on January 06, 2014. As per them, the date of reckoning would, therefore, be publication of the Notification, namely, January 06, 2014, which has to be taken into consideration for setting into motion the sunset review. Since it happened after the expiry of original Notification, the exercise of undertaking sunset review was impermissible. Therefore, the first question is:

10) It is a common case that such a sunset review is to initiate before the expiry of five years period mentioned in the Notification. In the present case, no doubt, the Notification which is passed initiating sunset review is dated December 31, 2013. Though we have reproduced relevant portion of this Notification, a perusal of the entire Notification reveals that it is a detailed Notification running into almost fifteen pages wherein history of original investigation concerned the imports of the product in question from Korea RP and Germany is traced out leading to the findings that were arrived at by the Authority on the basis of which anti-dumping duty was imposed on the subject goods vide Notification dated July 30, 1997. This Notification thereafter deals with the second sunset review which led to passing of further Notification dated January 02, 2009. Thereafter, it mentions that M/s. Omnova Solution (Pvt.) Limited had filed a duly substantiated application on November 11, 2013 before the Authority alleging likelihood of continuation of recurrence of Civil Appeals arising out of SLP (C) Nos. 29268-29269 of 2014  dumping of the subject goods, originating in or exported from Korea RP, and a consequent injury to the domestic market and requested for another review. The Notification thereafter deals with the situation of domestic industry, product in question and satisfaction of the Authority that a case was made out for initiation of sunset review investigation to review the need for continued imposition of anti-dumping duty in force in respect of the product in question. The Notification thereof calls upon the interested parties to submit relevant information in the prescribed form and manner and furnish their views to the Authority for its consideration. Thus, a detailed exercise was done taking into account all the relevant factors in forming the opinion that the sunset review was desirable.

30) From the scheme of Section 9A of the Act, it becomes clear that 12 (1999) 3 SCC 422 13 (1971) 2 SCC 54 Civil Appeals arising out of SLP (C) Nos. 29268-29269 of 2014  though the Notification for anti-dumping duty is valid for a maximum period of five years, the said period can be extended further with the issuance of fresh notification. For this purpose, it is necessary to initiate the review exercise before the expiry of the original notification, which review is commonly known as ‘sunset review’. There may be situations where the sunset review is undertaken but the review exercise is not complete before the expiry of the period of original notification. It is because of the reason that the exercise of sunset review also demands complete procedure to be followed, in consonance with the principles of natural justice that was followed while imposing the anti-dumping duty in the first instance. To put it otherwise, this exercise contemplates hearing the views of all stakeholders by giving them adequate opportunity in this behalf and thereafter arriving at a conclusion that the continuation of the anti-dumping duty is justified, otherwise injury to the domestic industry is likely to continue or reoccur, if the said anti-dumping duty is removed or varied. Since this exercise is likely to take some time and may go beyond the period stipulated in the original notification imposing anti-dumping duty, in order to ensure that there is no vacuum in the interregnum, second proviso to sub-section (5) of Section 9A of the Act empowers the Central Government to continue the Civil Appeals arising out of SLP (C) Nos. 29268-29269 of 2014  anti-dumping duty for a further period not exceeding one year, pending the outcome of such a review. The question, however, is as to whether this extension to fill the void that may be created during the pendency of the sunset review is exercised is automatic, once the decision is taken to have sunset review of the anti-dumping duty or the continuation of such an anti-dumping duty has to be by a proper notification. As noted above, the High Court has held that second proviso is only an enabling provision and, therefore, power vested in the Central Government under the said proviso has to be specifically exercised, without which the anti-dumping duty cannot continue to remain in force with the lapse of original notification.