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Mandate for a sunset review:

22. Rule 23 of the Rules has to be read and appreciated in the context of Rule 4(1)(e). What these two rules lay down is the statutory duty of the Designated Authority 'to review the need for continuance of anti-dumping duty'. The procedure for carrying out that review is prescribed in the various rules mentioned in Rule 23(3). The alternative contention of the learned Additional Solicitor General that Rule 23 has limited application, in as much as it does not concern itself with a sunset review, is also untenable in view of the broad statutory duty on the Designated Authority 'to review the need for continuance of anti-dumping duty' the word 'continuance' has reference both to a mid-term review and to a (sunset) review. Were it not so, acceptance of the restrictive interpretation given by the learned Additional Solicitor General would mean that even though the concept of a sunset review is recognized, neither the Act nor the Rules provide for a procedure for carrying out a sunset review - a situation which is surely not intended either by Parliament or the Central Government.

32. Therefore, our conclusion on the first part of the issue before us is that there is a well-recognized and accepted concept of a sunset review; that there is a statutory requirement of a sunset review recognized both by the Act and the Rules; the sunset review may be conducted by the concerned authorities suo motu or an application made by the domestic industry.

Is a sunset review mandatory:

33. The final issue is whether the law mandates a sunset review, if a request is so made by an aggrieved domestic industry. Given the view expressed by the Supreme Court in Reliance Industries, it is difficult to answer the question in the negative. In this regard, it is also necessary to ask the question: is it possible for the Central Government to conclude, without any review, that withdrawal of the anti-dumping duty would not lead to continuation or recurrence of dumping and injury to the domestic industry? Surely, the answer to this must be in the negative. At worst, at least a perfunctory review would have to be carried out by the Central Government before forming an opinion on the necessity of continuing, or not continuing, with the anti-dumping duty. The Rules, however, mandate that the review should not be perfunctory (and advisedly so) but should be meaningful, purposive and necessarily elaborate, and it with this intention that Rule 23(3) of the Rules has been enacted, by the Central Government itself.? It must be appreciated that the rationale for introducing anti-dumping duties is the protection of the domestic industry and this protection must not be taken lightly because dumping can very easily destroy the fabric of our policy of industrialization and in a given situation destroy our domestic industry.

34. It is one thing to say that a sunset review may result in a decision not to continue the anti-dumping duty and another thing to say that a sunset review is not required to be carried out. Unfortunately, the stand taken by the Central Government in its counter affidavit is to the latter effect.

35. There are two aspects to a sunset review. It may be on the initiative of the concerned authorities (suo motu sunset review) or on a request made by the domestic industry. In the present case, we are not concerned with a suo motu review and, therefore, we make no comment on the parameters laid down for such a review. However, in so far as a request is concerned, it must be made by or on behalf of the domestic industry and it cannot be casual or based on perfunctory material? it must be a duly substantiated request (as mentioned in Article 11.3 of the Implementation Agreement). Indeed, even the counter affidavit highlights the necessity of a duly substantiated request. However, what the counter affidavit seems to suggest is that the request made in the present case was not 'duly substantiated' and that is why it was rejected. Unfortunately, that is not what the Designated Authority states in its rejection letter dated 21st December, 2005, the relevant extract of which has been quoted by us earlier. The order dated 20th July, 2006 passed by the Central Government is, no doubt, far more elaborate, but that rejects on merits the 'initiation of review' and even that does not seem to have been passed in conformity with the procedures laid down in Rule 23(3) read in conjunction with the other Rules. In other words, a two stage procedure seems to have been introduced by the Respondents' first, taking a decision whether a sunset review should at all be initiated and secondly, if such review is decided to be undertaken then deciding on merits if the anti-dumping duty requires to be continued. The contention is that the request for a sunset review in the instant case has been rejected by the Designated Authority at the first stage itself. Therefore, the question of following the procedure mentioned above for taking a decision on merits did not arise and, in any event there is nothing according to the learned Additional Solicitor General that necessitates following the procedure laid down in Rule 23 of the Rule.

In the counter affidavit filed by the Respondents, it has been stated that the opinion of the Law Ministry is 'still under examination'.

39. In this context, we may add only two more reasons that suggest that a sunset review is mandatory. Firstly, the Trade Notice dated 5th January, 2004 lays down a time frame within which a request should be made for continuing with the anti-dumping duty. Secondly, even Article 11.3 of the Implementation Agreement mentions that a suo motu initiative or a duly substantiated request should be made within a reasonable period of time prior to the termination of the period of five years for which the definitive anti-dumping duty is imposed. More significantly, this Article also says that, 'The duty shall remain in force pending the outcome of such a review.' The cumulative effect of this is that a sunset review is required to be conducted within a limited time frame and if it is not concluded by then, the anti-dumping duty levied shall remain in force for a period of one year more in terms of the second proviso to Section 9A(5) of the Act. However, in a case like the instant one where even that period has run out, and the sunset review has not concluded, some other interim arrangement has to be put in place till the conclusion of such review. These requirements, in our opinion, point to the mandatory nature of a sunset review.