Madras High Court
M/S.Pt.South Pacific Viscose vs The Union Of India on 9 May, 2025
Author: C.Saravanan
Bench: R.Suresh Kumar, C.Saravanan
2025:MHC:1368
W.P.Nos.22819, 22820, 22830 and 22834 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 30.10.2024
Pronounced On 09.05.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.Nos.22819, 22820, 22830 and 22834 of 2022
and
W.M.P.Nos.21845, 21846, 21858 of 2022
M/s.PT.South Pacific Viscose,
A Company established under the laws of Indonesia
Having registered office at
Sampoerna Strategic Square,
South Tower,
22nd Floor, JI, Jend Sudirman Kav,
45 – 46 Jakarta – 12930, Indonesia
Represented by its Power of Attorney
Mr.Ravichandran Rangaraju ... Petitioner in all W.Ps
Vs.
1.The Union of India,
Represented by its Secretary,
Ministry of Finance,
Department of Revenue,
North Block,
New Delhi – 110 001.
2.The Directorate General of Trade Remedies,
Represented by the Designated Authority,
Having their address at Ministry of
Commerce and Industry,
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
5 – Parliament Street,
Jeevan Tara Building,
New Delhi – 110 005.
3.The Association of Man-Made Fibre
Industry of India,
th
5 Floor, Resham Bhavan,
78, Veer Nariman Road,
Mumbai – 400 020. ... Respondents in all W.Ps
Prayer in W.P.No.22819 of 2022: Writ Petition filed under Article 226 of
the Constitution of India, for issuance of a Writ of Certiorari, to call for the
records of the Common Order in Anti Dumping Appeal Nos.51490 of 2021
and 50570 of 2022 dated 19.05.2022 passed by the Principal Bench of
CESTAT, New Delhi and quash the same.
Prayer in W.P.No.22820 of 2022: Writ Petition filed under Article 226 of
the Constitution of India, for issuance of a Writ of Certiorari, to call for the
records of the Order in Anti Dumping Appeal No.50571 of 2022 dated
19.05.2022 passed by the Principal Bench of CESTAT, New Delhi and
quash the same.
Prayer in W.P.No.22830 of 2022: Writ Petition filed under Article 226 of
the Constitution of India, for issuance of a Writ of Certiorari, to call for the
records of the Sunset Review Initiation Notification No.07/03/2021-DGTR
dated 22.02.2021 and all subsequent proceedings including the Final
Findings Notification No.07/03/2021-DGTR dated 31.07.2021 issued by the
Respondent No.2 and quash the same to the extent challenged herein as
being without the authority of law.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
Prayer in W.P.No.22834 of 2022: Writ Petition filed under Article 226 of
the Constitution of India, for issuance of a Writ of Declaration, to declare
that no Anti-Dumping Duty can be levied by the Respondents on the
Viscose Staple Fibre exported from Indonesia post 26.07.2015 in terms of
the law laid down by the Hon'ble Supreme Court in UOI Vs. Kumho
Petrochemicals Company Limited, 2017 (351) E.L.T. 65 (SC).
For Petitioner : Mr.Karthik Sundaram
(In all W.Ps)
For Respondents :
(In all W.Ps)
For R1 : Mr.A.P.Srinivas
Senior Standing Counsel
For R2 : Mr.K.Srinivasamurthy
Central Government Standing Counsel
For R3 : Mr.R.Parthasarathy, Senior Counsel
for Mr.Rahul Balaji
COMMON ORDER
C.SARAVANAN, J.
By this Common Order, all these four Writ Petitions are being
disposed of.
2. The Petitioner has prayed for the following reliefs in the respective
Writ Petitions as detailed below:-
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022Table No.1:-
Sl. Writ Petition Prayer
No.
1 W.P.No.22819 of 2022 To call for the records of the Common
Order in Anti Dumping Appeal Nos.
51490 of 2021 and 50570 of 2022 dated
19.05.2022* passed by the Principal Bench
of CESTAT, New Delhi and quash the
same.
2 W.P.No.22820 of 2022 To call for the records of the Order in Anti
Dumping Appeal No.50571 of 2022 dated
19.05.2022 passed by the Principal Bench
of CESTAT, New Delhi and quash the
same.
3 W.P.No.22830 of 2022 To call for the records of the Sunset Review
Initiation Notification No.07/03/2021-
DGTR dated 22.02.2021 and all
subsequent proceedings including the Final
Findings Notification No.07/03/2021-
DGTR dated 31.07.2021 issued by the
Respondent No.2 and quash the same to the
extent challenged herein as being without
the authority of law.
4 W.P.No.22834 of 2022 To issue a Writ of Declaration that no Anti-
Dumping Duty can be levied by the
Respondents on the Viscose Staple Fibre
exported from Indonesia post 26.07.2015
in terms of the law laid down by the
Hon’ble Supreme Court in UOI Vs.
Kumho Petrochemicals Company
Limited, 2017 (351) E.L.T. 65 (SC).
* Common Final Order No. 50427 of 2022 dated 19.05.2022
3. The Petitioner had filed W.P.No.22825 of 2022 along with the
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aforesaid Writ Petitions. The said Writ Petition in W.P.No.22825 of 2022
was filed to quash the Final Findings No.15/09/2015-DGAD dated
08.07.2016 of the 2nd Respondent and the Customs Notification
No.43/2016-Customs (ADD) dated 08.08.2016 issued by the 1st
Respondent. The prayer in W.P.No.22825 of 2022 reads as under:-
“to call for the records of the Final Findings dated
08.07.2016 issued by the second respondent and the
consequent Customs Notification No.43/2016-Customs
(ADD) dated 08.08.2016 issued by the first respondent and to
quash the same.”
However, the same was ‘dismissed as withdrawn’ vide Order dated30.10.2024.
SUBJECT MATTER OF CHALLENGE IN THESE WRIT
PETITIONS:-
4. In W.P.No.22819 of 2022, the Petitioner has actually challenged
the Final Order No. 50427 of 2022 dated 19.05.2022 in Anti Dumping
Appeal Nos. 51490 of 2021 and 50570 of 2022 passed by the Principal
Bench of CESTAT, New Delhi (hereinafter referred to as the ‘Appellate
Tribunal’).
5. Final Order No. 50427 of 2022 dated 19.05.2022 is a common
order passed by the Appellate Tribunal. It encapsulates of the following
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022Anti-Dumping Appeals filed by the Writ Petitioner, the 3rd Respondent and
other persons as detailed below:-
Table No.2:-
S.No. Anti-Dumping Name of the Appellant Final Order
Appeal No. No.
1 50570 of 2021 PT South Pacific Viscose, Indonesia* 50427 of 2022
2 51490 of 2021 Association. of Man Made Fibre Industry of dated
India # 19.05.2022
3 51832 of 2021 Southern India Mills Owners Association
4 51833 of 2021 Indian Spinners Association
5 51834 of 2021 Indian Man made Yarn Manufacturers
Association
6 51868 of 2021 Tamil Nadu Spinning Mills Association
7 51869 of 2021 Pallava Taxtiles Private Limited
8 51872 of 2021 PT Asia Pacific Rayon
* The Writ Petitioner
# The 3rd Respondent
6. In the aforesaid Anti Dumping Appeals at S.Nos. 1, 2 and 3 of the
above Table, the parties named therein had challenged the Final Findings
No.7/3/2021 DGTR dated 31.07.2021 of the 2nd Respondent, Designated
Authority and Customs Notification No.44/2021-Customs (ADD) dated
12.08.2021. The Appellate Tribunal vide Final Order No. 50427 of 2022,
disposed various appeals filed by the 3rd Respondent and others arising out
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022of aforesaid notifications as stated in the above Table.
7. Operative portion of the aforesaid Final Order No. 50427 of 2022
dated 09.05.2022 of the Appellate Tribunal reads as under:-
“89. In the result, for all the reasons stated above,
i. Anti-Dumping Appeal No.51490 of 2021 is allowed to the extent
that the designated authority shall reexamine and give a fresh
finding as to whether cessation of anti-dumping duty would likely
lead to continuation or recurrence of injury so as to warrant
imposition of anti-dumping duty for a further period of five
years. The final findings dated 30.07.2021* of the designated
authority, therefore, stand modified to this extent. The final
findings shall thereafter, be submitted to the Central Government
for further action in accordance with the provisions of the Tariff
Act;
ii. Anti-Dumping Appeal Nos.51832 of 2021, 51833 of 2021, 51834
of 2021, 51868 of 2021, 51869 of 2021, 51872 of 2021 and 50570
of 2022 are dismissed.”
(* actually, 31.07.2021)
8. In W.P.No.22820 of 2022, the Petitioner has actually challenged the
Final Order No. 50435 of 2021 dated 19.05.2022 in Anti Dumping Appeal
No.50571 of 2022. Anti Dumping Appeal No.50571 of 2022 was filed by
the Writ Petitioner against the Final Findings No.15/09/2015-DGAD dated
08.07.2016 issued by the 2nd Respondent, Designated Authority and
Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016
issued by the 1st Respondent. The details of which are as follows:-
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022S.No. Anti- Final Order Name of the Appellant
Dumping No.
Appeal No.
1 50571 of 2022 50435 of The Writ Petitioner, the PT South Pacific
2021 Viscose, Indonesia
9. By the Final Finding in Notification No.15/9/2015-DGAD dated
08.07.2016, the 2nd Respondent/Designated Authority concluded as
follows:-
i. subject goods have been exported to
India from the subject Countries below
its normal value;
ii. domestic industry has suffered injury;
iii. there is a likelihood of recurrence of
dumping and injury in case of
cessation of anti-dumping duties.
10. Pursuant to Notification No.15/9/2015-DGAD dated 08.07.2016
of the 2nd Respondent/Designated Authority, impugned Notification
No.43/2016-Customs (ADD) dated 08.08.2016 was issued by the 1st
Respondent. Paragraph 2 of the said Notification reads as under:-
“2. The anti-dumping duty imposed under this notification shall be
effective for a period of five years (unless revoked, superseded or
amended earlier) from the date of publication of this notification in the
Official Gazette and shall be paid in Indian currency.
Explanation.-
For the purposes of this notification, rate of exchange applicable
for the purposes of calculation of such anti-dumping shall be the rate
which is specified in the notification of the Government of India, in the
Ministry of Finance (Department of Revenue), issued from time to time, in
exercis of the powers conferred by Section 14 of the Customs Act, 19628/87
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022(52 of 1962), and the relevant date for the determination of the rate of
exchange shall be the date of presentation of the bill of entry under
Section 46 of the said Customs Act.”
11. Operative portion of Final Order dated 19.05.2022 in Anti-
Dumping Appeal No. 50571 of 2022 passed by the Appellate Tribunal
reads as under:-
“31. In a sunset review, a notification is issued by the Central
Government exercising powers under the first proviso to section 9A(5) of
the Tariff Act, unlike the powers that are exercised by the Central
Government under the second proviso to section 9A(5) of the Tariff Act
for continuing the anti-dumping duty during the pendency of a sunset
review for a maximum period one year. There is no requirement under the
first proviso to section 9A(5) of the Tariff Act that the Central Government
should issue the notification only during the lifetime of the earlier
notification imposing anti-dumping duty. This aspect was considered by
the Supreme Court in paragraph 33 of the judgment rendered in Kumho
Petrochemicals. The Supreme Court observed that even if the review
exercise is not completed within the extended period of one year under the
second proviso, the effect would be that after lapse of one year there
would not be any anti-dumping duty even if the review is pending. In such
a situation it is only after the review exercise is completed and the Central
Government forms an opinion that cessation of such duty is likely to lead
to continuation or recurrence of dumping an injury, it can issue a
notification for imposition of duty. The Supreme Court emphasized that
the vacuum would be only during the interregnum beyond the period of
one year and till the issuance of fresh notification by the Central
Government. It, therefore, follows that there is no requirement that a
notification has to be issued by the Central Government under the first
proviso to section 9A(5) of the Tariff Act only during the lifetime of the
earlier notification imposing anti-dumping duty for a period of five years.
32. It also needs to be noted that the final findings dated
08.07.2016 of the designated authority and the consequential notification
dated 08.08.2016 issued by the Central Government continuing the anti-
dumping duty for a period of 5 years was assailed in an Anti-Dumping
Appeal filed by Tangshan Sanyou Group Hong Kong International Trade
Co. Ltd. The exporters from Indonesia were also impleaded as
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respondents. This appeal was dismissed by the Tribunal by a detailed
order dated 24.01.2017 and the notification dated 08.08.2016 issued by
Central Government was upheld. This decision is reported in 2017 (349)
E.L.T. 667 (Tri.-Del.). The relevant paragraphs 1 and 12 of the decision
are reproduced below:
“The appellant is an exporter of Viscose Staple Fibre excluding
bamboo fibre (subject goods) and is located in Hong Kong. They
participated in the Sunset review investigation of the anti-
dumping duty imposed on subject goods when imported from
China PR and Indonesia. The present appeal is against final
finding dated 8-7-2016 of the Designated Authority (DA),
Directorate General of Anti-Dumping and Allied Duties,
Ministry of Commerce and Industry and Customs Notification
No. 43/2016-CUS (ADD), dated 8-8-2016 which was issued
based on the said final finding of the DA. The final finding now
impugned is on conclusion of Sunset review of anti-dumping
duty imposed on the subject goods. The Sunset review was done
on a petition filed by Association of Man-made Fibre Industry of
India on behalf of Domestic Industry (DI). M/s. Grasim
Industries Ltd. is the sole producer who furnished all
information for the review. The DA concluded that the subject
goods continue to enter into the market with dumped prices.
Dumping margin and injury margin are positive and significant.
Performance of the Domestic Industry has worsened in terms of
various economic parameters. There is likelihood of price under
cutting in case of cessation of anti-dumping duty. Based on such
finding he recommended continuation of definitive anti-dumping
duty on all imports of subject goods. Accordingly, the Customs
Notification dated 8-8-2016 was issued by the Ministry of
Finance to give effect to the recommendations.
12. After having carefully considered the rival submissions we
note that anti-dumping duty is a trade remedy measure to
counter dumping. Imposition of anti-dumping duty is authorized
in terms of an international agreement under WTO. Protection
of domestic industry of the Member country against unfair trade
practices is the rationale in imposing such duty. Section 9A(5) of
the Customs Tariff Act, 1975 provides for review of the anti-
dumping duty imposed. If upon review, if the Government is of
the opinion that the cessation of such duty is likely to lead to
continuation or recurrence of dumping and injury, it may,
extend the period of such imposition for a further period of 5
years. In the facts of the present case, we find the appellant
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could not place before us any empherical evidence to counter
the final findings on Sunset review by the DA. It has been clearly
recorded that cessation of existing anti-dumping duty on the
subject goods is likely to result in recurrence of dumping and
injury to the DI. Basically, we note that the present impugned
findings are in continuation of the earlier findings as it has been
recorded that there is a need to continue the imposition of anti-
dumping duty in terms of applicable legal provisions after due
consideration of the economic parameters. We find no merit in
the present appeal to persuade us to interfere with the
impugned final findings or the customs notification issued
based thereon. Accordingly, we dismiss the appeal. The stay
application linked to the appeal is also disposed of.”
(emphasis supplied)
33. It is also important to note that before the expiry of the period
of five years from the issuance of the notification dated 08.08.2016
imposing anti-dumping duty for a period of five years, a second sunset
review investigation was initiated by a notification dated 22.02.2021 to
review the need for continued imposition of the duties in force in respect
of the subject goods originating in or exported from the subject countries
and to examine whether the expiry of such duty was likely to lead to
continuation or recurrence of dumping and injury to the domestic
industry. The existing duties on the subject goods imposed by notification
dated 08.08.2016 were to expire on 07.08.2021, and so the Central
Government, by a notification dated 30.06.2021, extended anti-dumping
duties upto 31.10.2021. In regard to the second sunset review initiated on
22.02.2021, the designated authority, in its final findings notified on
31.07.2021, concluded that there was no justification for recommending
continuation of anti-dumping duty and accordingly recommended for
withdrawal of anti-dumping duty on import of subject goods from the
subject countries imposed by notification dated 08.08.2016, which period
was subsequently extended upto 31.10.2021 by the notification dated
30.06.2021. Consequently, the Central Government, by a notification
dated 12.08.2021, rescinded the notification dated 08.08.2016, as
amended by notification dated 30.06.2021, except as respects things done
or omitted to be done before such rescission.
34. It is for this reason that learned counsel for the respondent
submitted that as the imposition of anti-dumping duty imposed by
notification dated 08.08.2016 stood expired on 07.08.2021, this appeal
has been rendered infructuous and in support of this contention reliance
has been placed on the judgment of the Supreme Court in Reliance
Industries.
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35. Once it has been held that anti-dumping duty was validly
imposed by notification dated 08.08.2016 for a period five years upto
07.08.2021, it would not be necessary to examine this issue.
36. It, however, needs to be noted that the Supreme Court in
Reliance Industries had examined a situation where the period stipulated
for imposition of anti-dumping duty had lapsed and in view of the
statement made by the learned Assistant Solicitor General of India,
dismissed the Special Leave Petition. The observations are as follows:
“Mr. R.N. Trivedi, learned ASG fairly admits that the five
years period is already over. He states that this Special Leave
Petition has become infructuous. The Special Leave Petition is
dismissed as such. Question of law is left open.”
37. Learned counsel for the appellant also submitted that the
designated authority committed an error in recommending duties which
were higher than the dumping margin determined for the foreign exporter
as this would be contrary to the provisions of section 9A(1) of the Tariff
Act read with rule 4 of the Anti-Dumping Rules.
38. This submission cannot be accepted. In a case where there is
an affirmative order for extension of anti-dumping duty on the basis that
there is a likelihood of recurrence of dumping and injury, the rigours of
section 9A(1) of the Tariff Act would not be attracted. It would be
competent for the designated authority to extend the period of imposition
without modification of the rate of duty. This is what was observed by the
Tribunal in Thai Acrylic Fibre Co. Ltd. vs. Designated Authority14 and
the relevant portion of the decision is reproduced below:
“14. Sunset review entails a likelihood determination in
which present levels of dumping is obviously not so relevant
as is the likelihood of continuance or recurrence of dumping.
Moreover, during the investigation period, the anti-dumping
duty would be in force and hence, the current level of
dumping may be non-existent or minimal. The exporters
under investigation may also sell at a non-dumped price
during this period knowing fully well that a sunset review
would be in progress. Hence, the criteria under Section 9A(1)
that the anti-dumping duty should not exceed the dumping
margin would have no practical application for continuance
of the duty under Section 9A(5). There is also no such
warrant in law under the said Section 9A(5) to do so.”12/87
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39. Earlier, in Borax Morarji Limited vs. Designated
Authority15, a similar view was expressed by the Tribunal and the
relevant portion of the decision is reproduced below:
“Proviso to Section 9A(5) of Customs Tariff Act,
1975 primarily intends to undertake review to examine
whether cessation of duty on the expiry of five years is likely
to lead to continuance/recurrence of dumping and injury –
Expression “likely to lead to recurrence” would cover
situation where dumping and injury may not exist at time of
review due to continuance of anti-dumping duty.
During the period of investigation, the anti-dumping
duty would be in force and hence, the “current” level of
dumping may be nonexistent or minimal. The exporters
under investigation may also sell at a non-dumped price
during this period knowing fully well that a sunset review
would be in progress. Hence, the criteria under Section
9A(1) that the anti-dumping duty should not exceed the
dumping margin would have no practical application for
continuance of the duty under Section 9A(5). There is also no
such warrant in law under the said Section 9A(5) to do so.
40. The challenge to the final findings dated 08.07.2016 of the
designated authority and the consequential notification dated 08.08.2016
issued by the Central Government imposing anti-dumping duty, therefore,
for all reasons stated above, fails.
41. This anti-dumping appeal is, accordingly dismissed.”
12. In W.P.No.22830 of 2022, the Writ Petitioner has strangely
challenged initiation of the 2nd Sunset Review by the 2nd Respondent vide
Sunset Review Notification No. 07/03/2021 dated 22.02.2021 and the Final
Findings Notification No.07/03/2021 DGTR dated 31.07.2021 of the 2nd
Respondent, although by the Final Findings Notification No.07/03/2021
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DGTR dated 31.07.2021, the 2nd Respondent has recommended for
withdrawal of Anti Dumping Duties recommended vide Notification
No.15/09/2015-DGAD dated 08.07.2021.
13. In the 2nd Sunset Review by the 2nd Respondent vide Sunset
Review Notification No. 07/03/2021 dated 22.02.2021, the Product under
Consideration (PUC) was ‘Viscose Staple Fibre except Bamboo Fibre’. The
grievance of the Petitioner is that the domestic industry had curtailed the
Product under Consideration (PUC) by excluding several types of subject
goods i.e., Viscose Staple Fibre (VSF). It is stated that PUC was restricted to
merely a portion of VSF. However, it contended that the domestic industry
relied upon certain documents which contained information for VSF as a
whole.
14. Paragraph No. 5 and 6 of the 2nd Sunset Review Notification No.
07/03/2021 dated 22.02.2021 by the 2nd Respondent deals with ‘Product
under Consideration’. It reads as under:-
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022Paragraph No.5 of the Notification Paragraph No.6 of the Notification
The scope of the product under consideration The scope of product under
in the previous investigation was as below:- consideration in the present
investigation is restricted to only
“Viscose Staple Fibre (VSF) excluding “Viscose Staple Fibre (VSF)
Bamboo fibre”, Viscose Staple Fibre is exluding Bamboo Fibre, Dyed
described as “Viscose rayon staple fibre not Fibre, Modal Fibre & Fire-
carded/combed” under the Customs Tariff retardant Fibre” All other types of
and is also known as “Rayon Fibre” in some Viscose Staple Fibre are kept
markets. The product under consideration is outside the scope of product under
classified under Custom Headings consideration.
5504.10.00. The Customs classification is
indicative only and is in no way biding on the
scope of the present investigation…”
15. Operative Portion of the Final Findings Notification
No.07/03/2021 DGTR dated 31.07.2021 impugned in W.P.No.22830 of
2022 reads as under:-
“M. Conclusion
154. Having regard to the contentions raised, information
provided, submissions made and facts available before the Authority as
recorded in these findings and on the basis of the determination of
dumping and consequent injury to the domestic industry made
hereinabove, the Authority concludes that:
(a) Considering the normal value and export price for subject
goods, the dumping margins for the subject goods from each of
the subject countries have been determined, and the margins
are significant. There is a likelihood of continuation of
dumping from subject countries.
(b) Considering various parameters relating to material injury, the
Authority notes that the volume of dumped imports from the
subject countries have declined in the POI as compared to the
previous two financial years. The domestic industry has seen a
decline in the production and sales during POI. However, the
decline in production and sales can be attributed to the fall in
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022countries are not undercutting the prices of the domestic
industry and price underselling is also negative. The
profitability of the domestic industry has declined during the
POI. However, profit earned by the domestic industry during
POI are still reasonable. The landed price of imports during
the POI is significantly higher than the cost of sales, selling
price and NIP of the domestic industry. The domestic industry
enjoys a dominant position in the Indian market and the market
share of imports from subject countries is very low. Therefore,
the imports cannot be said to be causing any price and volume
effect on the domestic industry.
(c) From the information available on record, it is noted that there
is a likelihood of continuation of dumping from subject
countries. However, the likelihood of recurrence of injury to
the domestic industry is not strong enough to warrant
continuation of duties beyond 11 years. There are insignificant
surplus capacities with the responding producers / exporters in
subject countries, which can be used to increase their exports to
India in event of revocation of duty.
(d) Therefore, based on objective examination of information on
record, it is concluded that there is no justification for
recommending continuation of anti-dumping duty in the present
case.
N. Recommendation
155. In view of above, the Authority considers it appropriate to
recommend withdrawal of antidumping duty on import of subject goods
from the subject countries recommended vide Notification
No.15/09/2015-DGAD dated 8th July 2016 and enforced vide Customs
Notification No.43/2016-Customs (ADD) dated 8th August 2016 which
was further extended vide Customs Notification No.39/2021-Customs
(ADD) dated 30th June 2021 till 31st October 2021.”
16. In W.P.No.22834 of 2021, the Petitioner has challenged the entire
scope of levy of Anti-Dumping Duty imposed on the Viscose Staple Fibre
exported from Indonesia vide the above mentioned notifications issued by
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the 1st and 2nd Respondents in the light of the decision of the Hon’ble
Supreme Court in UOI Vs. Kumho Petrochemicals Company Limited,
2017 (351) E.L.T. 65 (SC), wherein, the interpretation of Section 9A(1) and
2nd Proviso to Section 9A(5) of the Customs Tariff Act, 1975 fell under
consideration.
17. There the amendment to notification for levy of anti-dumping duty
was made with retrospective effect from 2009, after the lapse of the first
preiod of Anti-Dumping Duty. Section 9A(1) and 9A(5) of the Customs
Tariff Act, 1975 read as under:-
Table No.3:
Section 9A(1) of the Customs Tariff Act, Section 9A(5) of the Customs Tariff Act,
1975 1975
(1) Where any article is exported by an “(5) The anti-dumping duty imposed
exporter or producer from any country or under this section shall, unless revoked
territory (hereinafter in this section referred earlier, cease to have effect on the expiry
to as the exporting country or territory) to of five years from the date of such
India at less than its normal value, then, imposition:
upon the importation of such article into Provided that if the Central Government,
India, the Central Government may, by in a review, is of the opinion that the
notification in the Official Gazette, impose cessation of such duty is likely to lead to
an anti-dumping duty not exceeding the continuation or recurrence of dumping
margin of dumping in relation to such and injury, it may, from time to time,
article. extend the period of such imposition for a
Explanation.—For the purposes of this further period of five years and such
section,— further period shall commence from the
(a) “margin of dumping”, in relation to an date of order of such extension:
article, means the difference between its Provided further that where a review
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022Section 9A(1) of the Customs Tariff Act, Section 9A(5) of the Customs Tariff Act,
1975 1975
export price and its normal value; initiated before the expiry of the
(b) “export price”, in relation to an article, aforesaid period of five years has not
means the price of the article exported from come to a conclusion before such expiry,
the exporting country or territory and in the anti-dumping duty may continue to
cases where there is no export price or remain in force pending the outcome of
where the export price is unreliable such a review for a further period not
because of association or a compensatory exceeding one year.”
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 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 [destined for
consumption] in the exporting country or
territory as determined in accordance with
the rules made under sub-section (6); or
(b) the cost of production of the said article
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022Section 9A(1) of the Customs Tariff Act, Section 9A(5) of the Customs Tariff Act,
1975 1975
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 sub-section (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 count
18. Interpreting 2nd Proviso to Section 9A(5) of the Customs Tariff
Act, 1975, the Division Bench of the Delhi High Court in M/s.Kumho
Petrochemicals Company Limited and another Vs. Union of India and
others, 2014 SCC OnLine Del 3546 / (2014) 212 DLT 545 (DB), has
concluded as follows in Paragraph 26 of the Judgement:-
“26. In the light of the above position, this court holds that what follows
is that the levy of anti-dumping duty ended on January 1, 2014, with the
lapse of the original notification. The second proviso to section 9A(5)
precluded the Central Government from continuing the levy beyond that
period or date, except to the extent its conditions were fulfilled, i.e., if the
levy of the duty were to have been notified before such date. In such cases,
the power under the second proviso to section 9A(5), after expiry of the
date of the original notification, is unavailable. The notification in the
present case states that—“5.Notwithstanding anything contained in paragraph 2, this
notification shall remain in force up to and inclusive of the first
day of January, 2015, with respect to anti-dumping duty on
acrylonitrile butadiene rubber originating in, or exported from
Korea RP, unless revoked earlier”.
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Neither does section 9A(1) nor section 9A(5) permit the extension of anti-
dumping duty once the main period of five years lapses, as held earlier.
The Central Government is not arguing that it had the benefit of section
21 of the General Clauses Act—for the simple reason that extension or
amendment of an earlier notification can be only after following the
procedure adopted while issuing the main notification. In the present
case, the amendment is retrospective, as it were, and made effective from
2009. It was in fact made after the lapse of the first period.”
19. The reasonings of the Delhi High Court in the aforesaid decision
are in Paragraph Nos. 23, 24 and 25 of the Judgement. They read as under:-
“23. The next issue is the legality of the levy pending sunset
review. The second proviso to section 9A(5) is conclusive on this aspect.
Whilst the need for a sunset review has been described as compelling and
mandatory in a decision of this court (Indian Metal and Ferro Alloys
Ltd. v. Designated Authority (2008) 224 ELT 375 (Delhi), based on the
Supreme Court ruling in Reliance Industries v. Designated Authority
(2006) 7 RC 579 ; (2006) 10 SCC 368, the court had this to say:
“… the first proviso to section 9A(5) of the Act casts an
obligation on the Central Government to ensure that for the
protection of the domestic industry (for the reasons given by the
Supreme Court) withdrawal of anti-dumping duty should not lead
to continuation or recurrence of dumping as well injury to the
domestic industry. In other words, the Central Government has
to ensure that the status quo ante is not restored, for that would
then mean that the designated authority would have to conduct,
all over again, a fresh investigation under rule 5 of the Rules and
the subsequent statutory procedures would also have to be
repeated. It is, therefore, not only to protect the domestic industry
but to avoid repetitive exercises that a review is mandated by the
Act and the Rules.
28. The key words in section 9A(5) of the Act are
contained in the first proviso thereto, namely, ‘the cessation of
such duty is likely to lead to continuation or recurrence of
dumping and injury’. It is possible that imposition of anti-
dumping duty may control the problem, in so far as the domestic
industry is concerned, during the five year period when the anti-
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anti-dumping duty is withdrawn. If this is coupled with injury to
the domestic industry, then the anti-dumping duty should
continue. It is for this reason that a proper assessment, through a
review, is necessary to determine whether anti-dumping duty
should continue or not.”
It could have been argued that section 9A and the
notification published is a one-time measure ; however, the need
for review was contemplated in articles 11.1, 11.2 and 11.3 of the
agreement for implementation of article VI of the GATT
(“Implementation Agreement”). The said provisions read as
follows :
“11.1 An anti-dumping duty shall remain in force only as
long as and to the extent necessary to counteract dumping which
is causing injury.
11.2 The authorities shall review the need for the
continued imposition of the duty, where warranted, on their own
initiative or, provided that a reasonable 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 anti-dumping 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 would be likely to lead to continuation or recurrence of
dumping and injury. The duty may remain in force pending the
outcome of such a review.”
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It is clear that section 9A(5) has echoed articles 11.1,
11.2 and 11.3. In the context of the present discussion, it is
pertinent that the implementation agreement makes the
imposition of duty during pendency of sunset review
discretionary (“The duty may remain in force pending the
outcome of such a review.”). Likewise, the second proviso to
section 9A(5) states 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”.
24. The respondents’ contention that continuing the anti-dumping
duty during pendency of the sunset review is more or less automatic, is
thus, belied by the terms of the implementing agreement, which was
enacted in the second proviso. It consequently does not follow as a
sequitur that whenever a sunset review is initiated under section 9A(5)
first proviso, the duty existing as on that date, would continue. This
inference is obvious because, in the first instance, the original levy has a
life of only five years. Thus, the legality of such levy is supported—by
virtue of section 9A(5) only for that duration. If the respondents wish to
continue the levy for a period beyond that, during pendency of sunset
review (which might not be concluded by the time the first period expires)
they have to issue a notification, before the expiry of that period. It needs
to be underlined here that but for the second proviso, there can be no
legal extraction, during the sunset review, if the proceeding extends
beyond the first five year period. In other words, the second proviso truly
carves out an exception and makes the levy which otherwise would be
invalid, on account of the operation of the main part, i.e., section 9A(5),
valid if its conditions are fulfilled.
25. This court holds that the petitioners’ submission that a
notification under section 9A(1) issued after review is in the nature of
temporary legislation, is merited. A statute is ordinarily perpetual, in the
sense that no time is fixed for its duration. In that sense section 9A is
perpetual. However, that provision is merely enabling; it authorises a levy
of anti- dumping duty upon proof of injury, and upon fulfilment of other
conditions. Once notified, the levy has effect – in terms of the notification
and section 9A(5) for five years. That levy is consequently, temporary as
the duration is finite. In these circumstances, section 6 of the General
Clauses Act, which provides that notifications, bye-laws, etc., validly
made under a repealed law can continue to be in force, would have no
application. This position was clarified by the Supreme Court in District
Mining Officer v. Tata Iron and Steel Co. [2001] AIR 2001 SC 3134,
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where the question as to what is a ‘temporary statute’, was examined and
it was observed that :
“19….. A statute can be said to be either perpetual or
temporary. It is perpetual when no time is fixed for its
duration and such a statute remains in force until its repeal
which may be express or implied. But a statute is temporary
when its duration is only for a specified time and such a
statute expires on the expiry of the specified time, unless it is
repealed earlier. .. Admittedly, to a temporary statute, the
provisions of section 6 of the General Clauses Act, 1897 will
have no application. .. A temporary statute even in the
absence of a saving provision like section 6 of the General
Clauses Act may not be construed dead for all purposes and
the effect of expiry is essentially one of the construction of the
Act.”
20. In an appeal filed by the Union of India against the above decision
of the Division Bench of the Hon’ble Delhi High Court, the Hon’ble
Supreme Court affirmed the views of the Hon’ble Delhi High Court in
Union of India Vs. Kumho Petrochemicals Company Limited, 2017
(351) E.L.T. 65 (SC) with the following observations:-
“18. The first proviso to Section 9-A(5) of the Act, when read
along with Rule 6 of the Rules, do not lead to the conclusion that the
intention to review and extend the anti-dumping duty, in the facts of a
given case, have to be necessarily published and made available to all,
before the expiry of the original notification. Requirement of Section 9-
A(5) of the Act is that the sunset review is to be initiated before the expiry
of the original period for which the anti-dumping duty prevails. There is
no additional requirement of making it public as well, necessarily before
the said expiry date.
19. We, thus, agree with the conclusion of the High Court that
insofar as requirement of public notice or a gazette notification is
concerned, no such stipulation is made in Section 9-A(5) and its proviso.
On the other hand, Section 9-A(1), which deals with imposition of anti-
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dumping duty, specifically refers to such an imposition by way of
publication in an Official Gazette. Therefore, as far as initiation of review
is concerned, once a decision is taken by the Government on a particular
date, that would be the relevant date and not the date on which it is made
public.
….
34. After giving due consideration to the arguments advanced by
the learned counsel for the parties, we are inclined to agree with the High
Court that proviso to sub-section (5) of Section 9-A of the Act is an
enabling provision. That is very clear from the language of the said
provision itself. Sub-section (5) of Section 9-A gives maximum life of five
years to the imposition of anti-dumping duty by issuing a particular
notification. Of course, this can be extended by issuing fresh notification.
However, the words “unless revoked earlier” in sub-section (5) clearly
indicate that the period of five years can be curtailed by revoking the
imposition of anti-dumping duty earlier. Of course, provision for review is
there, as mentioned above, and the Central Government may extend the
period if after undertaking the review it forms an opinion that
continuation of such an anti-dumping duty is necessary in public interest.
When such a notification is issued after review, period of imposition gets
extended by another five years. That is the effect of the first proviso to
sub-section (5) of Section 9-A. However, what we intend to emphasise
here is that even as per sub-section (5), it is not necessary that in all cases
anti-dumping duty shall be imposed for a full period of five years as it can
be revoked earlier. Likewise, when a review is initiated but final
conclusion is not arrived at and the period of five years stipulated in the
original notification expires in the meantime, as per the second proviso
“the anti-dumping duty may continue to remain in force”. However, it
cannot be said that the duty would automatically get continued after the
expiry of five years simply because review exercise is initiated before the
expiry of the aforesaid period. It cannot be denied, which was not even
disputed before us, that issuance of a notification is necessary for
extending the period of anti-dumping duty. Reason is simple. There no
duty or tax can be imposed without the authority of “law”. Here, such a
law has to be in the form of an appropriate notification and in the absence
thereof the duty, which is in the form of a tax, cannot be extracted as,
otherwise, it would violate the provisions of Article 265 of the
Constitution of India. As a fortiori, it becomes apparent that the
Government is to exercise its power to issue a requisite notification. In
this hue, the expression “may” in the second proviso to sub-section (5)
has to be read as enabling power which gives discretion to the Central
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Government to determine as to whether to exercise such a power or not.
It, thus, becomes an enabling provision.
35. We are conscious of the fact that once sunset review is
initiated, such initiation takes place only after a substantiated
application/request is filed by the indigenous industry which is examined
and a prima facie view is formed by the Central Government to the effect
that such a review is necessitated as withdrawal of anti-dumping duty or
cessation thereof may be prejudicial to the indigenous industry. Once
such an opinion is formed and the sunset review is initiated, in all
likelihood the Central Government would make use of the second proviso
and issue notification for continuing the said anti-dumping duty. At the
same time, it cannot be said that without any overt act on the part of the
Central Government, there is an automatic continuation. The learned
counsel for the respondent rightfully pointed out that the legislature has
consciously used the expressions “may” and “shall” at different places in
the same section i.e. Section 9-A of the Act. In such a scenario, it has to be
presumed that different expressions were consciously chosen by the
legislature to be used, and it clearly understood the implications thereof,
therefore, when the word “may” is used in the same section in
contradistinction to the word “shall” at other places in that very section,
it is difficult to interpret the word “may” as “shall”. Therefore, it is
difficult to read the word “may” as “shall”. Our conclusion gets
strengthened when we keep in mind following additional factors.
36. The anti-dumping duty may continue, pending the outcome of
the review, for a further period not exceeding one year. Thus, maximum
period of one year is prescribed for this purpose which implies that the
period can be lesser as well. The Government is, thus, to necessarily form
an opinion as to for how much period it wants to continue the anti-
dumping duty pending outcome of such a review. Moreover, since the
maximum period is one year, if the review exercise is not completed
within one year, the effect of that would be that after the lapse of one year
there would not be any anti-dumping duty even if the review is pending. In
that eventuality, it is only after the review exercise is complete and the
Central Government forms the opinion that the cessation of such a duty is
likely to lead to continuation or recurrence of dumping and injury, it
would issue a notification extending the period of imposition of duty.
Therefore, there may be a situation where even when the power is
exercised under the second proviso and duty period extended by full one
year, the review exercise could not be completed within that period. In
that situation, vacuum shall still be created in the interregnum beyond the
period of one year and till the review exercise is complete and fresh
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notification is issued. This situation belies the argument that extension
under the second proviso is to be treated as automatic to avoid the hiatus
or vacuum in between.”
21. The entire scope of challenge in these Writ Petition predominately
relies on the outcome of the challenge in W.P.No.22834 of 2022, wherein
the Petitioner has challenged the basis of levy of Anti-Dumping Duty on the
subject product i.e., Viscose Staple Fibre exported from Indonesia in terms
of the law laid down in the aforesaid decision of the Hon’ble Supreme Court.
FACTUAL BACKGROUND OF THE AFORESAID IMPUGNED
NOTIFICATIONS AND ORDERS OF THE TRIBUNAL:-
22. The Petitioner is an Indonesian Company, having its
manufacturing plants in Indonesia. It manufactures Viscose Staple Fibre
(VSF) and had exported Viscose Staple Fibres (VSF) to its customers in
India.
23. The 3rd Respondent i.e., the Association of Man-Made Fibre
Industy of India had filed a complaint before the Directorate General of
Trade Remedies regarding alleged dumping of Viscose Staple Fibres (VSF)
by the Petitioner. Thus, an investigation was commenced on 19.04.2009 by
the 2nd Respondent/ Designated Authority under the provisions of the
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Customs Tariff (Identification, Assessment and Collection of AntiDumping
Duty on Dumped Articles and for Determination of Injury) Rules, 1995
under Section 9A and 9B of the Customs Tariff Act, 1975.
24. The 2nd Respondent/ Designated Authority thereafter gave its final
finding vide Notification No.14/2009-DGAD on 17.05.2010 and
recommended imposition of Definitive Anti-Dumping Duties on the
imported into India by the Petitioner from Indonesia under the provisions of
the Customs Tariff Act, 1975 read with relevant rules framed thereunder.
25. In this backdrop, the 1st Respondent first issued Notification
No.76/2010-Customs (ADD) dated 26.07.2010 whereby Anti-Dumping
Duty was levied on imports from Indonesian manufactures of Viscose Staple
Fibres (VSF). Anti-Dumping Duty was initially levied for a period of five
years upto 25.07.2015 in terms of Section 9A(5) of the Customs Tariff Act,
1975.
26. Aggrieved by the finding of the 2nd Respondent/Designated
Authority vide Notification No.14/2009-DGAD dated 17.05.2020 and
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Notification No.76/2010-Customs (ADD) dated 26.07.2010, the Petitioner
herein filed an appeal before the Appellate Tribunal under the provisions of
the CEGAT (Countervailing Duty and Anti-Dumping Duty) Procedure
Rules, 1996.
27. The Appellate Tribunal vide Final Order No. AD/31-51/2011-
AD dated 11.08.2011 set aside the final finding of the 2nd Respondent/
Designated Authority recommending imposition of Definitive Anti-
Dumping Duty on 17.05.2020 vide Notification No.14/2009-DGAD and
directed the 2nd Respondent/ Designated Authority to grant post decisional
hearing.
28. The Appellate Tribunal had further observed that if the decision
of the 2nd Respondent vide Notification No.14/2009-DGAD dated
17.05.2020 is annulled, Notification No.76/2010-Customs (ADD) dated
26.07.2010 would have no legs to stand.
29. Pursuant to Final Order No. AD/31-51/2011-AD dated
11.08.2011 of the Appellate Tribunal, the 2nd Respondent/ Designated
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Authority passed a Final Order 14/6/2009-DGAD dated 10.04.2012 after
post decisional hearing. In the aforesaid proceedings, the 2nd Respondent/
Designated Authority reaffirmed its earlier decision taken on 17.05.2010
vide Notification No.14/2009-DGAD. Thus, the levy of Anti-dumping
Duty imposed vide Notification No.76/2010-Customs (ADD) dated
26.07.2010 was upheld and continued till 25.07.2015.
30. Three days before the expiry of the period fixed for levy of Anti-
dumping Duty imposed on the Petitioner vide Notification No.76/2010-
Customs (ADD) dated 26.07.2010, the 2nd Respondent initiated the 1st
Sunset Review on 22.07.2015.
31. As per the 2nd proviso to Section 9A(5) of the Customs Tariff Act,
1975, if before the expiry of original notification for levy of Anti-Dumping
Duty, the review for extending the period of levy of tax is initiated but not
completed, it can be extended for a period not exceeding one year pending
sunset review. This view is in consonance with the view of the Hon’ble
Supreme Court in Union of India Vs. Kumho Petrochemicals Company
Limited, content of which has been already extracted in the earlier part of
this Order.
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32. Thus, in the excise power / excise duty provided under Section
9A(5) of the Customs Tariff Act, 1975, the 1st Respondent issued
Notification No.37/2015-Customs (ADD) dated 06.08.2015 for the period
upto 25.07.2016. Thereafter, pursuant to the 1st Sunset Review initiated on
22.07.2015, the 2nd Respondent/ Designated Authority gave its finding vide
Notification No.15/9/2015-DGAD dated 08.07.2016 and recommended
continuation of levy of Anti-Dumping Duty on the Petitioner after Sunset
Review for a period of further 5 years.
33. Thus, Anti-Dumping Duty was to continue up to 07.08.2021.
Notification No.43/2016-Customs (ADD) dated 08.08.2016 was also issued
by the 1st Respondent which meets the text in Paragraph No. 34 of the
Hon’ble Supreme Court in Union of India Vs. Kumho Petrochemicals
Company Limited (cited supra) as extracted above.
34. Aggrieved by Notification No.43/2016-Customs (ADD) dated
08.08.2016 of the 1st Respondent/Central Government and recommendation
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in Notification No.15/9/2015-DGAD dated 08.07.2016 of the 2nd
Respondent, the Petitioner filed a Writ Petition in W.P.No.22825 of 2022.
As mentioned in Paragraph No.2 of this Order, the above Writ Petition was
dismissed as withdrawn on 30.10.2024, perhaps in view of the above
decision of the Hon’ble Supreme Court.
35. Thus, challenge to levy of Anti-Dumping Duty pursuant to
Notification No.43/2016-Customs (ADD) dated 08.08.2016 of the 1st
Respondent/Central Government and recommendation of the 2nd
Respondent/Designated Authority in Notification No.15/9/2015-DGAD
dated 08.07.2016 stands withdrawn. The levy of Anti-Dumping Duty on the
goods mentioned therein were to continue upto 08.08.2021. The goods
which were shortlisted for continuance of levy of Anti-Dumping Duties vide
Notification No.43/2016-Customs (ADD) dated 08.08.2016 of the Central
Government pursuant to the Final Finding of the 2nd Respondent/Designated
Authority are as under:-
S. Tariff Description Country Country Producer Exporter Amount Unit of Currency
No Item of goods of origin of export measure
-ment
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
1. 5504 ‘Viscose Indonesia Indonesia P T South PT 0.103 kilogram US Dollar
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022S. Tariff Description Country Country Producer Exporter Amount Unit of Currency
No Item of goods of origin of export measure
-ment
10 00 Staple Fibre Pacific South
(VSF) Viscose Pacific
excluding Viscose
Bamboo
fibre’
2. 5504 ‘Viscose Indonesia Indonesia Any Combination 0.512 kilogram US Dollar
10 00 Staple Fibre other than at S.No.1
(VSF)
excluding
Bamboo
fibre’
3. 5504 ‘Viscose Indonesia Any Any Any 0.512 kilogram US Dollar
10 00 Staple Fibre country
(VSF) other than
excluding attracting
Bamboo anti-
fibre' dumping
duty
4. 5504 'Viscose Any Indonesia Any Any 0.512 kilogram US Dollar
10 00 Staple Fibre country
(VSF) other than
excluding attracting
Bamboo anti-
fibre' dumping
duty
5. 5504 'Viscose People's People's Tangsha Tangsha 0.180 kilogram US Dollar
10 00 Staple Fibre Republic Republic n Sanyou n Sanyou
(VSF) of China of China Group Group
excluding Xingda Hong-
Bamboo Chemical kong
fibre' Fibre Co. Inter-
Ltd. national
Trade
Co. Ltd.
6. 5504 'Viscose People's People's Any Combination 0.194 kilogram US Dollar
10 00 Staple Fibre Republic Republic other than at S.No.5
(VSF) of China of China
excluding
Bamboo
fibre'
7. 5504 'Viscose People's Any Any Any 0.194 kilogram US Dollar
10 00 Staple Fibre Republic country
(VSF) of China other than
excluding attracting
Bamboo anti-
fibre' dumping
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S. Tariff Description Country Country Producer Exporter Amount Unit of Currency
No Item of goods of origin of export measure
-ment
duty
8. 5504 'Viscose Any People's Any Any 0.194 kilogram US Dollar
10 00 Staple Fibre country Republic
(VSF) other than of China
excluding attracting
Bamboo anti-
fibre' dumping
duty
36. Therefore, the 2nd Sunset Initiation Review vide Notification
No.07/03/2021-DGTR dated 22.02.2021 was issued by the 2nd Respondent/
Designated Authority to extend the levy of Anti-Dumping Duty on the basis
of duly substantiated Written Applications filed by or on behalf of the
domestic industry, wherein the Product under Consideration was restricted
to “Viscose Staple Fibre (VSF) excluded Bamboo fibre” as mentioned
above.
37. In the 2nd Sunset Initiation Review vide Notification
No.07/03/2021-DGTR dated 22.02.2021, the 2nd Respondent stated that it
was satisfied, on the basis of the prima facie evidence submitted by the
domestic industry substantiated likelihood of continuation / recurrence of
dumping and injury of product under consideration originating in or
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022exported from the subject Countries, in accordance with Section 9A of the
Customs Tariff Act, 1975 read with Rule 5 of the Customs Tariff
(Identification, Assessment and Collection of Anti-dumping Duty on
Dumped Articles and for Determination of Injury) Rules, 1995.
38. In the said 2nd Sunset Initiation Review vide Notification
No.07/03/2021-DGTR dated 22.02.2021, the 2nd Respondent/Designated
Authority, stated that the period of investigation was for the period between
01.09.2019 and 31.10.2020 i.e., for the period much prior to the expiry of
period covered by Notification No.43/2016-Customs (ADD) dated
08.08.2016 issued by the 1st Respondent which imposed Anti-Dumping Duty
for a period of five years.
39. The Injury Investigation Period and the Period of investigation are
tabulated below:-
Details Time period
Injury Investigation Period 01.04.2017-31.03.2018, 01.04.2018-31.03.2019 and
01.04.2019-31.03.2020
Period of investigation 01.09.2019-31.10.2020.
40. By a corrigendum dated 05.03.2021 to 2nd Sunset Initiation
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Review Notification No.07/03/2021-DGTR dated 22.02.2021, certain
products were excluded from the purview of investigation by the 2nd
Respondent/Designated Authority as detailed below:-
a) Bamboo Fibre
b) Modal Fibre
c) Non-Woven Fibre
d) Flame Retardant Fibre
e) Eco Fibre (Eco Vero or EV)
f) Spun Dyed Fibre
g) Tencel Fibre (or Lyocell) and Outlast Viscose Fibre
41. The Viscose Staple Fibre (VSF) was not excluded. Since the
investigation was not completed, the 1st Respondent in the exercise of power
conferred under Section 9A(5) of the Customs Tariff Act, 1975 read with
Rules 18 and 23 of the Customs Tariff (Identification, Assessment and
Collection of Anti-dumping Duty on Dumped Articles and for
Determination of Injury) Rules, 1995 amended Notification No.43/2016-
Customs (ADD) dated 08.08.2016 vide Notification No.39/2021-Customs
(ADD) dated 30.06.2021 to levy Anti-Dumping Duty till 31st October, 2021.
42. By virtue of the aforesaid Notification, after Paragraph 2 and
before the Explanation to Notification No.43/2016-Customs (ADD) dated
08.08.2016, Paragraph No.3 was inserted to read as under:-
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022“3. Notwithstanding anything contained in paragraph 2, the anti-
dumping duty shall remain in force up to and inclusive of the 31st October,
2021, unless revoked, superseded or amended earlier.”
43. The 2nd Respondent, the Designated Authority gave its final
finding in the Sunset Review for imports of Viscose Staple Fibre (VSF)
originating in or exported from People’s Republic of China (China PR) and
Indonesia on 31.07.2021 in F.No.7/03/2021-DGTR. On 31.07.2021, the 2nd
Respondent, the Designated Authority concluded as extracted above and
recommended withdrawal of Anti-Dumping Duty vide Notification
No.15/9/2015-DGAD dated 08.07.2016.
44. In this background, the 1st Respondent issued Notification
No.44/2021-Customs (ADD) dated 12.08.2021 and thereby revoked Anti-
Dumping Duty imposed on “Viscose Staple Fibre excluding Bamboo
Fibre”, falling under Tariff Item 5504 10 00 of the First Schedule to the
Customs Tariff Act, 1975, originating in or exported from People’s
Republic of China and Indonesia, and imported into India and thus
rescinded Notification No.43/2016-Customs (ADD) dated 08.08.2016.
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45. In the light of the above, the 2nd Respondent recommended
withdrawal of Anti-Dumping Duty on import of Viscose Staple Fibre which
was earlier recommended vide Notification No. 14/2009-DGAD on
17.05.2010 and enforced vide Notification No.76/2010-Customs (ADD)
dated 26.07.2010 and thereafter recommended vide Notification
No.15/09/2015-DGAD dated 08.07.2016 and enforced vide Customs
Notification No.43/2016-Customs (ADD) dated 08.08.2016 which was
further extended vide Notification No.39/2021-Customs (ADD) dated
30.06.2021 till 31.10.2021.
46. It is in this background, the 1st Respondent issued Notification
No.44/2021-Customs (ADD) dated 12.08.2021 whereby the Anti-Dumping
Duty levied under the above mentioned Notifications, particularly vide
Notification dated 08.07.2016 and enforced vide Customs Notification
dated 08.08.2016 and was further extended vide Notification dated
30.06.2021 till 31.10.2021 were rescinded except in respect of the things
done or omitted to be done before such decision.
47. Relevant portion of the Notification No.44/2021-Customs (ADD)
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dated 12.08.2021 reads as under:-
“G.S.R. (E).- In exercise of the powers conferred by
sub-sections (1) and (5) of Section 9A of the Customs Tariff
Act, 1975 (51 of 1975), the Central Government revokes the
anti-dumping duty imposed on “Viscose Staple Fibre
excluding Bamboo Fibre”, falling under tariff item 5504 10
00 of the First Schedule to the said Act, originating in or
exported from People’s Republic of China and Indonesia, and
imported into India and hereby rescinds the notification of the
Government of India in the Ministry of Finance (Department
of Revenue) No.43/2016-Customs (ADD) dated the 8th
August, 2016, published in the Gazette of India,
Extraordinary, Part II, Section 3, Sub-section (i) vide number
G.S.R. 777 (E), dated the 8th August, 2016, except as respects
things done or omitted to be done before such rescission.
Notification No.44/2021-Customs (ADD) dated 12.08.2021
48. Aggrieved by Notification No.44/2021-Customs (ADD) dated
12.08.2021 rescinding levy of Anti-Dumping Duty vide Notification
No.43/2016-Customs (ADD) dated 08.08.2016, the 3rd Respondent namely
the Association of Man-Nade Fibre Industry of India filed Appeal No.51490
of 2021 before the Appellate Tribunal under the provisions of the CEGAT
(Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996 .
49. It is in this background, the Writ Petitioner had also challenged the
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Final Findings No.15/09/2015-DGAD dated 08.07.2016 and Customs
Notification No.43/2016-Customs (ADD) dated 08.08.2016 before the
Appellate Tribunal in Anti Dumping Appeal No.50571 of 2022 in view of
the Final Order No.50427 of 2022.
50. The Appellate Tribunal vide Final Order No. 50427 of 2022,
allowed the various appeals as filed by the 3rd Respondent and others arising
out of Final Findings No.7/03/2021-DGTR dated 31.07.2021 and Customs
Notification No.44/2021-Customs (ADD) dated 12.08.2021 as stated above
to the extent that the 2nd Respondent, the Designated Authority was to re-
examine and give a fresh finding as to whether cessation of Anti-Dumping
Duty would likely lead to continuation or recurrence of injury so as to
warrant imposition of Anti-Dumping Duty for a further period of five years.
51. The Final Findings dated 31.07.2021 bearing F.No.7/03/2021-
DGTR of the 2nd Respondent pursuant to the 2nd Sunset Initiation Review
Notification No.07/03/2021-DGTR dated 22.02.2021 and the
Corrigendum dated 05.03.2021, therefore, stood modified to this extent.
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The 2nd Respondent was to thereafter submit its recommendation to the
Central Government for further action in accordance with the provisions of
52. Thus, the challenge to Final Findings dated 31.07.2021 of the 2nd
Respondent in the Anti-Dumping Appeal Nos. 51832 of 2021 and 50570 of
2021 filed by the Southern India Mills Owners Association and the Writ
Petitioner were dismissed by the Appellate Tribunal vide the impugned
Final Order dated 19.05.2022 while the Anti-Dumping Appeal No. 51490
of 2021 filed by the 3rd Respondent challenging the Final Findings dated
31.07.2021 was allowed vide the impugned Final Order dated 19.05.2022.
53. Furthemore, the other Anti-Dumping Appeals filed by the Writ
Petitioner and the various other persons including the appeal in Anti
Dumping Appeal Nos. 50570 & 50571 of 2021 filed by the Petitioner as
stated in the Table above were dismissed by the Appellate Tribunal vide the
impugned Final Orders dated 19.05.2022
54. The Appellate Tribunal vide Final Order No.50435 of 2022 in
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Anti Dumping Appeal No.50571 of 2022 filed by the Petitioner arising out
of Final Findings No.15/09/2015-DGAD dated 08.07.2016 and Customs
Notification No.43/2016-Customs (ADD) dated 08.08.2016 was dismissed.
55. It is in this background, these Writ Petitions have been filed.
SUBMISSIONS MADE ON BEHALF OF THE PETITIONER:-
56. The learned counsel for the Petitioner would submit that the
CESTAT erred in upholding the unilateral alteration of the ‘Product under
Consideration’ (PUC) by the domestic industry, violating Section 2A(5) of
the Customs Tariff Act, 1975 and Rule 23 of the Anti-Dumping Rules.
57. It is submitted by the learned counsel for the Petitioner that the
Tribunal allowed changes to the PUC without providing an opportunity for
other parties to comment, thus breaching principles of procedural fairness. It
is further submitted that over multiple investigations, the PUC had been
narrowed repeatedly, including the exclusion of various VSF grades, and
these changes were made unilaterally by the domestic industry, violating
natural justice.
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58. Learned counsel for the Petitioner would further submit that the
sunset review should have been conducted under Section 9A(5) of the
Customs Tariff Act, 1975 and Rule 23 of the Anti-Dumping Duty (ADD)
Rules. These provisions stipulate that Anti-Dumping Duties can only be
extended if their cessation would lead to the continuation of dumping and
injury. It is stated that Rule 23(1B) emphasizes the need for the duty and
review process, ensuring input from all parties. Therefore, it is submitted the
scope of the PUC should not have been altered during the review, but rather
extended if necessary.
59. Learned counsel for the Petitioner submitted that there was a 11
days gap between the expiry of Anti-Dumping Duty (ADD) imposed under
the original Notification No.76/2010-Customs (ADD) dated 26.07.2010
which expired on 25.07.2015, and the subsequent extension of the Anti-
Dumping Duty for one year under Notification No.37/2015-Customs
(ADD) dated 06.08.2015.
60. In support of this contention, the Petitioner relied on the decision
of the Hon’ble Supreme Court in Union of India Vs. Kumho
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Petrochemicals Company Limited, 2017 [351] E.L.T. 65 [SC], wherein it
was held that there cannot be an extension of Anti-Dumping Duty
notification after the expiry of the original notification. The Petitioner
highlighted that the Tribunal, in Appeal No. 50571 of 2022, accepted this
position and declared Notification No.37/2015-Customs (ADD) dated
06.08.2015, to be non-est in law.
61. The learned counsel for the Petitioner relied on the Judgment of
the Hon’ble Supreme Court in Kumho Petrochemicals Case (cited supra),
which clarified that Anti-Dumping Duty notifications under Section 9(1) of
the Customs Tariff Act, 1975, are temporary in nature and can only be
extended during the pendency of the original levy. It was emphasized that a
levy cannot be extended once it has expired, as such an extension would be
invalid. This principle was formulated under the second Proviso to Section
9A(5) of the Customs Tariff Act, 1975 and applies equally to the first
proviso, as both provisions underscore the requirement for the levy to exist
at the time of extension.
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62. Learned counsel for the Petitioner further submitted that despite
this finding, the Principal Bench of CESTAT, New Delhi surprisingly
upheld the validity of the notification issued after the sunset review (SSR),
extending the original levy for five years, even though there was a clear gap
between the expiry of the original levy on 25.07.2015, and the issuance of
the Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016.
The Petitioner argued that on 08.08.2016, when Notification No.43/2016-
Customs (ADD) dated 08.08.2016 sought to extend the levy for five years,
there was no Anti-Dumping Duty in existence. Thus, such an extension was
invalid due to the lack of continuity.
63. It was also argued by the counsel for the Petitioner that this
principle has been reinforced by the Hon’ble Delhi High Court in Forech
India Ltd. Vs. Designated Authority, 2018 [361] E.L.T. 671 [Del.] and
affirmed in Saint Gobain India (P) Ltd. Vs. Union of India, 2019 [9]
GSTR-OL 499. These judgments held that continuity in the imposition of
Anti-Dumping Duty is essential and that any break nullifies the authority to
extend the levy.
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64. The learned counsel for the Petitioner therefore contended that the
Principal Bench of CESTAT, New Delhi failed to follow these binding
precedents, which emphasize the importance of uninterrupted validity for
any extension to be lawful.
65. Learned counsel for the Petitioner further submitted that Section
9A(5) of the Customs Tariff Act, 1975, and Rule 23 of the Customs Tariff
(Identification, Assessment, and Collection of Anti-Dumping Duty on
Dumped Articles and for Determination of Injury) Rules, 1995, make it clear
that reviews must be completed within specified timelines, and extensions
must occur during the period of the levy’s validity. Post 2021 amendment to
Rule 23, it was highlighted that reviews must be concluded at least three
months before the expiry of the Anti-Dumping Duty under review, thereby
ensuring timely and valid extensions.
66. The Petitioner concluded that the Principal Bench of CESTAT,
New Delhi erred in ignoring these statutory principles and binding
precedents established by the Hon’ble Supreme Court and the Delhi High
Court. By failing to adhere to judicial discipline, as emphasized in Union of
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India Vs. Kamakshi Finance Corporation Limited, 1991 [55] ELT 433
[SC] that the Tribunal’s decision to validate the Anti-Dumping Duty
extension was without legal authority. Therefore, the learned counsel for the
Petitioner asserted that the absence of requisite continuity in the levy
rendered the extension unsustainable and that these Writ Petitions are liable
to allowed.
67. In support of the above contention, the learned counsel for the
Petitioner relied on the various decisions of the Hon’ble Supreme Court and
High Courts which are as follows:-
1. PT South Pacific Viscose Vs. UOI & Ors.,
W.P.No.42644 of 2016 dated 09.10.2022.
2. UOI Vs. Kumho Petrochemicals Company Ltd.,
2017 8 SCC 307.
3. Automotive Tyre Manufacturers Association
Vs. Designated Authority, 2011 (263) ELT 481
(SC).
4. Kumho Petrochemicals Company Ltd vs.
UOI., 2014 (306) ELT 3 (Del).
5. Forech India Ltd Vs. The Designated Authority
& Ors., 2018 (361) ELT 671.
6. The Principal Commissioner of Customs Vs.
M/s Huawei Telecommunications (India), Writ
Appeal No. 1489 of 2018.
7. Union of India Vs. Umosh Dhaimode, 1998 (98)
ELT 584 (SC).
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8. Kaluram and Anr Vs. Mehtab Bai and Anr.,
AIR 1959 MP 18.
9. M.R.M. Periannan Chettiar and Anr Vs.
Commissioner of Income of Tax., AIR 1960
Mad 406.
10.Ravishankar and Anr Vs. VIIth Additional
District Judge, Bhopal., 1994 MP LJ 783.
11.Rishiroop Polymers (P) Ltd Vs. Desginated
Authority., 2006 (196) ELT 185 (SC).
12.Association of Synthetic Fibre Industry Vs.
J.K.Industries Ltd., 2006 (199) E.L.T. 196 (S.C.)
13.Saurahtra Chemicals Ltd Vs. UOI., 2000 (118)
E.L.T. 305 (S.C.).
14.Nirma Limited Vs. Saint Gobain Glass India
Ltd., 2012 (281) E.L.T. 321 (Mad)
15.Fairdeal Polychem LLP Vs. UOI., 2016 (334)
E.L.T. 241 (Del).
SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT:-
68. On the other hand, learned Senior Standing Counsel for the 1st
Respondent would submit that Section 9A(5) of the Customs Tariff Act,
1975, provides that the Central Government may extend the period of Anti-
Dumping Duties for up to five years if it believes that cessation would lead
to the continuation or recurrence of dumping and injury under the first
proviso, while the second proviso allows the duties to continue for up to one
year during a review process.
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69. In support of the above submission, the learned Senior Standing
Counsel for the 1st Respondent highlighted that the Hon’ble Supreme Court
in Kumho Petrochemicals case (cited supra), acknowledged that a hiatus
between Anti-Dumping Duty periods is inevitable, and such a gap does not
invalidate the imposition of duties. It is further submitted that while the
Hon’ble Supreme Court emphasized that while a review is pending, the
duties may be extended, and any delay in completing the review does not
prevent the imposition of duties once the Central Government forms an
opinion.
70. The Respondents relied on Kumho Petrochemicals case (cited
supra) to stress that the gap between the expiry of duties and the issuance of
a fresh notification is a necessary outcome and does not imply invalidity.
Furthermore, it is submitted that the Principal Bench of CESTAT, New
Delhi vide Final Order dated 19.05.2022, allowed Anti-Dumping Appeal
No.51490 of 2021, directing the Designated Authority (DGTR) to re-
examine whether the cessation of Anti-Dumping Duties would likely lead to
injury and warrant a further extension of the duties for five years, following
which, the DGTR conducted oral hearings on 26.07.2022, after which
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written submissions were made, and additional representations were filed by
stakeholders.
71. It is submitted by the Respondents that the DGTR is currently
reviewing these submissions and post-period of investigation data, preparing
a disclosure statement, and seeking feedback from interested parties before
taking further action. Therefore, the Respondents argued that any
interference with the ongoing proceedings, which are in accordance with the
CESTAT’s directions, would compromise the process.
72. Additionally, it was contended that the Writ Petition filed under
Section 226 of the Constitution of India against the Final Order of the
CESTAT is not maintainable, as the proper remedy lies under Section 130 of
the Customs Act, 1962. The respondents referred to the decision of this
Court in Super Sales India Limited Vs. Commissioner of Central Excise
and 3M India Ltd. Vs. Commissioner of Customs, where Writ Petitions
challenging CESTAT’s orders were dismissed as non-maintainable. Based
on these submissions, the respondents prayed for the dismissal of the Writ
Petitions, asserting that they are devoid of merits.
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DISCUSSION:
73. We have heard the learned counsel for the Petitioner, the learned
Senior Standing Counsel for the 1st Respondent, the learned Senior Panel
Counsel for the 2nd Respondent and the learned counsel for the 3rd
Respondent in these Writ Petitions.
74. At the outset, we must state that we are not impressed with the
submissions made on merits on behalf of the Petitioner both on merits and
on the question of jurisdiction.
75. In our view, the Petitioner has resorted to forum shopping. The
respective impugned Final Orders both dated 19.05.2022 in Anti-Dumping
Appeal No. 51490 of 2021 filed by the 3rd Respondent and in Anti-
Dumping Appeal No.50571 of 2022 filed by the Writ Petitioner were
passed by the Appellate Tribunal situated at New Delhi along with other
appeals as stated in Table No. 2 of this Order.
76. Therefore, the Petitioner ought to have approached the Delhi
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High Court for appropriate relief. Instead, the Petitioner has approached this
Court even though practically there is no causal connection for the Petitioner
to invoke the jurisdiction of this Court.
77. As per the decision of the Hon’ble Supreme Court in Kusum
Ingots and Alloys Ltd. v. Union of India., 2004 (168) E.L.T. 3 (S.C.), even
in a given case, when the original authority is constituted at one place and
the appellate authority is constituted at another, a Writ Petition would be
maintainable at both the places.
78. The Hon’ble Supreme Court observed that order of the appellate
authority constitutes a part of cause of action and therefore a Writ Petition
would be maintainable in the High Court within whose jurisdiction it is
situate having regard to the fact that the order of the appellate authority is
also required to be set aside and as the order of the original authority merges
with that of the appellate authority. In the present case, not only all the
respondents are outside the jurisdiction of this High Court but also the
Appellate Tribunal which has passed the impugned order.
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79. The Court further observed that in appropriate cases, the Court
may even refuse to exercise its discretionary jurisdiction by invoking the
doctrine of “forum conveniens”.Therefore, these Writ Petitions are liable to
be dismissed also on account of the doctrine of “forum conveniens”.
80. The Hon’ble Supreme Court there further observed that, “We
must, however, remind ourselves that even if a small part of cause of action
arises within the territorial jurisdiction of the High Court, the same by itself
may not be considered to be a determinative factor compelling the High
Court to decide the matter on merit.”
81. The Court referred the decision in Bhagar Singh Bagga v.
Dewan Jagbir Sawhany., AIR 1941 Cal.; Mandal Jalan v. Madanlal,
(1945) 49 CWN 357; Bharat Coking Coal Limited v. M/s. Jharia Talkies
& Cold Storage Pvt. Ltd. (1997) CWN 122; S.S. Jain & Co. & Anr. v.
Union of India & Ors., (1994) CHN 445; M/s. New Horizon Ltd. v.
Union of India, AIR 1994 Delhi 126).
82. Therefore, these Writ Petitions are liable to be dismissed as none
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of the respondents are within the jurisdiction of this Court.
83. Even otherwise, these Writ Petitions are liable to be dismissed in
the light of Section 130 and Section 130E of the Customs Act, 1962 as in
force as the challenge is relating to rate of duty in the impugned Final
Orders both dated 19.05.2022 passed by the Appellate Tribunal in Anti-
Dumping Appeal No. 51490 of 2021 filed by the 3rd Respondent and Anti-
Dumping Appeal No. 50571 of 2022 filed by the Writ Petitioner.
84. As per Section 130E of the Customs Act, 1962, only the Hon’ble
Supreme Court in its appellate jurisdiction can entertain appeals from the
orders of the Appellate Tribunal in respect of rate of duty of customs and
valuation of goods under the Act.
85. Section 130E of the Customs Act, 1962 as it stands today and as
it stood amended but is not in force read as under:-
Section 130E of the Customs Act, Section 130E of the Customs Act,
1962 (Act 52 of 1962) 1962 (Act 52 of 1962) prior to
[As amended by National Tax Tribunal amendment which is still applicable.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022Act, 2005 (49/2005 dated 20.12.2005
with effect from 28.12.2005) vide
S.O.1826(E) dated 28.12.2005].
Appeal to Supreme Court : Appeal to Supreme Court:
An appeal shall lie to the Supreme An appeal shall lie to the Supreme
Court from – Court from –
(a) any judgment of the High Court (a) any judgment of the High
delivered – Court delivered –
i. in an appeal made under Section i. in an appeal made under Section
130; or 130; or
ii. on a reference made under ii. on a reference made under Section
Section 130 by the Appellate 130 by the Appellate Tribunal before
Tribunal before the 1 st day of July, the 1 st day of July, 2003;
2003; iii. on a reference made under
iii. on a reference made under Section 130A, in any case which, on
Section 130A, in any case which, on its own motion or on an oral
its own motion or on an oral application made by or on behalf of
application made by or on behalf of the party aggrieved, immediately
the party aggrieved, immediately after passing of the judgment, the
after passing of the judgment, the High Court certifies to be a fit one
High Court certifies to be a fit one for appeal to the Supreme Court; or
for appeal to the Supreme Court; or
(b) any order passed before the (b)any order passed by the Appellate
establishment of the National Tax Tribunal relating, among other
Tribunal by the Appellate Tribunal things, to the determination of any
relating, among other things, to the question having a relation to the rate
determination of any question of duty of customs or to the value of
having a relation to the rate of duty goods for purposes of assessment.
of customs or to the value of goods
for purposes of assessment.
86. A reading of Section 130E of the Customs Act, 1962 indicates
that a statutory appeal is maintainable only before the Hon’ble Supreme
Court against Order of the Appellate Tribunal herein, among other things,
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pertaining to determination of any question having a relation to the rate of
duty of customs or value of the goods for the purpose of assessment.
87. Therefore, these Writ Petitions are liable to be dismissed as only
the Hon’ble Supreme Court has jurisdiction to interfere with the impugned
Final Orders dated 19.05.2022 of the Appellate Tribunal impugned in
W.P.No.22819 of 2022 and W.P.No.22820 of 2022.
88. Even if these Writ Petitions were entertained as Civil
Miscellaneous Appeal under Section 130 of the Customs Act, 1962 as per
the Appellate Side Rules, they are liable to be dismissed in view of the
embargo under Section 130(1) of the Customs Act, 1962. There is a specific
embargo on this Court from entertaining a statutory appeal under Section
130 of the Customs Act, 1962 in respect of “rate of duty” of customs and
“valuation”.
89. For the sake of clarity, Section 130 of the Customs Act, 1962 is
reproduced below:
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022“130. Appeal to High Court.-
(1) An appeal shall lie to the High Court from every order
passed in appeal by the Appellate Tribunal on or after the
1 st day of July, 2003 (not being an order relating, among
other things, to the determination of any question having a
relation to the rate of duty of customs or to the value of
goods for purposes of assessment), if the High Court is
satisfied that the case involves a substantial question of
law.
(2) The Commissioner of Customs or the other party
aggrieved by any order passed by the Appellate Tribunal
may file an appeal to the High Court and such appeal
under this sub section shall be-
(a) filed within one hundred and eighty days from the
date on which the order appealed against is received
by the Commissioner of Customs or the other party;
(b) accompanied by a fee of two hundred rupee where
such appeal is filed by the other party; in the form of a
memorandum of appeal precisely stating therein the
substantial question of law involved.
(3) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
(4) The appeal shall be heard only on the question so
formulated, and the respondents shall, at the hearing of the
appeal, be allowed to argue that the case does not involve
such question.
Provided that nothing in this sub-section shall be deemed
to take away or abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other substantial
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question of law not formulated by it, if it is satisfied that
the case involves such question.
(5) The High Court shall decide the question of law so
formulated and deliver such judgment thereon containing
the grounds on which such decision is founded and may
award such cost as it deems fit.
(6) The High Court may determine any issue which –
a) has not been determined by the Appellate Tribunal;
or
b) has been wrongly determined by the Appellate
Tribunal, by reason of a decision on such question of
law as is referred to in sub- section (1).
(7) When an appeal has been filed before the High Court,
it shall be heard by a bench of not less than two Judges of
the High Court, and shall be decided in accordance with
the opinion of such Judges or of the majority, if any, of
such Judges.
(8) Where there is no such majority, the Judges shall state
the point of law upon which they differ and the case shall,
then, be heard upon that point only by one or more of the
other Judges of the High Court and such point shall be
decided in accordance to the opinion of the majority of the
Judges who have heard the case including those who first
heard it.
(9) Save as otherwise provided in this Act, the provisions of
the Code of Civil Procedure, 1908 (5 of 1908) relating to
appeals to the High Court shall, as far as may be, apply in
the case of appeals under this section.”
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90. Therefore, W.P.No.22819 of 2022 and W.P.No.22820 of 2022
have to be dismissed on account of jurisdiction and availability of an
alternate remedy before the Hon’ble Supreme Court.
91. Even otherwise, on merits also, these Writ Petitions are liable to
dismissed in the light of the decision of the Hon’ble Supreme Court in
Union of India Vs. Kumho Petrochemicals Company Limited, 2017 (315)
ELT 65. Ironically, the Petitioner has placed reliance on the same to canvass
a contra view based on a skewed reading of the said decision which affirmed
the view of the Delhi High Court in Kumho Petrochemicals Company
Limited Vs. Union of India rendered on 11.07.2014. We shall explain the
position.
92. The way in which the decision were read and explained to us
and the ratio of the said case was sought to be portrayed, impels us to
conclude that the Petitioner resorted to ocular deception to confuse us.
93. If few sentences from the decisions are read selectively as was
attempted, they could result in incorrect deduction of the ratio of the court.
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Socrates, the great Greek Philosopher said unexamined life is not worth
living. Like wise, we cannot author this decision without proper examination
of facts and the case laws. Decisions without proper examination of facts
and the case laws neither further cause of justice nor help the courts in
settling the law in its quest for the march of law. Decisions authoured in
hurry bury justice.
94. The decision of the Delhi High Court in Kumho Petrochemicals
Company Limited Vs. Union of India was rendered in the context of levy
of Anti-Dumping Duty vide Notification No.01/2009-Customs (ADD)
dated 02.01.2009 for the period of five years up to 01.01.2014.
95. The levy under Notification No.01/2009-Customs (ADD) dated
02.01.2009 lapsed on 01.01.2014. No sunset review for continuance of the
levy had commenced before the Designated Authority before Notification
No.01/2009-Customs (ADD) dated 02.01.2009 lapsed on 01.01.2014.
96. There, the levy was however extended on 23.01.2014 vide
Notification No.06/2014-Customs (ADD) dated 23.01.2014 although
Notification No.01/2009-Customs (ADD) dated 02.01.2009 had lapsed on
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01.01.2014.
97. It was in this background, the Delhi High Court in its decision
held that if the review exercise is not completed within one year, the effect
of that would be that after the lapse of one year, there would be no scope for
continuing anti-dumping duty, even if the review was pending before the 2nd
respondent/Designate Authority.
98. The Delhi High Court held that amendment to the parent
Notification No.01/2009-Customs (ADD) dated 02.01.2009 was to be made
before the said Notification ceazed to be in force. The High Court, thus,
rightly observed that Notification No.01/2009-Customs (ADD) dated
02.01.2009 was in the nature of temporary legislation and could not be
amended after it had lapsed.
99. The decision of the Division Bench of the Delhi High Court in
M/s.Kumho Petrochemicals Company Limited‘s case (cited supra) was
affirmed by the Hon’ble Supreme Court in Union of India Vs. M/s.Kumho
Petrochemicals Company Limited, 2017 (315) ELT 65.
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100. In fact in Paragraph No. 34, the Hon’ble Supreme Court
observed as under:-
“34. After giving due consideration to the arguments
advanced by the learned counsel for the parties, we are
inclined to agree with the High Court that proviso to sub-
section (5) of Section 9-A of the Act is an enabling
provision. That is very clear from the language of the said
provision itself. Sub-section (5) of Section 9-A gives
maximum life of five years to the imposition of anti-
dumping duty by issuing a particular notification. Of
course, this can be extended by issuing fresh notification.
However, the words “unless revoked earlier” in sub-
section (5) clearly indicate that the period of five years can
be curtailed by revoking the imposition of anti-dumping
duty earlier. Of course, provision for review is there, as
mentioned above, and the Central Government may extend
the period if after undertaking the review it forms an
opinion that continuation of such an anti-dumping duty is
necessary in public interest. When such a notification is
issued after review, period of imposition gets extended by
another five years. That is the effect of the first proviso to
sub-section (5) of Section 9-A. However, what we intend
to emphasise here is that even as per sub-section (5), it is
not necessary that in all cases anti-dumping duty shall be
imposed for a full period of five years as it can be revoked
earlier. Likewise, when a review is initiated but final
conclusion is not arrived at and the period of five years
stipulated in the original notification expires in the
meantime, as per the second proviso “the anti-dumping
duty may continue to remain in force”. However, it
cannot be said that the duty would automatically get
continued after the expiry of five years simply because
review exercise is initiated before the expiry of the61/87
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disputed before us, that issuance of a notification is
necessary for extending the period of anti-dumping duty.
Reason is simple. There no duty or tax can be imposed
without the authority of “law”. Here, such a law has to be
in the form of an appropriate notification and in the
absence thereof the duty, which is in the form of a tax,
cannot be extracted as, otherwise, it would violate the
provisions of Article 265 of the Constitution of India. As a
fortiori, it becomes apparent that the Government is to
exercise its power to issue a requisite notification. In this
hue, the expression “may” in the second proviso to sub-
section (5) has to be read as enabling power which gives
discretion to the Central Government to determine as to
whether to exercise such a power or not. It, thus, becomes
an enabling provision.”
101. In Paragraph No.36, the Hon’ble Supreme Court in Union of
India Vs. M/s.Kumho Petrochemicals Company Limited (cited supra),
thus observed as under:-
“36. The anti-dumping duty may continue, pending the
outcome of the review, for a further period not exceeding
one year. Thus, maximum period of one year is prescribed
for this purpose which implies that the period can be lesser
as well. The Government is, thus, to necessarily form an
opinion as to for how much period it wants to continue the
anti-dumping duty pending outcome of such a review.
Moreover, since the maximum period is one year, if the
review exercise is not completed within one year, the effect
of that would be that after the lapse of one year there
would not be any anti-dumping duty even if the review is
pending. In that eventuality, it is only after the review
exercise is complete and the Central Government forms the62/87
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022opinion that the cessation of such a duty is likely to lead to
continuation or recurrence of dumping and injury, it would
issue a notification extending the period of imposition of
duty. Therefore, there may be a situation where even when
the power is exercised under the second proviso and duty
period extended by full one year, the review exercise could
not be completed within that period. In that situation,
vacuum shall still be created in the interregnum beyond the
period of one year and till the review exercise is complete
and fresh notification is issued. This situation belies the
argument that extension under the second proviso is to be
treated as automatic to avoid the hiatus or vacuum in
between.”
102. In Paragraph 43 in Kumho Petrochemicals Company Limited
(cited supra), the Hon’ble Supreme Court held as under in the facts of the
case therein:
“43. Two things which follow from the reading of Section
9-A(5) of the Act are that not only the continuation of duty
is not automatic, such a duty during the period of review
has to be imposed before the expiry of the period of five
years, which is the life of the notification imposing anti-
dumping duty. Even otherwise, Notification dated 23-1-
2014 amends the ealrier Notification dated 2-1-2009, which
is clear from its language, and has been reproduced above.
However, when Notification dated 2-1-2009 itself had
lapsed on the expiry of five years i.e., on 1-1-2014, and
was not in existence on 23-1-2014 question of amending a
non-existing notification does not arise at all. As a
sequitur, amendment was to be carried out during the
lifetime of the Notification dated 2-1-2009. The High
Court, thus, rightly remarked that the Notification dated
2-1-2009 was in the nature of temporary legislation and
could not be amended after it lapsed.”63/87
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103. The Court further held that issuance of a notification is
necessary for extending the period of anti-dumping duty, However, if the
review exercise is not completed within one year from the date of initiation,
the effect of that would be that after the lapse of 1 year, there would not be
any Anti-Dumping Duty even if the review is pending.
104. Therefore, the decision of the Delhi High Court as affirmed by
the Hon’ble Supreme Court in Union of India Vs.Kumho Petrochemicals
Company Limited., 2017 (315) ELT 65 cannot be interpreted to mean that
the continuance of anti dumping levy whether vide Notification No.37/2015-
Customs (ADD) dated 06.08.2015 and/or Notification No.43/2016-Customs
(ADD) dated 08.08.2016 was contrary to the law settled by the Hon’ble
Supreme Court as both the 1st and the 2nd Sunset Review were initiated
before the Notification imposing Anti-Dumping Duty ceased to exist.
105. There, the 1st Sunset Review of Anti-Dumping Duty was
initiated only on 06.01.2014 before the Designated Authority, after
Notification No.01/2009-Customs (ADD) dated 02.01.2009 lapsed on
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01.01.2014. Notification No.06/2014-Customs (ADD) dated 23.01.2014
was issued thereafter. Since the 1st Sunset Review was initiated after
Notification No.01/2009-Customs (ADD) dated 02.01.2009 had ceased to
exist to operate from 01.01.2014, the Delhi High Court vide its order dated
11.07.2014 held that continuation of levy vide Notification No.06/2014-
Customs (ADD) dated 23.01.2014 was without the authority of law.
106. The Hon’ble Supreme Court thus upheld the decision of the
Delhi High Court in Union of India Vs. Kumho Petrochemicals Company
Limited., 2017 (351) ELT 65. As per the ratio of the Hon’ble Supreme
Court, if the Sunset Review of Anti-Dumping Duty imposed commences
before the expiry of initial period of five years, pending such review, Anti-
Dumping Duty can be extended for a period of one year. This is the also
scheme under the Customs Tarriff Act, 1975.
107. The Notification to continue the levy beyond the initial period
can be even after the expiry of the initial period of levy, provided the Sun
Set Review should have commenced before the expiry of the initial period of
levy.
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108. Thus, only if the Sunset Review is not initiated before the expiry
of the period prescribed in Notifications imposing Anti-Dumping Duty,
continuation of the levy cannot be permitted.
109. All that is required is that Sunset Review should have
commenced before the expiry of the initial period of levy. Notification
extending the levy can be issued thereafter. Mere delay in issuance of
Notification under the Customs Act, 1962 by the 1st Respondent is not fatal
to the levy as per the decision of the Hon’ble Supreme Court in Paragraph 34
in Kumho Petrochemicals.
110. Only, if the Sunset Review Notifications are initiated after
expiry of five years period imposed under a notification, the Anti-Dumping
Duty cannot be continued as held by the Hon’ble Supreme Court in Union of
India Vs. Kumho Petrochemicals Company Limited’s case (cited supra).
111. As per Article 141 of the Constitution of India, the law declared
by the Hon’ble Supreme Court is binding on all the Courts within the
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territory of India. It is the law of the land. There cannot be any different
interpretation to 2nd proviso to Section 9A(5) of the Customs Tariff Act,
1975.
112. Thus, the Petitioner is harbouring a mistaken notion to state that
the ratio of the Hon’ble Supreme Court in the above case comes to its rescue.
Therefore, W.P.No.22834 of 2022 also has to fail.
113. In our view, the interpretation of the learned counsel for the
Petitioner based on the decision of the Hon’ble Supreme Court in Union of
India Vs. Kumho Petrochemicals Company Limited., (cited supra) is
incorrect.
114. The undisputed facts of the cases is that Anti-Dumping Duty on
the subject goods viz. Viscose Staple Fibre (VSF) and other goods were
imposed and levied for the first time by the 1st Respondent vide Notification
No.76/2010-Customs (ADD) dated 26.07.2010 for a period of 5 years. The
said levy came to an end on 25.07.2015.
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115. In the present case, Notification No.76/2010-Customs (ADD)
dated 26.07.2010 was in the background Initiation of investigation before
the 2nd Respondent/Designated Authority which commenced on 19.04.2009.
The 2nd Respondent/Designated Authority gave its final finding on
17.05.2010.
116. This levy under Notification No.76/2010-Customs (ADD)
dated 26.07.2010 was to extend up to 25.07.2016 for a period one year from
the expiry of five-year period on 25.07.2015 vide Notification No.37 of
2015 Customs (ADD) dated 06.08.2015 since sunset review had
commenced on 22.07.2015.
117. Before the expiry of period one year, under Notification No.37
of 2015 Customs (ADD) dated 06.08.2015, the 2nd respondent/Designated
Authority gave its final finding on Final Finding in Notification
No.15/9/2015-DGAD dated 08.07.2016, pursuant to which Notification
No.43/2016-Customs (ADD) dated 08.08.2016 was issued.
118. The 2nd Respondent/Designated Authority vide Final Finding
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in Notification No.15/9/2015-DGAD dated 08.07.2016 recommended for
extending the period of levy of Anti-Dumping Duty for a period of five
years. This finding was before the expiry of the extended period till
25.07.2016 under Notification No.37 of 2015 Customs (ADD) dated
06.08.2015.
119. Thus, Notification No.43/2016-Customs (ADD) dated
08.08.2016 was issued by the 1st Respondent pursuant to the Final Finding
dated 08.07.2016 of the 2nd Respondent/Designated Authority vide
Notification No.15/9/2015-DGAD.
120. Again there was a 2nd hiatus between 25.07.2016 and 07.08.2016
for a period of 13 days since Notification No.43/2016-Customs (ADD)
dated 08.08.2016 was issued for a period of 5 years pursuant to the final
findings of the 2nd Respondent/Designated Authority in Notification
No.15/9/2015-DGAD dated 08.07.2016. Thus, the levy was expired on
07.08.2021.
121. The levy was further extended vide Notification No.39/2021-
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Customs (ADD) dated 30.06.2021 till 31.10.2021 pending final finding.
122. However, the hiatus between the initial notifications and their
continuance of is of no significance but for a skewed and distorted reading
of the decision of the Dehi High Court in Kumho Petrochemicals
Company Limited Vs. Union of India (cited supra) which decision stand
affirmed by the Hon’ble Supreme Court in Union of India Vs. Kumho
Petrochemicals Company Limited.,(cited supra).
123. Since the sunset review commenced before the expiry of the
initial period of expiry of 5 years on 25.07.2015 under Notification
No.76/2010-Customs (ADD) dated 26.07.2010, the Government was
justified in issuing Notification No.37/2015-Customs (ADD) dated
26.08.2015.
124. As the final finding was given by the 2nd Respondent on
08.07.2016, pursuant to which Notification No.43/2016-Customs (ADD)
dated 08.08.2016 was issued cannot be questioned even as per the decision
of the Hon’ble Supreme Court in M/s.Kumho Petrochemicals Company
Limited‘s case (cited supra).
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125. The following tabulation explains the position:-
S. Event Date Relevant date Expiry date of
No for period the levy period
commencement
of levy.
1 Notification for initiating 19.04.2009 N.A N.A
investigation before the 2nd
Respondent/Designated Authority.
2 Final Finding of the 2nd 17.05.2010 N.A N.A
Respondent/Designated Authority.
3 Notification No.76/2010-Customs 26.07.2010 26.07.2010 25.07.2015
(ADD)
4 Initiation of 1st Sunset Review by 22.07.2015 Initiation before 25.07.2015
the 2nd Respondent/Designated
Authority.
6 Notification No.37/2015-Customs 06.08.2015 25.07.2015 25.07.2015
(ADD).
5 Final Finding of the 2nd 08.07.2016
Respondent/Designated Authority
vide Notification No.15/9/2015-
DGAD pursuant to 1st Sunset
Review dated 22.07.2015.
7 Notification No.43/2015-Customs 08.08.2016 07.08.2021
(ADD)
8 Notification of the 2nd 22.02.2021
Respondent/Designated Authority
nd
No.07/03/2021 initiating 2 Sunset
Review.
9 Notification No.39/2021 Customs 30.06.2021 31.10.2022
(ADD)
10 Final Finding of the 2nd 08.08.2017
Respondent/Designated Authority
vide Notification No.07/03/2021
pursuant to 2nd Sunset Review
11 Notification No.44/2021 Customs 12.08.2021 Rescinding of the Notification
(ADD) No.43/2015 Customs (ADD)
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126. Since in the present case, the 1st Sunset Review was initiated by
the 2nd Respondent/Designated Authority on 22.07.2015, 3 days before the
expiry of the five year period under Notification No.76/2010-Customs
(ADD) dated 26.07.2010, the levy continued vide Notification No. 37 of
2015 Customs (ADD) dated 06.08.2015 cannot be held to be contrary to the
law settled by the Delhi High Court as affirmed by the Hon’ble Supreme
Court in Kumho Petrochemicals Company Limited Vs. Union of India
(cited supra).
127. This was on the strength of the 2nd proviso to Section 9A(5) of
the Customs Tariff Act, 1975. As per Sub-Section 5 to Section 9A of the
Customs Tariff Act, 1975, Anti-Dumping Duty imposed shall remain in
force for a period of 5 years from the date of such imposition unless it is
revoked earlier, in which case, it can cease to have effect.
128. As per 2nd Proviso to Section 9A(5) of the Customs Tariff Act,
1975, when review is initiated before the expiry of five years, but a
conclusion has not been arrived before the aforesaid period of five years, the
Central Government may by notification, extend the levy for a period not
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exceeding one year pending the outcome of review. This was permissible
under Section 9A(1) & (5) of the Customs Tariff Act, 1975.
129. Merely because there was a hiatus of 11 days between
25.07.2015 and 06.08.2015 i.e., between the end of the 1st five years period
under Notification No.76/2010-Customs (ADD) dated 26.07.2010 and levy
imposed for a further period of one year vide Notification No.37 of 2015
Customs (ADD) dated 06.08.2015 pending Final Finding of the 2nd
Respondent/Designated Authority which was initiated on 22.07.2015, will
not mean, that the levy continued vide Notification No.37 of 2015 Customs
(ADD) dated 06.08.2015 was without the authority of law and contrary to
Art.265 of the Constitution of India.
130. If the submission of the learned counsel for the Petitioner that
since the initial levy of Anti Dumping Duty vide Notification No.76/2010-
Customs (ADD) dated 26.07.2010 came to an end on 25.07.2015 and was
continued only vide Notification No.37/2015-Customs (ADD) dated
06.08.2015 after a hiatus of 11 days, these Writ Petitions have to be
accepted, it would result in absurd situation and also contrary to the scheme
of the Customs Tariff Act, 1975.
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131. As far as the challenge to the impugned Final Order dated
19.05.2022 passed by the Appellate Tribunal in Anti-Dumping Appeal
No.50571 of 2022 impugned in W.P.No.22820 of 2022 filed by the
Petitioner on merits is concerned, it was held that is hopelessly time-barred
before the Appellate Tribunal.
132. The challenge in the aforesaid Anti-Dumping Appeal No.50571
of 2022 before the Appellate Tribunal which had culminated in the
impugned Final Order dated 19.05.2022 impugned in W.P.No.22820 of
2022 was against the Final Findings No.15/09/2015-DGAD dated
08.07.2016 of the 2nd Respondent/Designated Authority and Customs
Notification No.43/2016-Customs (ADD) dated 08.08.2016 of the 1st
Respondent.
133. Anti-Dumping Appeal No.50571 of 2022 against the Final
Findings No.15/09/2015-DGAD dated 08.07.2016 of the 2nd
Respondent/Designated Authority and Customs Notification No.43/2016-
Customs (ADD) dated 08.08.2016 issued by the 1st Respondent was
belated and long after other notifications came to be issued.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
134. We find no reason to differ with the conclusion arrived in the
impugned Final Order dated 19.05.2022 in Anti Dumping Appeal
No.50571 of 2022.
135. The challenge was perhaps inspired from a skewed reading of the
decision of the Delhi High Court in Kumho Petrochemicals Company
Limited Vs. Union of India (cited supra) which was rendered on
11.07.2014 which decision stands affirmed by the Hon’ble Supreme Court in
Union of India Vs. Kumho Petrochemicals Company Limited., (cited
supra). As mentioned above, both decisions do not come to the aid of the
petitioner. We shall explain the position in the ensuing paragraphs.
136. In the present case, the 2nd Respondent/Designated Authority
had also given its Final Findings subsequently on 31.07.2021 and
recommended for withdrawing Anti-Dumping Duty imposed vide
Notification No.7/03/2021-DGTR dated 31.07.2021 pursuant to which
Notification No. 44/2021 (ADD) dated 12.08.2021 was issued to rescinding
Notification No.43/2016-Customs (ADD) dated 08.08.2016. The Petitioner
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itself was the appellant before the Principal Bench of CESTAT, New Delhi
in Anti Dumping Appeal No.50570 of 2022 against the finding of the 2nd
Respondent/Designated Authority in Notification No.7/3/2021-DGTR
dated 31.07.2021 (wrongly mentioned as 30.07.2021 in the impugned order)
pursuant to which Notification No.44/2021-Customs (ADD) dated
12.08.2021 was issued by the 1st Respondent.
137. Anti-Dumping Appeal No.50571 of 2022 which was also filed
by the Petitioner was filed belatedly against the Final Findings
No.15/09/2015-DGAD dated 08.07.2016 and Customs Notification
No.43/2016-Customs (ADD) dated 08.08.2016. It has been rightly
dismissed by the Principal Bench of CESTAT, New Delhi and impugned in
W.P.No.22820 of 2022.
138. Yet, the petitioner has filed these Writ Petitions.
139. The 3rd Respondent/Private Respondent was the appellant before
the Principal Bench of CESTAT, New Delhi in Anti-Dumping Appeal
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
No.51490 of 2022 against the second final finding of the 2nd
Respondent/Designated Authority pursuant to the 2nd Sunset Review vide
Notification No.7/3/2021-DGTR dated 31.07.2021 (wrongly mentioned as
30.07.2021) in Final Orders Nos.50436 to 50442 of 2022 of the Principal
Bench of CESTAT, New Delhi.
140. Subsequent Notification No.43/2016 dated 08.08.2016 Customs
(ADD) which was issued was pursuant to the conclusion of the 1st Sunset
Review based on the Final Finding of the 2nd Respondent Designated
Authority in Notification No.15/9/2015-DGAD dated 08.07.2016.
141. Thus, continuation of Anti-Dumping Duty was strictly in
accordance with Paragraph No. 34 of the decision of the Hon’ble Supreme
Court in UOI Vs. Kumho Petrochemicals Company Limited (cited
supra), wherein it was held that when a review is initiated but final
conclusion is not arrived at and the period of five years stipulated in the
original notification expires in the meantime, as per the second proviso the
anti dumping duty may continue to remain in force.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
142. The argument that there was a hiatus between 25.07.2015 and
06.08.2015 and therefore Notification No.37/2015-Customs (ADD) dated
06.08.2015 was issued belatedly cannot be countenanced as the review
commenced on 22.07.2015 i.e., before 25.07.2015 (being the end of 5 year
period) from Notification No.76/2010-Customs (ADD) dated 26.07.2010.
143. Though, the initiation of the 2nd Sunset Review vide Review
Notification No.07/03/2021-DGTR dated 22.02.2021 has culminated in
Final Finding of the 2nd Respondent/Designated Authority vide
Notification No.07/3/2021-DGTR dated 31.07.2021 and rescinding of
Customs Notification No.43/2016-Customs (ADD) dated 08.08.2016 of
the 1st Respondent vide issuance of Notification No.44/2021-Customs
(ADD) dated 12.08.2021. Yet, the petitioner has filed W.P.No.22819 of
2022.
144. The stand of the Petitioner is absurd and self defeating.
Therefore, W.P.No.22819 of 2022 is liable to be dismissed.
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145. The challenge to the Sunset Review Initiation Notification
No.07/03/2021-DGTR dated 22.02.2021 and the final finding of the 2nd
Respondent/Designated Authority in Notification F.No.07/03/2021-DGTR
dated 31.07.2021 cannot be countenanced as the 2nd mentioned notification
itself recommends that there is no justification for recommending the
continuation of Anti-Dumping Duty.
146. Therefore, the challenge to the levy under the Notification cannot
be countenanced. The 1st Respondent Government in its wisdom based on
the findings of the 2nd Respondent has concluded not to extend the levy and
thus, issued Notification No.44/2021-Customs (ADD) dated 12.08.2021.
147. The decision to issue Notification No.44/2021-Customs (ADD)
dated 12.08.2021 preceded a 2nd sunset review of the 2nd
Respondent/Designated Authority which culminated in a finding of the 2nd
Respondent dated 31.07.2021 recommending withdrawal of Anti-Dumping
Duty recommended vide Notification No.15/9/2015-DGAD dated
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08.07.2016 and enforced vide Customs Notification No.43/2016-Customs
(ADD) dated 08.08.2016.
148. The said Anti-Dumping Appeal No.50571 of 2022 was perhaps
inspired from an incorrect deduction of the ratio of the decision of the
Hon’ble Supreme Court in Union of India Vs. Kumho Petrochemicals
Company Limited, 2017 (351) E.L.T. 65 (SC). Therefore, W.P.No.22820
of 2022 also has to fail.
149. Even if there was a hiatus, it is of no significance in the light of
the decision of the Hon’ble Supreme Court in Kumho Petrochemicals
Company Limited (cited supra). Even if there was a delay in giving the
finding within the stipulated period, the question of not extending the
notification for levy of Anti-Dumping Duty would not arise in terms of the
decision of the Hon’ble Supreme Court in M/s.Kumho Petrochemicals
Company Limited‘s case (cited supra), if the Sunset Review was
commenced before the expiry of the Notification.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
150. We find no error in the conclusion arrived in Paragraph 81 of the
Impugned Order dated 19.05.2022 in Anti-Dumping Appeal No.51490 of
2021 and Anti-Dumping Appeal No.50570 of 2022 content of which has
been extracted.
151. Consequently, W.P.No.22819 of 2022 is liable to be dismissed
and is accordingly dismissed.
152. The challenge to the impugned Order dated 19.05.2022 passed
in Anti-Dumping Appeal No.50571 of 2022, which is impugned in
W.P.No.22820 of 2022. The petitioner had challenged the Final Finding of
the 2nd Respondent dated 08.07.2016 recommending continuation of the
definitive Anti-Dumping Duty and the consequential Notification
No.43/2016-Customs (ADD) dated 08.08.2016 also cannot be countenanced
in the light of decision in Tangshan Sanyou Group Hong Kong
International Trade Co. Ltd Vs. Union of India,2017 (349) E.L.T. 667 (Tri-
Del). The aforesaid decision of the Principal Bench of CESTAT, New Delhi
has not been disturbed.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
153. The Appellate Tribunal in the impugned order followed the
decision of the Tribunal in the aforesaid case. Relevant portion reads as
under:-
“The appellant is an exporter of Viscose Staple Fibre
excluding bamboo fibre (subject goods) and is located in
Hong Kong. They participated in the Sunset review
investigation of the anti-dumping duty imposed on subject
goods when imported from China PR and Indonesia. The
present appeal is against final finding dated 8-7-2016* of
the Designated Authority (DA), Directorate General of
Anti-Dumping and Allied Duties, Ministry of Commerce
and Industry and Customs Notification No. 43/2016-CUS
(ADD), dated 8-8-2016 which was issued based on the
said final finding of the DA. The final finding now
impugned is on conclusion of Sunset review of anti
dumping duty imposed on the subject goods. The Sunset
review was done on a petition filed by Association of Man
made Fibre Industry of India on behalf of Domestic
Industry (DI). M/s. Grasim Industries Ltd. is the sole
producer who furnished all information for the review. The
DA concluded that the subject goods continue to enter into
the market with dumped prices. Dumping margin and
injury margin are positive and significant. Performance of
the Domestic Industry has worsened in terms of various
economic parameters. There is likelihood of price under
cutting in case of cessation of anti-dumping duty. Based on
such finding he recommended continuation of definitive
anti-dumping duty on all imports of subject goods.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
Accordingly, the Customs Notification dated 8-8-2016 was
issued by the Ministry of Finance to give effect to the
recommendations.
12. After having carefully considered the rival submissions
we note that anti-dumping duty is a trade remedy measure
to counter dumping. Imposition of anti-dumping duty is
authorized in terms of an international agreement under
WTO. Protection of domestic industry of the Member
country against unfair trade practices is the rationale in
imposing such duty. Section 9A(5) of the Customs Tariff
Act, 1975 provides for review of the anti-dumping duty
imposed. If upon review, if the Government is of the
opinion that the cessation of such duty is likely to lead to
continuation or recurrence of dumping and injury, it may,
extend the period of such imposition for a further period of
5 years. In the facts of the present case, we find the
appellant could not place before us any empherical
evidence to counter the final findings on Sunset review by
the DA. It has been clearly recorded that cessation of
existing anti-dumping duty on the subject goods is likely to
result in recurrence of dumping and injury to the DI.
Basically, we note that the present impugned findings are
in continuation of the earlier findings as it has been
recorded that there is a need to continue the imposition of
anti-dumping duty in terms of applicable legal provisions
after due consideration of the economic parameters. We
find no merit in the present appeal to persuade us to
interfere with the impugned final findings or the customs
notification issued based thereon. Accordingly, we
dismiss the appeal. The stay application linked to the
appeal is also disposed of.” * (para 32)
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154. This was taken note of by the Appellate Tribunal while passing
Order dated 19.05.2022 in Anti-Dumping Appeal No.50571 of 2022. The
Appellate Tribunal has also taken note of the decision of the Hon’ble
Supreme Court in Kumho Petrochemicals referred to supra.
155. We therefore agree with the views expressed by the Appellate
Tribunal in the impugned Final Order No.50435 of 2021 dated 19.05.2022
in Anti-Dumping Appeal No.50571 of 2022 that there is no requirement
that a notification has to be issued by the Central Government under the first
proviso to Section 9A(5) of the Customs Tariff Act only during the lifetime
of the earlier notification for continuation of anti-dumping duty for a period
beyond five years.
156. Consequently, W.P.No.22820 of 2022 is also liable to be
dismissed. It is accordingly dismissed. Therefore, W.P.No.22830 of 2022 is
also liable to be dismissed and is accordingly dismissed.
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157. In the light of the above discussion, W.P.No.22834 of 2022 is
also liable to be dismissed and is accordingly dismissed.
158. In the result, all the four Writ Petitions are dismissed. No costs.
Connected Writ Miscellaneous Petitions are closed.
[R.S.K., J.] [C.S.N., J.]
09.05.2025
arb/mrr
Index : Yes/No
Neutral Citation : Yes/No
Speaking Order (or) Non-Speaking Order
To
1.The Secretary,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi – 110 001.
2.The Designated Authority,
Directorate General of Trade Remedies,
Having their address at Ministry of
Commerce and Industry,
5 – Parliament Street,
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
Jeevan Tara Building,
New Delhi – 110 005.
3.The Association of Man-Made Fibre
Industry of India,
th
5 Floor, Resham Bhavan,
78, Veer Nariman Road,
Mumbai – 400 020.
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W.P.Nos.22819, 22820, 22830 and 22834 of 2022
R.SURESH KUMAR, J.
and
C.SARAVANAN, J.
arb/mrr
W.P.Nos.22819, 22820,
22830 & 22834 of 2022
09.05.2025
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