By TIOL News Service

AHMEDABAD, DEC 22, 2016: ANTI-DUMPING duty was imposed on the imports of Soda Ash, originating in or exported from China PR, EU, Kenya, Pakistan, Iran, Ukraine and USA by notification 34/2012-Cus(ADD) dated 03.07.2012 for a period of five years.

The notice for initiating investigation under Rule 23 of the Rules was issued on 21.07.2015 & 01.10.2015, and ultimately the Rule 16 Disclosure of information came to be provided on 14.09.2016.

The petitioners contended that this information runs into more than 50 pages and that essentially three factors, which were required to be considered and information whereon was required to be disclosed to the interested party, were not disclosed and this would handicap the petitioners from filing their reply.

It is also submitted that the designated authority had not taken into consideration the factors which are relevant for forming even  prima facie  opinion  qua  reviewing of existing Anti-Dumping duty and, therefore, there has been violation of the principles of natural justice.

Observing that prima facie the submissions made by petitioners are correct, it was instructed that the authorities go on with the inquiry and petitioners may also place on record with the authorities their submissions, but the final findings may not be rendered without there being sufficient opportunity and supply of material legitimately admissible to the petitioners.

The Notice was returnable on 17.10.2016 but adjourned to 15.11.2016 and later to 30.11.2016.

The Ad-interim relief granted earlier was continued.

The designated authority in its final findings dated 23.09.2016 came to the conclusion that -

(i) although dumping has continued despite the anti-dumping duties in force and the dumping of subject goods from the subject countries is positive during the Period of Investigation (hereinafter referred to as POI), the adverse impact of the same on the volume, prices and profitability of the domestic industry is absent during the POI as well as post-POI;

(ii) both undercutting and underselling are negative during POI as well as post-POI;

(iii) the injury margin is negative during POI as well as post-POI;

(iv) the likely injury margin, on the basis prices of third country exports by the subject countries during the POI are also negative;

(v) price suppression and price depression effects are absent;

(vi) all most all volume parameters and price parameters of the domestic industry are positive during POI and post-POI and there is a remarkable improvement of lasting nature in the performance of the domestic industry;

(vii) although dumping continues, neither it has caused injury to the domestic industry, nor is there any likelihood of causing injury in the event of revocation of the antidumping duties,

and has recommended revocation of the anti-dumping duties imposed on the imports of the subject goods, originating in or exported from the subject countries;

On 26.11.2016, the petitioners moved applications praying that the respondent No.1 be restrained from acting upon the final findings dated 23.09.2016 and issuing notification under rule 18 of the Rules.

The High Court observed thus:

On 30th November 2016, the matters came to be adjourned to 07.12.2016/08.12.2016, on which date, the respondent contendedthat the question of maintainability of the petition needs to be addressed.

The Assistant Solicitor General made the following submissions -

+ that the designated authority has notified the final findings which are recommendatory in nature. The Central Government may or may not accept the same.

+ in case the Central government accepts the same, it would be required to issue a notification under sub-section (1) of section 9A of the Customs Tariff Act, 1975, revoking the earlier notification dated 03.07.2012 whereby, the anti-dumping duty came to be imposed on soda ash.

+ that against the order passed by the Central Government under section 9A of the Tariff Act, an appeal lies to the CESTATunder section 9C of the Tariff Act. [ Saurashtra Chemicals Ltd. v. Union of India, (2009) 17 SCC 529, Tata Chemicals Ltd. (2) v. Union of India, (2008) 17 SCC 180 refers]

The counsel for the respondent No.7 submitted -

+ that the petition was filed at the stage of disclosure statement made under rule 16 of the rules. The petitioner has simultaneously participated as a member of the Alkali Manufacturers Association of India which raised objections which were duly considered by the designated authority.

+ the petitions which were filed at the stage of disclosure statement have been rendered infructuous in view of the subsequent events which have occurred. Now, the challenge is to the final findings, which are merely recommendatory in nature, and in case the same are accepted by the Central Government, the appeal would lie to the CESTAT under section 9C of the Act. [ Association of Synthetic Fibre Industry v. J. K. Industries Ltd. = 2005-TIOL-179-SC-CUS refers]

+ that in terms of rule 18 of the rules, the last date for issuance of notification by the Central Government is on or about 23.12.2016 and hence, the interim relief granted earlier deserves to be vacated and the Central Government should be permitted to apply its mind to the final findings of the designated authority and take a decision thereon.[ Nitco Tiles Ltd. v. Gujarat Ceramic Floor Tiles Mfg. Association = 2005-TIOL-177-SC-CUS ,]

The counsel for the petitioners inter alia submitted -

+ that against a disclosure statement, there is no provision for appeal and similar is the case with final findings. Therefore, at present, against the final findings, the petitioner does not have any remedy by way of appeal and the only remedy is by way of a writ petition under Article 226 of the Constitution of India and, therefore, the contention of there being an alternative remedy is without any basis.

+ that the disclosure statement was issued on 14.09.2016 and the final findings were to be issued on or before 30.09.2016, leaving a very little time for the parties to be afforded a reasonable opportunity of hearing.

+ that it was always permissible for the Central Government to extend the time for issuance of final findings by a period of six months and hence, the extension of two months leaving a period of only sixteen days for consideration of the response to the disclosure statement is highly unreasonable and amounts to violation of the principles of natural justice.

+ that if the interim relief is vacated and the Central Government is permitted to proceed further and publish a notification as contemplated under rule 18 of the rules, the consequence would be that huge stocks of Soda Ash would be imported and pushed into the domestic market at less than normal prices, thereby seriously prejudicing the rights of the petitioners.

The High Court observed -

Maintainability of petition:

++ This court in Alembic Ltd. v. Union of India, = 2012-TIOL-150-HC-AHM-CUS , has held that the combined effect of the statutory provisions contained in the rules leads to the conclusion that the designated authority under rule 3 of the rules acts for and on behalf of the Government while carrying out the investigation to determine the existence, degree and effect of the alleged dumping. In that view of the matter, the findings of the designated authority with respect to such issues may not be open to question by the Central Government.

++ When,if it is not open to the Central Government to question the final findings recorded by the designated authority, the remedy suggested by the learned counsel for the respondents that the petitioners may make representations to the Central Government is illusory.

++ It is settled legal position as held by the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1, that under article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not entertain a writ petition.

++ In the present case, apart from the fact that there is no effective or efficacious remedy against the disclosure statement or the final findings, the petitioners have alleged that there is a breach of the principles of natural justice. Therefore, in the absence of any alternative remedy being available the question of operation of the bar of alternative remedy would not arise. Even otherwise, in the light of the contentions regarding breach of principles of natural justice, the petition even otherwise is maintainable. The contention that the petition is not maintainable, therefore, does not merit acceptance and is, accordingly, rejected.

++ If the finding regarding anti-dumping is negative, the Central Government has no option but to revoke the duty. In these circumstances as well as in the light of the observations of this court in Alembic Ltd. V. Union of India (supra), the present petition challenging the disclosure statement and the final findings cannot be said to be premature .

Whether interim relief should be continued:

++ The final findings have been published on 23rd September, 2016, accordingly, the period within which the Central Government is required to issue a notification in the Official Gazette is three months from the said date.

++ The balance of convenience does not lie in favour of passing or continuing any of the interim orders passed by the High Court. Thus, it appears that if the statutory period lapses, albeit on account of the interim relief granted by this court, the entire proceedings may stand frustrated.

++ Insofar as the submission that this court may clarify that the respondents shall be entitled to exclusion of the period during which the interim order operates while computing the period of three months under rule 18 of the rules is concerned, it may be noted that whenever the Legislature wanted to grant the benefit of extension of time when proceedings are stayed by the court, it has expressly provided for the same.

++ However, neither the Customs Tariff Act, 1975 nor the Anti-Dumping Duty Rules, contemplate automatic extension of the time limit in case any action or proceeding to be taken under the rules is stayed by an order of a court.

++ It is a well settled canon of law that if the statute prescribes a time limit for any action/proceeding, the High Court in exercise of powers under Article 226 of the Constitution of India can neither curtail nor extend such period. Therefore, the submission that the interim relief granted earlier be extended subject to such clarification, cannot be accepted.

++ Having regard to the rival submissions and the facts and circumstances of the case as discussed hereinabove, this court of the view that the balance of convenience lies in favour of the petitioners.

++ However, the interim relief as granted earlier cannot be continued as the same may result in the lapse of the statutory period and render the proceedings infructuous. That, however, does not mean that the petitioners are not entitled to any interim relief.

++ As per the submissions advanced by the counsel for the petitioners, in case the Central Government accepts the recommendations and issues a notification revoking the anti-dumping duty, there is likelihood of large scale dumping of soda ash in the domestic market which would prejudicially affect their rights, whereas on behalf of the private respondents/domestic consumers it has been contended that any delay in issuance of a notification under rule 18 of the rules by the Central Government prejudicially affects them as they would not be entitled to refund of the anti-dumping duty paid by them in the interregnum as their rights get crystallised only upon issuance of a notification.

++ In this backdrop, the court is of the view that the interests of all the parties could be balanced if the Central Government is permitted to proceed further pursuant to the final findings, if it so deems fit.

++ If the Central Government decides not to revoke the anti-dumping duty, the present petitions may not survive. However, in case a notification revoking the anti-dumping duty is published in the Official Gazette, the interests of the petitioners can be taken care of by providing that in such an eventuality, such notification shall not be acted upon till the final hearing of the petitions.

++ The court is of the view that the matters require consideration. Hence, issue Rule returnable on 16th January, 2017.

Conclusion:

The ad-interim relief granted earlier is modified thus:

This order was pronounced on 13th December 2016.

Stop Press:

On the subject matter of imposition of ADD on Soda Ash, the Central Government issued two notifications and the implications thereof are as below -

(See 2016-TIOL-3080-HC-AHM-CUS )