1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 3046-3048_OF 2020

(Arising out of SLP (C) NO(S). 22582-22584 OF 2019)

THE DESIGNATED AUTHORITY & ORS. ...APPELLANT(S)

VERSUS

M/S THE ANDHRA PETROCHEMICALS LIMITED ...RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1.Leave granted. With consent, the appeals were heard finally. The present

appeals by special leave impugns three orders of the Telangana High Court, dated

28.08.2018, 22.07.2019 and 05.08.2019 respectively. These were in the context of

the respondent/writ petitioners’ (hereafter “Andhra Petro”) challenge to orders of

the Designated Authority (hereafter “DA”), which related to the question of

imposition of anti-dumping duty.

2.The facts are that Andhra Petro applied to the Central Government, seeking

imposition of anti-dumping duty on imports of normal Butanol or N-butyl alcohol

originating in and exported into India from Saudi Arabia. Butanol is a basic organic

chemical and a primary alcohol; it is an excellent solvent for acid-curable lacquers

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and baking finishes. A large part of normal Butanol is converted into derivatives

for use as solvents in coating industries. This application resulted in the initiation

of investigation by the designated authority into the import of the subject articles

from Saudi Arabia, by notification dated 02.09.2016.

3.Andhra Petro furnished import data for the period of three months. The

period of investigation was from April, 2015 to March, 2016. The Designated

Authority granted a public/oral hearing to interested parties on 23.06.2017

followed by written submissions. Andhra Petro also attended the hearing and filed

detailed submissions on 30.06.2017. It alleged that the information given was not

only for the period of investigation but also for the entire injury period, 2012-13 to

2014-15. Andhra Petro admitted that dumping from Saudi Arabia occurred in the

last three months of the period of investigation, i.e., January to March, 2016, and

that there were no imports from Saudi Arabia in the first nine months of the period

of investigation, i.e., from April to December, 2015. It claimed that dumping of the

same product also took place from Malaysia, Singapore, South Africa, the USA

and the European Union. The period of investigation by the Designated Authority

covered investigation in respect of imports from these exporting territories too. The

application further claimed that though imports from Saudi Arabia started only in

January, 2016, the volume of such dumped imports was significant enough to

cause material injury to the domestic industry. This was to the extent of capturing

39% of the market share in India.

4.Andhra Petro asserted that the exports from Saudi Arabia into India were not

casual exports but were made with the intention of grabbing the Indian market.

Such exports into India from Saudi Arabia were undercutting and depressing the

prices of the domestic industry to a significant extent, according to it, and

performance of the domestic industry during the period, January to March, 2016,

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was adverse in terms of profits and returns on investments. The following

parameters, per the petitioner company, demonstrated the causal link between the

said exports and the injury caused. The dumped imports from the subject country

entered the Indian market in the period Jan-Mar 2016 [last 3 months of the period

of investigation (“POI”)] in such significant volumes that improvement in volume

parameters seen in the performance of the domestic industry in the first 9 months

of the POI (Apr-Dec 2015), was completely wiped off. There was significant

difference between the prices offered by the domestic industry and the foreign

producer. Thus, the domestic industry was unable to raise the prices above the

costs as a result of dumping of the product in the country.

5.The domestic industry was able to increase its sales at the cost of

sub-optimal prices in the first 9 months of the POI (Apr-Dec 2015). However, the

sales volumes declined drastically in the period Jan-Mar 2016 (last 3 months of the

POI) even when the domestic industry offered still lower prices as fresh dumping

from Saudi Arabia started in this period. Nevertheless, it was alleged that the

imports were significantly undercutting the domestic prices. Resultantly, the price

undercutting was creating price pressure on the domestic industry, and the

reduction in profits directly resulted in deterioration in returns on capital employed

and cash flow. Thus, deterioration in profits, return on capital employed and cash

flow was due to the dumped imports.

6.In the investigation proceedings, Andhra Petro submitted its written

submissions on 27.10.2017, pursuant to the second oral public hearing held on

24.10.2017 owing to the change in the incumbent holding the office of the

Designated Authority. It also filed rejoinder submissions on 01.11.2017. In terms of

Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti-

dumping Duty on Dumped Article and for Determination of Injury) Rules, 1995

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(hereafter the “Rules of 1995”), the Designated Authority disclosed essential facts

under consideration, which would form the basis for his final conclusion under the

Disclosure Statement dated 14.11.2017. Andhra Petro filed its comments on such

statement, on 21.11.2017. The Designated Authority issued the Final Findings, by

Notification dated 28.11.2017, terminating the investigation under Rule 14(b) of

the Rules of 1995.

7.The Designated Authority recorded the following findings:

(i) Period of last 3 months of POI of exports of subject goods from Saudi

Arabia was insufficient to evaluate injury to the domestic industry as

material injury determination would require data on imports and domestic

industry’s sales for a longer duration.

(ii) The short period of production especially commercial production of

just one month also constrained determination of a representative and

realistic normal value for cooperating producers/exporters.

(iii)Causal link between imports from Saudi Arabia and injury to the

domestic industry could not be conclusively established on the basis of three

months of export period.

(iv)The Authority did not consider it appropriate to recommend levy of

Anti-Dumping Duty on the subject goods from Saudi Arabia and terminated

the investigation under Rule 14(b) of Anti-Dumping Rules.

8.Andhra Petro approached the Telangana High Court, complaining that its

two applications, dated 18.10.2016 and 02.12.2016 had not been duly considered

in accordance with provisions of the Customs Tariff Act, 1975, especially Rules

2(b) and 2(d) of the Rules of 1995. This writ petition was allowed by order dated

09.02.2018, directing the Designated Authority to consider the applications dated

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18.10.2016 and 02.12.2016 afresh, after evaluation of the entire information placed

before him in accordance with the provisions of the Customs Tariff Act, 1975 and

the Rules of 1995, more particularly Rules 2(b) and 2(d) of the Rules of 1995 and

pass appropriate orders within a time frame. Further to these directions, the

Designated Authority passed an order dated 05.03.2018 declining to initiate

anti-dumping investigation. This order was impugned by Andhra Petro in another

writ petition (WP 11116/2018, hereafter “the second writ petition”) before the

Telengana High Court.

9.Before the High Court, Andhra Petro now contended that it was a producer

of 2-EH which is a “like article” (as defined under Rule 2(d) of the Rules of 1995),

to 2-PH and INA. It contended that it satisfied the criteria under Rule 2(b) read

with Rule 2(d) of the Rules of 1995 to file a petition for imposition of anti-

dumping duty concerning imports of the said alcohols on behalf of the domestic

industry. It was further contended that in spite of a specific direction of this Court

dated 09.02.2018 passed in WP 25988/2017, the Designated Authority did not

determine whether the dumped products cause injury to the domestic industry in

the commercial competition with like articles made in India and passed the

impugned order declining to initiate anti-dumping investigation.

10.The Central Government, which filed its return, to the Writ proceeding

argued that Andhra Petro produced only 2-EH, not INA and 2-PH, and as it filed

the combined application for all the said products, the Designated Authority

rejected the request of the petitioner. The letters produced by Andhra Petro to

show that 2-EH, INA and 2-PH are ‘like articles’, were not issued by any

independent/recognised agency/source and hence they could not be considered. It

was further stated that though several opportunities were given to Andhra Petro

seeking clarifications as to how the acyclic alcohols i.e., 2-EH, INA and 2-PH are

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‘like articles’ when it does not produce INA and 2-PH, it did not submit any

clarification, and it filed a combined application for imposition of anti-dumping

duty for all three products.

11.The High Court disposed of the second writ petition on 28.08.2018 making

the following observations and directions:

“7. In spite of specific direction of this Court in W.P.No.25988 of

2017 dated 09.02.2018, the second respondent has not dealt with

the applications of the petitioner afresh in true letter and spirit of

the said order and passed the impugned order. The second

respondent, relying upon the order of the Customs, Excise and Gold

(Control) Appellate Tribunal, New Delhi in Appeal No.C/411/2000

dated 11.04.2001 whereby it held that Normal Hexanol is not one

manufactured or produced by domestic industry, passed the

impugned order stating that it is decided not to initiate anti-

dumping investigation concerning imports of INA, 2-PH and 2-EH

originating in or exported from Saudi Arabia, EU and Singapore,

excluding 2-EH having carbon No.8 from EU. While passing the

impugned order, the second respondent ignored the final findings

dated 29.07.2003 and the order of the Customs, Excise and Service

Tax Appellate Tribunal (CESTAT) dated 13.04.2006 in the case of

Andhra Petrochemicals Ltd. Vs. Designated Authority 2006 (201)

ELT 481 (Tri.-Del.) with regard to dealing of ‘like articles’ and to

accept 2-EH supplied by the domestic industry is ‘like article’ to 2-

PH and INA imported from subject countries. The petitioner is the

producer of 2-EH which is a ‘like article’ to 2-PH and INA and it

falls within the ambit of Rule 2(b) read with Rule 2(d) of the Rules

of 1995. Rules 2(b) and 2(d) of the Rules of 1995 read as under.

“2(b) ‘domestic industry’ means the domestic producers as a whole

engaged in the manufacture of the like article and any activity

connected therewith or those whose collective output of the said

article constitutes a major proportion of the total domestic

production of that article except when such producers are related to

the exporters or importers of the alleged dumped article or are

themselves importers thereof in which case such term ‘domestic

industry’ may be construed as referring to the rest of the producers:

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Provided that in exceptional circumstances referred to in sub-rule

(3) of Rule 11, the domestic industry in relation to the article in

question shall be deemed to comprise two or more competitive

markets and the producers within each of such market a separate

industry, if –

(i)the producers within such a market sell all or almost all of

their production of the article in question in that market; and (ii)

the demand in the market is not in any substantial degree supplied

by producers of the said article located elsewhere in the territory.”

*****************

2(d) ‘like article’ means an article which is identical or alike in all

respects to the article under investigation for being dumped in

India or in the absence of such an article, another article which

although not alike in all respects, has characteristics closely

resembling those of the articles under investigation.”

8. The second respondent has not considered the issue whether the

imported products and the domestic products are technically and

commercially substitutable and has not come to a conclusion on

‘like article’. This action of the second respondent becomes

absolutely ignoring the order of this Court dated 09.02.2018 in W.P.

No. 25988 of 2017 and the impugned order is one without

application of mind. There is no cogent reason pushing the

petitioner to file repeated applications and the second respondent

cannot pass orders in a routine and casual manner, in spite of

sufficient material available with him.

9. In the light of the above, this writ petition is allowed, setting

aside the order of the second respondent dated 05.03.2018. The

second respondent is directed to take steps for initiating

investigation to determine the anti-dumping in respect of import of

INA having carbon No.9 from European Union and Singapore and

2-PH having carbon No.10 from European Union, in accordance

with law, as expeditiously as possible. Pending miscellaneous

petitions, if any, shall also stand closed. No order as to costs.”

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12.Pursuant to the High Court’s directions, the DA issued notices on

28.09.2018, 24.10.2018 and 03.12.2018. After noticing that Andhra Petro’s initial

application was in 2016 (i.e.18.10.2016 and 02.12.2016), the DA issued letters

seeking updated data from Andhra Petro. However, Andhra Petro filed WP

No.2639/2019 before the High Court against the DA's letters of 28.09.2018,

24.10.2018 and 03.12.2018. The DA filed its reply before the High Court,

contending inter alia that first, the High Court's order dated 28.8.2018 did not

prohibit it from calling for updated data and had directed it (DA) to initiate

investigation in accordance with law; second, that it sought updated data to

evaluate and comply with the High Court's order fairly; and lastly that Andhra

Petro was silent on the fact that the data filed by it was 30 months old.

13.Apparently, in view of certain observations made during the proceedings by

the High Court, the DA felt constrained to issue a notice of investigation on

09.07.2019 which inter alia, stated as follows:

“8. The writ petition was listed on 3.7.2019 wherein the Hon'ble

High Court advised the law officer representing the Authority that

requesting the industry to file fully documented application as per

the prescribed proforma available on the website including all data

related to recent, updated, period of injury and POl etc., is in

violation of the orders passed by the Hon'ble High Court dated

28.8.2018 in WP No.11116/2017 and therefore was inclined to

initiate suo moto contempt proceedings and directing the

Designated Authority to appear before the Hon'ble High Court.

The Hon'ble Court granted one weeks’ time and posted the matter

on 9.7.2019.

9. In view of the above, the Authority hereby initiates an AD

investigation into the alleged dumping and consequent injury to the

domestic industry in terms of rule 5 of AD rules to determine the

existence, degree and effect of alleged dumping and to consider

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recommending the amount of anti-dumping duty which if levied,

would be adequate to remove the injury to the domestic industry."

14.Para 12 of the notice read as follows:

"The Petitioner has filed data for the period January 2016 to

December 2016. In view of the High Court's order, the Authority

initiates the investigation by prima facie evaluating dumping and

injury based on the data provided by the applicant. However, to

investigate further the POI is proposed to be considered, as

1.4.2018 to 31.3.2019 to evaluate dumping, injury and causality of

injury to the petitioner due to alleged dumping."

15.Later, on the same date, a corrigendum was issued and para 12 was amended

by adding the following in the last line:

"The injury investigation period will however cover the periods

April 2015-March' 2016, April 16-March 2017, April 2017-March

2018 and the period of investigation."

16.By the first impugned order, the High Court initiated suo motu contempt

proceedings after recounting the previous litigation and its directions, in those

petitions. It noted that the DA, after disposal of the first petition, undertook the

exercise only in relation to the period of investigation sought by Andhra Petro

without enlarging it (i.e. the period); this led to the order of the DA rejecting the

application on 5 March, 2018, and the filing of the second writ petition, which led to

the second remand. The High Court said that the notification (dated 09-07-2019)

therefore, “cannot be countenanced” and further observed that:

“The action of the Designated Authority in seeking to enlarge the

period of investigation pursuant to the second remand order when

it did not find any such necessity in relation to the first remand

order clearly indicates its lack of bonafides, if not worse, and its

intent to tamper with judicial orders.

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9.Further, the tone and tenor of the language used in para 8 of the

Initiation Notification dated 09.07.2019, set out supra, clearly

demonstrate the Designated Authority's disrespect towards the

Court. It is indeed shocking to note that the Designated Authority

thinks that the High Court is advising it in the scheme of things!

Further, having termed the direction of this Court to be mere

advice, the Designated Authority then proceeded to brush it aside.

10. In these circumstances, we deem it appropriate to initiate

suo motu contempt proceedings against Sri Sunil Kumar, Additional

Secretary & Designated Authority, Directorate General of Trade

Remedies, Department of willful and deliberate disobedience to the

order dated 28.08.2018 in W.P. No.11116 of 2018, as indicated

supra, and for his utter lack of respect towards the Court. Registry

is directed to take necessary steps in this regard and place the suo

motu contempt case before this Court after numbering the same."

17.Close on the heels of the order (dated 22.07.2009) initiating suo motu

contempt, the High Court, by the second impugned order disposed of the writ

petition [W.P.(C) 2639/2019]. The Court observed inter alia as follows:

"2. We may note at this stage that the matter arises under the

Customs Tariff (Identification, Assessment and Collection of Anti-

dumping Duty on Dumped Article and for Determination of Injury)

Rules, 1995. After filing of this writ petition, we were informed that

Mr. Sunil Kumar, the present Additional Secretary & Designated

Authority, Directorate General of Trade Remedies, Department of

Commerce and Industry, Government of India, issued Initiation

Notification dated 09.07.2019, demonstrating that the

apprehension of the petitioner company was not without

foundation. In the light of this development, this Court was

constrained to initiate suo motu contempt proceedings against the

said authority by name.

3.That being so, we are of the opinion that it would not be proper

for the said authority to undertake the necessary exercise pursuant

to the order dated 28.08.2018 passed in W.P. No.11116 of 2018. We

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are informed that there are three officers, viz. Mr. Mithileshwar

Thakur, Mr. Satish Kumar and Ms. Shubhra, all of the rank of

Additional Director General in the Department, who would be

competent to take up the exercise pursuant to the aforesaid order.

4.Sri K. Lakshman, learned Assistant Solicitor General for India,

would inform this Court that the designated authority would have

to be appointed by the Union of India.

5.We accordingly dispose of the writ petition directing the Union

of India, the third respondent herein, to choose one of the

aforestated officers and appoint him/her as the designated

authority to do the needful and undertake the exercise pursuant to

the order dated 28.08.2018 passed in W.P. No.11116 of 2018. This

exercise shall be completed expeditiously by the Union of India

and in any event, not later than two weeks from the date of receipt

of a copy of this order. Pending miscellaneous petitions, if any,

shall stand closed in the light of this final order. No order as to

costs."

18.The learned Attorney General for India contends that both the impugned

orders are unsustainable. It is urged that while issuing the notification on

09.07.2019, the DA acted within the framework of the law. The Attorney General

highlighted the importance of Rule 5(3) of the Customs Tariff (Identification,

Assessment and Collection of Anti-dumping duty on Dumped Article and for

Determination of Injury) Rules, 1995 as well as the relevant part of the Standard

Operating Procedure (SOP) and submitted that consideration of contemporaneous

if not the latest data is a per-condition for the launch of valid investigation by the

DA.

19.It is submitted that the DA is duty bound to satisfy itself, upon being

presented with evidence with respect that it adequately establishes dumping injury

and causal link. Hence, adducing recent data for the purpose of evaluation of such

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parameters is essential. Highlighting that the Standard Operating Procedure (SOP),

especially para 5.9, has been consistently adopted in this regard, it was further

stated that this method of investigation is in consonance with the WTO's

jurisprudence as well as the recommendation of the Committee on Anti-Dumping

Practices in the WTO.

20.It is submitted that the question of whether any goods fall within the term

"like article" is a technical one that is to be substantiated by relevant data. In these

circumstances, the position adopted by the DA requiring the furnishing of such

relevant data can never be contrary to law, much less the subject of issuing suo

motu proceedings. It was argued lastly that the choice of an officer acting as DA is

left to the discretion of the Central Government and the circumstance that the

incumbent to that office sought to "enlarge the period of investigation” was not a

justifiable reason for directing his removal and substitution with another. The

learned Attorney General submitted that whether any article or goods fulfill or do

not fulfill the description of "like article" are matters falling within the exclusive

domain of the DA, who is a quasi-judicial authority exercising statutory powers.

He urged that the Court cannot lightly direct the substitution of one official with

another on the assumption that non-inclusion of some goods in the expression "like

article" was mala fide. The learned AG urged the Court to review the impugned

order on the two specific grounds, i.e. that the so-called "enlarged period" is

contrary to law and consequently that non-inclusion of articles other than those

notified, too was not justified. These fall within the exclusive domain of the DA

and could not be interfered with in proceedings under Article 226 of the

Constitution.

21.Mr. Mukul Rohatgi, learned senior counsel appearing for Andhra Petro

argued that the impugned orders do not call for interference. It was argued that the

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DA, despite repeated directions, failed to appreciate the submission by Andhra

Petro, that the material on record disclosing that 2-Ethyl Hexanon (2-EH) supplied

by the domestic industry is an article like 2-Propytheptyl Alcohol (2-PH) and

Isononanol (INA) imported from the concerned countries. It is urged that

commercially and technically, the two products can fall within the description of

"like product" relatable to 2-Ethyl Hexanol offered by Andhra Petrochemicals

Limited. Therefore, for a valid initiation of investigation, Andhra Petrochemicals

Limited satisfied the criteria enumerated under Rule 2(8).

22.It was contended that the DA failed to appreciate that as long as the product

is imported, duty can be imposed on all types of goods, provided such type of

goods is in commercial competition with a like article. Highlighting that the

domestic producer in terms of Rule 2(8) should be engaged in the manufacture of

like articles to enable the filing of a complaint and seeking imposition of anti-

dumping duty upon the dumped article, learned counsel submitted that the two

products in question were kept out of the investigation. Mr. Rohatgi argued that the

scope of the term "like article" includes those which have closely resembling

characters with the one in question.

23.It was submitted that the deliberate and persistent omission of the DA to

comply with the High Court's directions was contumacious and invited stringent

action, meted out by the impugned order. Learned Senior Counsel highlighted that

so far as the period of investigation was concerned, in none of the previous

proceedings did the DA ever disclose that data other than the period mentioned in

the complaint too required inclusion for the purposes of investigation. Not having

done that in the earlier proceedings, the DA was precluded from insisting that a

period or periods other than what were the subject of complaint too had to be

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included and relevant data for that end had to be given. The approach of the DA

likewise in regard to the question of "like article" is contrary to law.

Analysis & Conclusions

24.The relevant provision, i.e. Section 9A of the Customs Tariff Act is extracted

in the footnote below

1

. Section 9C of the Customs Tariff Act provides for an appeal

to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) against an

order “of determination or review thereof regarding the existence, degree

and effect of any subsidy or dumping in relation to import of any article.”

25.This court, in S&S Enterprise v. Designated Authority

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, observed that “the

purpose behind the imposition of the duty is to curb unfair trade practices resorted

to by exporters of a particular country of flooding the domestic markets with goods

at rates which are lower than the rate at which the exporters normally sell the

same or like goods in their own countries so as to cause or be likely to cause

injury to the domestic market.” It was noted that levy of anti-dumping duty is a

move to remedy injury, recognized by GATT that balances

1 “Section 9A. Anti-dumping duty on dumped articles. — (1) Where any article is exported by an exporter or

producer from any country or territory (hereinafter in this section referred to as the exporting country or territory)

to India at less than its normal value, then, upon the importation of such article into India, the Central Government

may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in

relation to such article.

**********************

(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry

of five years from the date of such imposition:

Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead

to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition

for a further period of five years and such further period shall commence from the date of order of such extension:

Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to

a conclusion before such expiry, the antidumping duty may continue to remain in force pending the outcome of such

a review for a further period not exceeding one year.

******************

2 (2005) 3 SCC 337

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“the right of exporters from other countries to sell their products

within the country with the interest of the domestic markets.” Thus

the factors to constitute ‘dumping’, are (i) an import at prices

which are lower than the normal value of the goods in the exporting

country; (ii) the exports must be sufficient to cause injury to the

domestic industry.”

26.Reliance Industries Ltd. v. Designated Authority

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explained that industries

built after independence with great difficulty should not be allowed “to be

destroyed by unfair competition of some foreign companies. Dumping is a well-

known method of unfair competition which is adopted by the foreign companies.”

The Court also said that,“The purpose of Section 9-A is, therefore, to maintain a

level playing field and prevent dumping while allowing for healthy competition.”

27.The DA, no doubt, follows a prescribed quasi-judicial procedure where a

determination on whether to impose or not to impose anti-dumping duty takes

place (through a report).

4

However, this proceeding culminates with a

recommendation; the Central Government finally decides whether to impose such

a duty, the extent of such duty, and its duration.

5

Under Rule 4, the DA is duty

bound to conduct i) investigation of the existence, degree and effect of any

alleged dumping in relation to imports of any article ; (ii) identify the

article(s) on which anti-dumping duty is to be imposed; (iii) submit findings,

provisional or otherwise to Central Government; (iv) determine the normal value,

export price and the margin of dumping in relation to the article under

investigation; and (v) determine the injury or threat of injury to an industry

established in India or material retardation to the establishment of an industry in

India consequent upon the import of article from specified countries. The meaning

3 (2006) 10 SCC 368

4 Tata Chemicals v. Union of India, (2008) 17 SCC 180; Automotive Tyre Manufacturers Association v. the

Designated Authority (2011) 2 SCC 258

5 Rule 17 which speaks of “recommendation” by the DA. Also, the power to levy duty is discretionary, evident from

Rule 18 which leaves it to the Central Government to levy anti-dumping duty, by following the prescribed methods

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of dumping is defined by Rule 10.

6

Rule 17, which speaks of the findings of the

DA, obliges that authority to make its final findings “not later than one year from

the initiation of investigation” through a report that outlines the export price,

normal value and margin of dumping, whether import of the article into India from

specified countries causes material injury, or threatens injury, or materially retards

the establishment of any industry in India, the causal link between the dumped

import, etc. The proviso to Rule 17 (1) empowers the Central Government in its

“discretion in special circumstances” to extend further the said period of one year

by six months, within which the investigation is to be completed.

28.Rule 20 is important, and reads as follows:

“20. Commencement of duty. - (1) The anti-dumping duty levied

under rule 13 and rule 19 shall take effect from the date of its

publication in the Official Gazette.

(2) Notwithstanding anything contained in sub-rule (1) - (a) where

a provisional duty has been levied and where the designated

authority has recorded a final finding of injury or where the

designated authority has recorded a final finding of threat of injury

and a further finding that the effect of dumped imports in the

absence of provisional duty would have led to injury, the anti-

dumping duty may be levied from the date of imposition of

provisional duty;

(b) in the circumstances referred to in sub-section (3) of section 9A

of the Act, the antidumping duty may be levied retrospectively from

the date commencing ninety days prior to the imposition of such

provisional duty: Provided that no duty shall be levied

retrospectively on imports entered for home consumption before

initiation of the investigation:

6 Rule 10 reads as follows:

“10. Determination of normal value, export price and margin of dumping. – An article shall be considered as

being dumped if it is exported from a country or territory to India at a price less than its normal value and in such

circumstances the designated authority shall determine the normal value, export price and the margin of

dumping taking into account, inter alia, the principles laid down in Annexure I to these rules.”

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Provided further that in the cases of violation of price undertaking

referred to in sub-rule (6) of rule 15, no duty shall be levied

retrospectively on the imports which have entered for home

consumption before the violation of the terms of such undertaking.

Provided also that notwithstanding anything contained in the

foregoing proviso, in case of violation of such undertaking, the

provisional duty shall be deemed to have been levied from the date

of violation of the undertaking or such date as the Central

Government may specify in each case.”

29.Section 9A of the Customs Tariff Act and the procedure prescribed by the

Rules of 1995, clearly disclose an intent that investigations should be completed

within pre-determined time limits and the levy itself (which can be specific to

foreign exporter or country – or combination of both-) cannot be more than five

years – which may, after due review in accordance with prescribed procedure,

before expiry of the said period, be extended by another period not more than five

years. These timelines are crucial; the DA is duty bound to follow them. The

analysis of the particular market behaviour by the allegedly offending foreign

exporters, involves sifting of a great deal of evidence, such as manufacturing

capacity, financial abilities, overall capacity of the country in the like field, prices,

and the margin of acceptable delinquent behaviour, as well as domestic capacity,

efficiency, etc, while determining if an injury exists, the margin of such injury and

its likely duration. The judgment of this court in Union of India v. Kumho

Petrochemicals

7

has noticed that as a signatory to GATT and the Marrakesh

Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic

laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with

respect to the timeline for taking up and conclusion of investigation.

8

Article 10

7 (2017) 8 SCC 307.

8 Article 5.10 reads as follows:

“5.10 Investigations shall, except in special circumstances, be concluded within one year, and in no case more

than 18 months, after their initiation.”

18

empowers states to levy duties, with retrospective effect, only for a limited period

(90 days subject to fulfilment of prescribed conditions) “prior to the date of

application of provisional measures, when the authorities determine for the

dumped product in question that:..”

9

This has been given effect to by Rules 17 and

20 of the Rules of 1995

10

.

30.Keeping the imperative of completion of investigation within a

pre-determined timeline, the guidelines contained in the Manual of Operation for

Trade Remedy Investigations (Period of Investigation and Injury Investigation

period) as to the contemporaneousness of the data necessary to carry out the

investigation, assume importance. The relevant provisions of the Manual are

extracted below:

"5.9The POI proposed in the application should be as latest as

possible, and in any case not more than six months old as on date

of initiation. If the proposed POI is more than six months old, then

applicant may be asked to furnish revised application with fresh

data.

5.10The POI should normally be twelve months. As far as

possible attempt should be made to identify POI as per the financial

year, as it will make analysis easier and more accurate. An attempt

should be made to select POI in such a way that at least one

complete financial year is included in the POI to ensure availability

of audited details at least for a part period of POI. It is always

desirable to add period in terms of quarters (as the financial results

9 Article 10.6, Marrakesh Agreement.

10 Ref Commr. of Customs v. G.M. Exports, (2016) 1 SCC 91at page 118, where it was observed that:

“32. Under Rule 17, the Designated Authority is given one year from the date of initiation of an investigation to

come out with its final findings. This is extendable by the Central Government only in special circumstances, and

only by a further period of 6 months, and no more (Clause 5.10 of the WTO Agreement). Significantly, the

Designated Authority, in its final finding, may also provide for a retrospective levy of duty, the reasons therefor, and

the date of commencement of such retrospective levy. This is obviously referable to Section 9-A(3), which reproduces

Clause 10.6 of the WTO Agreement. The reasons must be the reasons mentioned in the said sub-section, and, as

mentioned in the said sub-section, such retrospective levy cannot commence beyond 90 days from the date of the

notification imposing provisional duty.”

19

are prepared quarter wise only) instead of any odd number of

months as it may be difficult for other interested parties to submit

their audited figures for such odd period."

31.The rationale for these guidelines is self-evident: any investigation carried

out for past periods would in all likelihood, result in minimal levy. For instance, if

in 2020, investigation is initiated for the period 2013-14, with the object of

determining anti-dumping, even if injurious behavior is found, the levy can be only

of limited duration. Further, to levy duty for the period after findings are rendered,

the POI would yield stale results, and cannot justify levy for later periods. Keeping

this in mind, the DA, apparently in the present case, having regard to Para 5.9

(quoted above) required Andhra Petro to furnish relatively contemporary data.

Such an action cannot be termed as arbitrary. In this court’s opinion, the impugned

orders were plainly erroneous in chastising the DA, and even directing his

replacement, for what appears to be his adherence to prescribed procedure.

32.Access to judicial review is a valuable right conferred upon citizens and

persons aggrieved; the Constitution arms the High Courts and this court with

powers under Articles 226 and 32. At the same time, barring exceptional features

necessitating intervention in an ongoing investigation triggered by a complaint by

the concerned domestic industry, judicial review should not be exercised virtually

as a continuous oversight of the DA’s functions. This court has cautioned more

than once, that judicial review is to be exercised in a circumspect manner,

especially where final findings are rendered by the DA.

11

33.For the foregoing reasons, this court is of the opinion that the impugned

orders, i.e., the order dated 28.08.2018 issuing specific directions for anti-dumping

investigation into articles imported from EU; the order dated 22.07.2019 (initiating

11 Directorate General of Anti-Dumping v Sandik International (2018) 13 SCC 402; Association of Synthetic Fibre

Industries v Apollo Tyres Ltd (2010) 13 SCC 733.

20

contempt proceedings against the DA) and the order dated 05.08.2019 have to be

set aside. The first two orders are accordingly set aside. The third order (dated

05.08.2019), to the extent that it directs the replacement of the incumbent DA, is

set aside. The appeals are allowed in the above terms, without order on costs.

..............................................J.

[ARUN MISHRA]

.............................................J.

[VINEET SARAN]

.............................................J.

[S. RAVINDRA BHAT]

New Delhi,

September 1, 2020.