REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 008309-008310 OF 2017

(ARISING OUT OF SLP (C) NOS. 29268-29269 OF 2014)

UNION OF INDIA AND ANOTHER .....APPELLANT(S)

VERSUS

M/S. KUMHO PETROCHEMICALS

COMPANY LIMITED AND ANOTHER .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 008312 OF 2017

(ARISING OUT OF SLP (C) NO. 28170 OF 2014)

CIVIL APPEAL NO. 008313 OF 2017

(ARISING OUT OF SLP (C) NO. 29364 OF 2014)

CIVIL APPEAL NO. 008314 OF 2017

(ARISING OUT OF SLP (C) NO. 31046 OF 2014)

A N D

CIVIL APPEAL NO. 008311 OF 2017

(ARISING OUT OF SLP (C) NO. 27776 OF 2014)

J U D G M E N T

A.K. SIKRI, J.

On the demand raised by the indigenous industry,

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original/ordinary investigation concerning imports of Acrylonitrile

Butadiene Rubber (hereinafter referred to as the ‘product’) was

taken up sometime in March 1996 for the purpose of levy of

anti-dumping duty on the said import from Korea RP and

Germany. The primary finding to this effect came to be published

on July 17, 1997 whereby the Designated Authority

recommended definitive anti-dumping duty. That resulted into

issuance of Notification dated July 30, 1997 by the Central

Government whereby anti-dumping duty was imposed under

Section 9A of the Customs Tariff Act, 1975 (for short, the ‘Act’) on

the said product. Before the expiry of five years period during

which anti-dumping duty remains operative, the first sunset

review investigation was initiated by the Authority which

recommended continued levy of anti-dumping duty. It resulted

into another Notification dated October 10, 2002. As per this

Notification, the anti-dumping duty was to remain in force till

October 10, 2007. Just before that, on October 08, 2007, second

sunset review investigation was initiated by the Authority, which

resulted in recommendation dated October 04, 2008 for

continued imposition of anti-dumping duty on imports of the

product from Koreal RP. On the basis of this recommendation,

another Notification dated January 02, 2009 was issued by the

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Central Government, which was to remain in force till January 01,

2014. On December 31, 2013, that is one day before the

aforesaid Notification was to lapse, third sunset review

investigation in respect of duty imposed on the imports of the

subject product from Korea RP was initiated. Pursuant to the

initiation of the said sunset review investigation, the Central

Government issued Notification No. 6/2014-Customs dated

January 23, 2014 thereby extending the validity of duty by one

year, i.e. up to January 01, 2015, pending investigation. This was

done in exercise of powers contained in second proviso to

sub-section (5) of Section 9A of the Act. The aforesaid

Notification dated January 23, 2014 came to be challenged by

filing writ petitions by M/s. Kumho Petrochemicals Company

Limited (respondent No.1 herein), who is a purchaser and

exporter of the product from Korea RP, as well as by Fairdeal

Polychem LLP (an importer of product from Korea RP). The High

Court has, vide impugned judgment dated July 11, 2014, decided

both the writ petitions. It has partly allowed these writ petitions

holding that the order of continuation of anti-dumping duty, made

after expiry of the duty period, is bad in law. However, another

contention of the two writ petitioners, namely, the initiation of the

anti-dumping duty investigation was also bad in law on the

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ground that public notice of initiation was not published in the

Official Gazette before January 01, 2014, i.e., before the expiry of

the anti-dumping duty at the end of five years period, has not

been accepted by the High Court. Repelling this argument, it is

held by the High Court that public notice of initiation need not be

published in the Official Gazette and that public notice is not a

pre-requisite for initiation of an investigation, which can be issued

within a proximate period of time after its initiation. Union of India

and Automotive Manufacturers Association in India felt aggrieved

by that part of the judgment whereby extension of anti-dumping

duty has been allowed to be bad in law. Their appeals challenge

that part of the order. On the other hand, writ petitioners are not

satisfied with the outcome of the second issue about the initiation

of anti-dumping duty. This part is challenged by these two writ

petitioners. M/s. Omnova Solution (Pvt.) Limited is the other

appellant which is also a domestic industry and has challenged

the orders by filing two writ petitions thereby supporting the stand

of Union of India and Manufacturers Association. It is for this

reason all these appeals are heard analogously, which we

propose to decide by this common judgment.

2)Few dates which are material to appreciate the controversy and

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the stand which is taken by the respective parties need to be

recapitulated. Since we are concerned with the validity of

initiation of the third sunset review as well as Notification dated

January 23, 2014 vide which earlier Notification was amended

and extended for a period of one year under Section 9A of the

Act, we will mention those dates which revolve around the

aforesaid controversy.

3)As mentioned above, after the second sunset review, Notification

dated January 02, 2009 was issued extending the period of

anti-dumping duty for another five years, i.e. till January 01, 2014.

On December 31, 2013, a day before the period of the aforesaid

Notification was to expire, third sunset review was initiated.

However, notification dated December 31, 2013 was made

available only on January 06, 2014, i.e. after the expiry of original

Notification. Thereafter, Notification dated January 23, 2014 was

issued amending the earlier Notification dated January 02, 2009

so as to make it remain in force till January 01, 2015. This power

of interim measure, pending review exercise is enshrined in

second proviso to Section 9A(5) of the Act.

4)Entire scheme of anti-dumping is contained in Section 9A of the

Act which reads as under:

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“9A. (1) Where any article is exported by an exporter

or producer from any country or territory (hereafter 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.

Explanation. – For the purposes of this section, –

(a) “margin of dumping” in relation to an article, means

the difference between its export price and its normal

value;

(b) “export price”, in relation to an article, means the

price of the article exported from the exporting country

or territory and in cases where there is no export price

or where the export price is unreliable because of

association or a compensatory 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

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article when exported from the exporting

country or territory to an appropriate third

country as determined in accordance with the

rules made under sub-section (6); or

(b) the cost of production of the said article 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

subsection(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

country of export, the normal value shall be

determined with reference to its price in the

country of origin.

(2) The Central Government may, pending the

determination in accordance with the provisions of this

section and the rules made thereunder of the normal

value and the margin of dumping in relation to any

article, impose on the importation of such article into

India an anti-dumping duty on the basis of a

provisional estimate of such value and margin and if

such anti-dumping duty exceeds the margin as so

determined, -

(a) the Central Government shall, having regard

to such determination and as soon as may be

after such determination, reduce such

anti-dumping duty; and

(b) refund shall be made of so much of the

antidumping duty which has been collected as is

in excess of the anti-dumping duty as so

reduced.

(2A) Notwithstanding anything contained in subsection

(1) and sub-section (2), a notification issued under

sub-section (1) or any anti-dumping duty imposed

under subsection (2), unless specifically made

applicable in such notification or such imposition, as

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the case may be, shall not apply to articles imported

by a hundred per cent. export oriented undertaking or

a unit in a free trade zone or in a special economic

zone.

Explanation. – For the purposes of this section, the

expressions "hundred per cent. export-oriented

undertaking", "free trade zone" and "special economic

zone" shall have the meanings assigned to them in

Explanations 2 to sub-section (f) of section 3 of

Central Excise Act, 1944.

(3) If the Central Government, in respect of the

dumped article under inquiry, is of the opinion that –

(i) there is a history of dumping which caused

injury or that the importer was, or should have

been, aware that the exporter practices dumping

and that such dumping would cause injury; and

(ii) the injury is caused by massive dumping of an

article imported in a relatively short time which in

the light of the timing and the volume of imported

article dumped and other circumstances is likely

to seriously undermine the remedial effect of the

antidumping duty liable to be levied,

the Central Government may, by notification in the

Official Gazette, levy anti-dumping duty retrospectively

from a date prior to the date of imposition of

anti-dumping duty under sub-section (2) but not

beyond ninety days from the date of notification under

that sub-section, and notwithstanding any thing

contained in any other law for the time being in force,

such duty shall be payable at such rate and from such

date as may be specified in the notification.

(4) The anti-dumping duty chargeable under this

section shall be in addition to any other duty imposed

under this Act or under any other law for the time

being in force.

(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:

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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

anti-dumping duty may continue to remain in force

pending the outcome of such a review for a further

period not exceeding one year.

(6) The margin of dumping as referred to in subsection

(1) or sub-section (2) shall, from time to time, be

ascertained and determined by the Central

Government, after such inquiry as it may consider

necessary and the Central Government may, by

notification in the Official Gazette, make rules for the

purposes of this section, and without prejudice to the

generality of the foregoing such rules may provide for

the manner in which articles liable for any

anti-dumping duty under this section may be identified

and for the manner in which the export price and the

normal value of and the margin of dumping in relation

to, such articles may be determined and for the

assessment and collection of such anti-dumping duty.

(6A) The margin of dumping in relation to an article,

exported by an exporter or producer, under inquiry

under subsection (6) shall be determined on the basis

of records concerning normal value and export price

maintained, and information provided, by such

exporter or producer:

Provided that where an exporter or producer fails to

provide such records or information, the margin of

dumping for such exporter or producer shall be

determined on the basis of facts available.;

(7) Every notification issued under this section shall,

as soon as may be after it is issued, be laid before

each House of Parliament.

(8) The provisions of the Customs Act, 1962 and the

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rules and regulations made thereunder, including

those relating to the date for determination of rate of

duty, assessment, non-levy, short levy, refunds,

interest, appeals, offences and penalties shall, as far

as may be, apply to the duty chargeable under this

section as they apply in relation to duties leviable

under that Act.”

5)We are concerned with sub-section (5) of Section 9A of the Act

which lays down that anti-dumping duty imposed under the said

provision, unless revoked earlier, ceases to have effect on the

expiry of five years from the date of such imposition. It means

that such a notification has maximum life of 5 years. Thus, in

normal course, Notification dated January 02, 2009 would have

come to an end on January 01, 2014. However, first proviso to

sub-section (1) of Section 9A of the Act empowers the Central

Government to extend the period of such imposition for a further

period of five years after undertaking a review. Second proviso

stipulates that where a review is initiated before the expiry of the

aforesaid period of five years, but the Authority has not come to a

conclusion before such expiry, the anti-dumping duty may

continue to remain in force for a further period not exceeding one

year. This second proviso, thus, is to provide a stopgap

arrangement to take care of those contingencies where review

exercise, though initiated earlier, could not be concluded during

the currency of anti-dumping duty period specified in the

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notifications. It is in exercise of this power contained in second

proviso to sub-section (5) of Section 9A of the Act that Notification

dated January 23, 2014 was issued extending the validity by

another year, pending outcome of the sunset review.

6)At this juncture, we shall reproduce relevant texts of Notification

dated December 31, 2013 vide which sunset review was initiated,

as well as Notification dated January 23, 2014 vide which earlier

Notification dated January 02, 2009 was amended by extending

its validity by another year:

Notification dated December 31, 2013

“To be published in Part-I Section-I of the Gazette of

India Extraordinary

F NO 15/29/2013-DGAD

Government of India

Department of Commerce & Industry

(Directorate General of Anti-Dumping & Allied Duties)

Udyog Bhavan, New Delhi – 110011

Dated the 31

st

December, 2013

NOTIFICATION

INITIATION

Subject: Sunset Review (SSR) Anti-dumping

Investigation concerning imports of Acrylonitrile

Butadiene Rubber (NBR), originating in or exported

from Korea RP.

xx xx xx

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and other connected matters Page 11 of 46

2...Second sunset review investigations were initiated

by the Authority on 8

th

October 2007 and the Authority

recommended continued imposition of anti dumping

duty on imports of the subject goods from Korea RP

vide Notification No. 15/6/2007 dated 4

th

October 2008

and imposed by Finance vide Custom Notification No.

01/2009-Customs dated 2

nd

January 2009.

3. Whereas, M/s Omnova Solutions (India) Pvt. Ltd.

have now filed a duty substantiated application before

the Authority, as the domestic industry of the subject

goods in India, in accordance with the Act and the

Rules, alleging likelihood of continuation or recurrence

of dumping of the subject gods, originating in or

exported from Korea RP and consequent injury to the

domestic industry and have requested for review,

continuation and enhancement of the anti-dumping

duties imposed on the imports of the subject goods,

originating in or exported from Korea RP.

xx xx xx

Initiation of Sunset Review

7. In view of the duly substantiated application filed

and in accordance with Section 9A(5) of the Act, read

with Rule 23 of the Anti-dumping Rules, the Authority

hereby initiates a sunset review investigation to review

the need for continued imposition of anti dumping

duties in force in respect of the subject goods,

originating in or exported from the subject country and

to examine whether the expiry of such duty is likely to

lead to continuation or recurrence of dumping and

injury to the domestic industry.”

Notification dated January 23, 2014

“Government of India

Ministry of Finance

(Department of Revenue)

Notification No. 06/2014-Customs (ADD)

New Delhi, dated the 23

rd

January, 2014

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G.S.R. 48(E). – Whereas, the designated authority

vide notification No. 15/29/2013-DGAD dated the 31

st

December 2013, published in the Gazette of India,

Extraordinary, Part I, Section I, dated the 31

st

December 2013, has initiated review, in terms of

sub-section (5) of section 9A of the Customs Tariff Act,

1975 (51 of 1975) read with rule 23 of the Customs

Tariff (Identification, Assessment and Collection of Anti

dumping Duty on Dumped Articles and for

Determination of Injury) Rules, 1995, in the matter of

continuation of anti-dumping duty on ‘Acrylonitrile

Butadiene Rubber’, originating in, or exported from

Korea RP, imposed vide notification of the

Government of India in the Ministry of Finance

(Department of Revenue), No. 01/2009-Customs,

dated the 2

nd

January, 2009, published in the Gazette

of India, Extraordinary, Part II, Section 3, sub-section

(i), vide G.S.R. 5(E), dated the 2

nd

January, 2009, and

has requested for extension of anti-dumping duty for a

further period of one year, in terms of sub-section (5)

of section 9A of the said Customs Tariff Act;

Now, therefore, in exercise of the powers conferred

by sub-sections (1) and (5) of section 9A of the

Customs Tariff Act, 1975 (51 of 1975) read with rule 23

of the Customs Tariff (Identification, Assessment and

Collection of Anti-dumping Duty on Dumped Articles

and for Determination of Injury) Rules, 1995, the

Central Government hereby makes the following

amendment in the notification of the Government of

India in the Ministry of Finance (Department of

Revenue), No. 01/2009-Customs, dated the 2

nd

January, 2009, published in the Gazette of India,

Extraordinary, Part II, Section 3, sub-section (i), vide

G.S.R. 5(E), dated the 2

nd

January, 2009, namely:

In the said notification, after paragraph 2, the

following shall be inserted, namely:-

“3. Notwithstanding anything contained in

paragraph 2, this notification shall remain in

force upto and inclusive of the 1

st

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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and other connected matters Page 13 of 46

[F.No. 354/179/2002-TRU (Pt.V)]

(Raj Kumar Digvijay)

Under Secretary to the Government of India”

7)Having noted the material dates, the relevant text of the

Notifications as well as the statutory scheme provided under

Section 9A of the Act, we may now formulate the two questions

that arise for consideration in these appeals:

(1)After the second sunset review investigation, Notification

dated January 02, 2009 was issued extending the

anti-dumping duty that was imposed by the initial

Notification. This Notification was valid for a period of five

years, i.e. up to January 01, 2014. Though, the third sunset

review was initiated and notification dated 31

st

December,

2013 was issued which was before the expiry of five years

period, i.e. January 01, 2014, according to the writ

petitioners, this Notification proposing the review was made

public only on January 06, 2014. As per them, the date of

reckoning would, therefore, be publication of the

Notification, namely, January 06, 2014, which has to be

taken into consideration for setting into motion the sunset

review. Since it happened after the expiry of original

Notification, the exercise of undertaking sunset review was

impermissible. Therefore, the first question is:

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Whether the date of December 31, 2013 or it is

January 06, 2014, which would be the relevant date for

determining initiation of the sunset review?

(2)Amendment Notification dated January 23, 2014, amending

Notification dated January 02, 2009 by allowing it to remain

in force till January 01, 2015 was issued after the original

Notification had expired on January 01, 2014.

The question is: Whether such a Notification issued

after the expiry date of the original Notification is without any

legal authority and is, therefore, null and void?

8)We now proceed to discuss and answer these questions in

seriatim.

QUESTION NO.1

9)It is not in dispute that in terms of Section 9A(5) of the Act,

anti-dumping duty is effective for a period not exceeding five

years from the date of its imposition. The Government is

empowered to revoke the duty imposed even before the expiry of

five years. In any case, such a duty admittedly ceases to be

operative after five years from the date of imposition. At the same

time, the Central Government is empowered to initiate review,

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called ‘sunset review’, and to investigate and decide as to

whether it is necessary to continue the levy of anti-dumping duty.

As in the case of original Notification imposing such a duty, the

Central Government is to satisfy itself that if the period of

anti-dumping duty is not extended, it is likely to lead to

continuation or recurrence of dumping and injury to the domestic

industry. The nature of exercise to be undertaken by the Central

Government in a ‘sunset review’ is somewhat different from the

initial exercise to determine whether anti-dumping duty is to be

levied at all or not. When it comes to review, the focus would be

on the issue as to whether withdrawal of anti-dumping duty would

lead to continuation or recurrence of dumping as well as injury to

the domestic industry. The nature and scope of this exercise is

lucidly explained by this Court in Reliance Industries v.

Designated Authorities

1

in the following manner:-

“38. We are of the opinion that the nature of the

proceedings before the DA are quasi-judicial, and it is

well settled that a quasi-judicial decision, or even an

administrative decision which has civil consequences,

must be in accordance with the principles of natural

justice, and hence reasons have to be disclosed by

the Authority in that decision vide S.N.

Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990

SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC

445] .

39. We do not agree with the Tribunal that the

notification of the Central Government under Section

1 (2006) 10 SCC 368

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9-A is a legislative act. In our opinion, it is clearly

quasi-judicial. The proceedings before the DA are to

determine the lis between the domestic industry on the

one hand and the importer of foreign goods from the

foreign supplier on the other. The determination of the

recommendation of the DA and the government

notification on its basis is subject to an appeal before

CESTAT. This also makes it clear that the proceedings

before the DA are quasi-judicial.”

10)It is a common case that such a sunset review is to initiate before

the expiry of five years period mentioned in the Notification. In

the present case, no doubt, the Notification which is passed

initiating sunset review is dated December 31, 2013. Though we

have reproduced relevant portion of this Notification, a perusal of

the entire Notification reveals that it is a detailed Notification

running into almost fifteen pages wherein history of original

investigation concerned the imports of the product in question

from Korea RP and Germany is traced out leading to the findings

that were arrived at by the Authority on the basis of which

anti-dumping duty was imposed on the subject goods vide

Notification dated July 30, 1997. This Notification thereafter deals

with the second sunset review which led to passing of further

Notification dated January 02, 2009. Thereafter, it mentions that

M/s. Omnova Solution (Pvt.) Limited had filed a duly

substantiated application on November 11, 2013 before the

Authority alleging likelihood of continuation of recurrence of

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dumping of the subject goods, originating in or exported from

Korea RP, and a consequent injury to the domestic market and

requested for another review. The Notification thereafter deals

with the situation of domestic industry, product in question and

satisfaction of the Authority that a case was made out for initiation

of sunset review investigation to review the need for continued

imposition of anti-dumping duty in force in respect of the product

in question. The Notification thereof calls upon the interested

parties to submit relevant information in the prescribed form and

manner and furnish their views to the Authority for its

consideration. Thus, a detailed exercise was done taking into

account all the relevant factors in forming the opinion that the

sunset review was desirable.

11)Though the Notification is dated December 31, 2013 and

published on the same date, it was sent for distribution to Kitab

Mahal Book Store on January 06, 2014. The validity would

depend upon the issue as to whether December 31, 2013 is the

date of reckoning or it is only January 06, 2014.

12)The High Court has answered the question in favour of the

Government and against the writ petitioners on the ground that

Section 9A(5) of the Act and its proviso do not mandate a public

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notice or a Gazette Notification as a pre-condition for initiation of

sunset review investigation. The reference to publication by

Official Gazette is, significantly, in Section 9A(1) which talks of

imposition of anti-dumping duty.

13)Questioning the aforesaid approach of the High Court, it was

argued by the learned counsel for the writ petitioners that this

view was contrary to the judgment of this Court in B.K.

Srinivasan & Ors. v. State of Karnataka & Ors.

2

wherein it was

held as under:

“15....Where the parent statute is silent, but the

subordinate legislation itself prescribes the manner of

publication, such a mode of publication may be

sufficient, if reasonable. If the subordinate legislation

does not prescribe the mode of publication or if the

subordinate legislation prescribes a plainly

unreasonable mode of publication, it will take effect

only when it is published through the customarily

recognised official channel, namely, the Official

Gazette or some other reasonable mode of

publication...”

14)It was argued that the aforesaid principle was reiterated in the

case of Union of India & Ors. v. Ganesh Das Bhojraj

3

. On the

basis of this principle contained in the aforesaid judgments, it was

submitted that even if the provisions of the statute, i.e. Section

9A, were silent about the publication of the Notification,

2 (1987) 1 SCC 658

3 (2000) 9 SCC 461

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concerned Rules, namely, the Customs Tariff (Identification,

Assessment and Collection of Anti-dumping Duty on Dumped

Articles and for Determination of Injury) Rules, 1995 were to be

followed. It was argued that Rule 6(1) of the said Rules required

issuance of public notice of initiation of investigation and, thus,

having regard to the dicta laid down in the aforesaid judgments

prescribing a mode of publication, publication by ‘extraordinarily

recognised Official Gazette’, namely the Official Gazette, had to

be resorted to and since it was made available to public only on

January 06, 2014, that date has to be treated as the relevant date

when the Notification came into force, having regard to the ratio

of judgment in Union of India v. Param Industries Ltd.

4

15)Rule 6 of the aforesaid Rules deals with principles governing

investigations. Sub-rule (11) thereof mentions that whenever

Designated Authority has decided to initiate investigation to

determine the existence, degree and effect of any alleged

dumping of any article, it shall issue a public notice underlying its

decision and also mention the particulars/information which shall

be provided in the said public notice. This Rule thereafter

narrates the procedure which is to be followed which includes

providing opportunity to the industrial user of the article under

4 2015 (321) ELT 192 (SC)

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investigation and the respective consumer organisation in cases

where the article is commonly sold at the retail level, to furnish

information which is relevant to the investigation regarding

dumping/injury where applicable, and casualty. The High Court is

right that it is in this specific context that the said Rule mentions

about issuance of public notice underlying its decision to initiate

the investigation. Rule 23 deals with review, i.e. review to see the

need for the continued imposition of anti-dumping duty and inter

alia mentions that provisions of Rule 6 shall be mutatis mutandis

applicable in the case of review, meaning thereby the procedure

which is mentioned in Rule 6 shall be followed while undertaking

review as well. Rule 6, thus, encompasses the principles of

natural justice that are to be applied by the Designated Authority

while undertaking the exercise of investigations qua imposition of

dumping duty. Such a purport of Rule 6 of the rules is recognised

in the case of Automotive Tyre Manufacturers Association v.

Designated Authority & Ors.

5

, namely, the Designated Authority

is to conform to the principles of natural justice, as can be seen

from the following discussion in the said judgment:

“82. the elaborate procedure prescribed in Rule 6 of

1995 Rules, which the DA is obliged to adhere to while

conducting investigations, we are convinced that duty

to follow the principles of natural justice is implicit in

the exercise of power conferred on him under the said

5(2011) 2 SCC 258

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Rules.”

16)First proviso to Section 9A(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 9A(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.

17)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 9A(5) and its

proviso. On the other hand, Section 9A(1), which deals with

imposition of anti-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.

18)As a result, the appeals filed by the writ petitioners in which the

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and other connected matters Page 22 of 46

finding of the High Court on the aforesaid question is challenged,

are dismissed as without any merits.

QUESTION NO.2

19)Ms. Pinky Anand, learned Additional Solicitor General, arguing

against the aforesaid view taken by the High Court, submitted

that once the Central Government decides to hold sunset review

and passes an order in this behalf, as was done in the present

case vide Notification dated March 31, 2013, it shows that the

Central Government is, prima facie, satisfied that there is a

justification in the request made by the indigenous industry for

continuation of such a duty. Therefore, till this exercise is

complete, necessary consequence has to be to continue

anti-dumping duty and it is for this reason the second proviso to

sub-section (5) of Section 9A of the Act is added in the statute.

Otherwise, it was argued, the very purpose of this proviso stands

defeated.

20)She submitted that the word ‘may’ occurring in the said proviso

should be read as ‘shall’. She also pointed out that in the instant

case itself, after the completion of ‘sunset review exercise’, final

notification was issued on September 04, 2015 signifying the

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continuation of anti-dumping duty was justified. On that basis, it

was argued that there should not be a position of hiatus or

vacuum in between, which also justifies the interpretation that the

extension under the second proviso is automatic. For this

purpose, learned Additional Solicitor General referred to the

following discussion in the case of Rishiroop Polymers (P) Ltd.

v. Designated Authority and Additional Secretary

6

:

“35. After going through the entire record with the

assistance of the learned counsel for the parties, we

are of the opinion that the contention raised by the

appellant is clearly contrary to the facts on record. The

Designated Authority in its findings in the Mid-Term

Review proceedings has categorically stated that all

the factors have been taken into consideration while

determining continuance of the anti-dumping duty.

That apart, at the time of arguments, we had the

advantage of going through the original

records/documents (original/confidential file was

produced in the Court) which had been placed before

the Designated Authority, which shows that along with

the information provided in the pro forma, necessary

information with respect to all the 14 parameters had

been provided by the domestic industry and

considered by the Designated Authority, after due

corrections. In view of the foregoing consideration, the

argument of the appellant that all relevant factors have

not been considered has no factual foundation.

36. Otherwise also, we are of the opinion that the

scope of the review inquiry by the Designated

Authority is limited to the satisfaction as to whether

there is justification for continued imposition of such

duty on the information received by it. By its very

nature, the review inquiry would be limited to see as to

whether the conditions which existed at the time of

imposition of anti-dumping duty have altered to such

an extent that there is no longer justification for

continued imposition of the duty. The inquiry is limited

6 (2006) 4 SCC 303

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to the change in the various parameters like the

normal value, export price, dumping margin, fixation of

non-injury price and injury to domestic industry. The

said inquiry has to be limited to the information

received with respect to change in the various

parameters. The entire purpose of the review inquiry is

not to see whether there is a need for imposition of

anti-dumping duty but to see whether in the absence

of such continuance, dumping would increase and the

domestic industry suffers.”

21)The learned Additional Solicitor General also took the aid of

Section 24 of the General Clauses Act, 1897. Section 24 which

deals with continuation of orders issued under enactments

repealed and re-enacted and reads as under:

“Section 24 - Continuation of orders, etc., issued

under enactments repealed and re-enacted:

Where any [Central Act] or Regulation, is, after the

commencement of this Act, repealed and re-enacted

with or without modification, then, unless it is

otherwise expressly provided any

[appointment

notification,] order, scheme, rule, form or

bye-law, [made or] issued under the repealed Act or

Regulation, shall, so far as it is not inconsistent with

the provisions re-enacted, continue in force, and be

deemed to have been [made or] issued under the

provisions so re-enacted, unless and until it is

superseded by any

[appointment notification,] order,

scheme, rule, form or bye-law, [made or] issued under

the provisions so re-enacted [and when any [Central

Act] or Regulation, which, by a notification under

section 5 or 5A of the Scheduled Districts Act, 1874,

(14 of 1874) or any like law, has been extended to any

local area, has, by a subsequent notification, been

withdrawn from the re-extended to such area or any

part thereof, the provisions of such Act or Regulation

shall be deemed to have been repealed and

re-enacted in such area or part within the meaning of

this Section].

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22)She also relied upon the judgment in the case of Fibre Boards

Private Limited, Bangalore v. Commissioner of Income Tax,

Bangalore

7

.

23)Mr. Basava Prabhu Patil, learned senior advocate appearing for

domestic industry manufacturing the product in-question,

supported the aforesaid submission of the learned Additional

Solicitor General. He referred to Rule 23(b) of the Rules which,

according to him, mandates the Designated Authority to initiate

sunset review either suo moto or upon receipt of a duly

substantiated petition. Duly substantiated petition implies that the

petition should contain sufficient evidence that the cessation of

anti dumping duty is likely to lead to continuation or recurrence of

dumping and consequent injury to the domestic industry. In a

situation where the Designated Authority has initiated the sunset

review investigation based on duly substantiated petition, it

follows that the Designated Authority is prima facie satisfied that

the cessation of anti-dumping duty is likely to lead to dumping

and consequent injury to the domestic industry. Under these

circumstances, it is imperative that the anti-dumping duty

continues to remain in force pending outcome of the review and

7 (2015) 10 SCC 333

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there is no room for exercise of any discretion by the Finance

Ministry under the second proviso to Section 9A(5). If the

second proviso conferred a discretionary power, it would mean

that the Finance Ministry would have to apply its mind and not

act mechanically. However, neither the second proviso to

Section 9A(5) nor Rule 23(1B) of the Rules set out any basis or

criteria for the Finance Ministry to exercise its discretion at the

stage of initiation of a sunset review.

24)He also submitted that the second proviso to Section 9A(5) does

not contemplate issuance of a notification or order, as is in the

case of an original levy under Section 9A(1), or extension of duty

for a further period of 5 years consequent to a review under the

first proviso to 9A(5). This position is borne out by the Rules,

where in respect of duty imposed consequent to a determination

in an original or review investigation, a notification is mandated.

The requirement of a notification is found only in Rule 18, and

Rule 23(3) read with Rule 18, both of which deal with duties

consequent to an investigation. On the other hand, the second

proviso to Section 9A(5) provides only that “that anti-dumping

duty may continue to remain in force pending the outcome of

such a review for a further period not exceeding one year” and

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there is no mention of any affirmative act by the Central

Government or the need to issue a notification providing for levy

of an anti-dumping duty. Therefore, the proviso does not require

any positive act, on the part of the Central Government. It is the

Designated Authority, which has not concluded, is sufficient for

continuation of the duty for a further period not exceeding one

year.

25)On the basis of the aforesaid submissions, plea of Mr. Patil was

that the word ‘may’ has to be read as ‘shall’ because of the

reason that if interpreted otherwise, it would frustrate the

objective of the provision, as held in N. Nagendra Rao & Co. v.

State of A.P.

8

(para 3) as well as Dinkar Anna Patil and

Another v. State of Maharashtra and Others

9

(para 26). Mr.

Patil also endeavoured to take sustenance from the judgement of

this Court in Sub-Committee on Judicial Accountability v.

Union of India and Another

10

wherein this Court held that “the

enabling words are construed as compulsory whenever the

object of the power is to effectuate the legal right........” He

specifically relied upon the discussion contained in paras 85 and

86 which are to the following effect:

8 (1994) 6 SCC 205

9 (1999) 1 SCC 354

10 (1991) 4 SCC 699

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“85. Use of the word ‘may’ in clause (5) indicates that

for the ‘procedure for presentation of address’ it is an

enabling provision and in the absence of the law the

general procedure or that resolved by the House may

apply but the ‘investigation and proof’ is to be

governed by the enacted law. The word ‘may’ in

clause (5) is no impediment to this view.

86. On the other hand, if the word ‘shall’ was used in

place of ‘may’ in clause (5) it would have indicated that

it was incumbent on the Parliament to regulate even

the procedure for presentation of an address by

enacting such a law leaving it no option even in the

matter of its procedure after the misbehaviour or

incapacity had been investigated and found true:

“Sometimes, the legislature uses the word

‘may’ out of deference to the high status of

the authority on whom the power and the

obligation are intended to be conferred and

imposed.” (See: State of U.P. v. Jogendra

Singh [(1964) 2 SCR 197).”

Indeed, when a provision is intended to effectuate a

right — here it is to effectuate a constitutional

protection to the Judges under Article 124(4) — even

a provision as in Article 124(5) which may otherwise

seem merely enabling, becomes mandatory. The

exercise of the powers is rendered obligatory.

In Frederic Guilder Julius v. Right Rev. the Lord

Bishop of Oxford; the Rev. Thomas Thellusson

Carter [(1879-80) 5 AC 214, 244] Lord Blackburn said:

“… The enabling words are construed as

compulsory whenever the object of the

power is to effectuate a legal right.”

26)Without prejudice to the aforesaid contention, Mr. Patil also

argued the matter from another perspective as well. He

contended that even if such a Notification was necessary, there

was no requirement that Notification had to be issued before the

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expiry of the period specified in the original notification.

According to him, there is no time limit prescribed in the

language of the second proviso to Section 9A(5) to issue a

Notification to extend the anti-dumping duty for a further period of

one year. In the absence of any prescription that such extension

of anti-dumping duty must be before expiry of existing

anti-dumping duty, the same cannot be imposed. The word

“continue” cannot be read to mean “continue without

interruption”. The word continue can mean both continuation

with or without interruption and considering that the Act

specifically permits initiation of investigations prior to expiry of

duty, it follows that the word “continue” under the Act would

include continuation with a break.

27)In support of this contention, he relied upon the decision of a

Constitution Bench of this Court in Life Insurance Corporation

of India v. Escorts Ltd.

11

that in the absence of expression such

as “prior” or “previous”, it cannot be contended that extension

ought to have been granted before the expiry of the original

period. He submitted that when a statute enacted in the national

economic interest comes up for consideration, the traditional

norms of statutory interpretation must yield to broader notions of

11 (1986) 1 SCC 264

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national interest and that, therefore, the Court has to interpret the

statute in tune with the national interest that the statute sought to

sub-serve. Para 63 reads as follows:

“63. We are conscious that the word “prior” or

“previous” may be implied if the contextual situation or

the object and design of the legislation demands it, we

find no such compelling circumstances justifying

reading any such implication into Section 29(1) of the

Act.”

28)Building on the aforesaid edifice, the learned counsel proceeded

further to argue that in the instant case, Notification dated

January 23, 2014 was in fact issued. According to him, such a

Notification is valid and should be treated as effective from

January 02, 2014, or else, in any case from January 23, 2014

when a Notification was issued.

29)Mr. V. Lakshmikumaran, Advocate appearing on the other side,

attempted to justify the order of the High Court on this aspect

with the reasons which the High Court has assigned in support of

its conclusion. His argument was that the High Court was right in

holding that second proviso to Section 9A(5) was only an

enabling provision and there could not be automatic extension of

anti-dumping duty simply because the ‘sunset review’ exercise

was initiated by the Government. He further submitted that the

word ‘may’ cannot and should not be read as ‘shall’ in this case.

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He pointed out that same provision, i.e., Section 9A had used the

words ‘may’ and ‘shall’ at different places. Whereas sub-section

(1) contained the expression ‘may’, sub-section (5) used the

expression ‘shall’, while second proviso was enacted with the

stipulation ‘may’. Likewise, Rule 23(1B) of the Rules used the

expression ‘shall’. From this, argument of Mr. Lakshmikumaran

was that Legislature was fully conscious as to which provision

was to be made mandatory and which provision was directory in

nature. He also argued that Section 9A was added in the Act by

way of amendment after the Indian Government became

signatory to the agreement for implementation of Article VI of

GATT, popularly known as ‘implementation agreement’. It is in

the said implementation agreement, need for review was

contemplated in Articles 11.1, 11.2 and 11.3 of the

implementation agreement which provisions categorically

provided that “the duty may remain in force pending the outcome

of such a review” which means it was not obligatory that such a

duty has to necessarily remain in force during the period when

the sunset review is to be undertaken. Since, the implementation

agreement uses the expression ‘may’ for continuation of duty

pending the outcome of sunset review, same expression was

used in second proviso to Section 9A(5) of the Act. He also

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submitted that second proviso uses the language ‘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. Laying stress on the words ‘for a further period not

exceeding one year’, he argued that it was not necessary that

the duty has to be extended for a full period of one year and such

a period can be shorter one as well, i.e., less than a year. This

would itself suggest that a Notification is mandated to prescribe

the actual period which, in no case, can be more than one year.

He also put emphasis on the word ‘continue’ in the aforesaid

expression to argue that it would mean that there should be no

discontinuance. Predicated on this, submission of Mr.

Lakshmikumaran was that once the period prescribed by the

original Notification expires, the right to exercise power under

second proviso also comes to an end inasmuch as any

notification issued after the expiry, and with a gap, would not be a

case of anti-dumping duty ‘continues to remain in force’. The

learned counsel referred to two judgments in support of his

arguments, viz. (i) Babu Varghese v. Bar Council of Kerala

12

and Harivansh Lal Mehra v. State of Maharashtra

13

.

30)From the scheme of Section 9A of the Act, it becomes clear that

12 (1999) 3 SCC 422

13 (1971) 2 SCC 54

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though the Notification for anti-dumping duty is valid for a

maximum period of five years, the said period can be extended

further with the issuance of fresh notification. For this purpose, it

is necessary to initiate the review exercise before the expiry of the

original notification, which review is commonly known as ‘sunset

review’. There may be situations where the sunset review is

undertaken but the review exercise is not complete before the

expiry of the period of original notification. It is because of the

reason that the exercise of sunset review also demands complete

procedure to be followed, in consonance with the principles of

natural justice that was followed while imposing the anti-dumping

duty in the first instance. To put it otherwise, this exercise

contemplates hearing the views of all stakeholders by giving them

adequate opportunity in this behalf and thereafter arriving at a

conclusion that the continuation of the anti-dumping duty is

justified, otherwise injury to the domestic industry is likely to

continue or reoccur, if the said anti-dumping duty is removed or

varied. Since this exercise is likely to take some time and may go

beyond the period stipulated in the original notification imposing

anti-dumping duty, in order to ensure that there is no vacuum in

the interregnum, second proviso to sub-section (5) of Section 9A

of the Act empowers the Central Government to continue the

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anti-dumping duty for a further period not exceeding one year,

pending the outcome of such a review. The question, however, is

as to whether this extension to fill the void that may be created

during the pendency of the sunset review is exercised is

automatic, once the decision is taken to have sunset review of the

anti-dumping duty or the continuation of such an anti-dumping

duty has to be by a proper notification. As noted above, the High

Court has held that second proviso is only an enabling provision

and, therefore, power vested in the Central Government under

the said proviso has to be specifically exercised, without which

the anti-dumping duty cannot continue to remain in force with the

lapse of original notification.

31)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 9A of the Act

is an enabling provision. That is very clear from the language of

the said provision itself. Sub-section (5) of Section 9A 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

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and other connected matters Page 35 of 46

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 first proviso to sub-section (5) of Section 9A. 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 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

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and other connected matters Page 36 of 46

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 fortiorari, 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.

32)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 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

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Central Government, there is an automatic continuation. The

learned counsel for respondent rightfully pointed out that the

legislature has consciously used the expression ‘may’ and ‘shall’

at different places in the same Section, i.e., Section 9A 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:

33)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

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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 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 second

proviso is to be treated as automatic to avoid the hiatus or

vacuum in between.

34)Judgment in the case of Rishiroop Polymers (P) Ltd. has no

application to the issue which we are dealing with, namely,

interpretation of second proviso to sub-section (5) of Section 9A.

The said judgment only deals with the nature of review exercise

that has to be undertaken and mentions that the entire purpose

for the review investigation is not to see whether there is a need

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for imposition of anti-dumping duty but to see whether in the

absence of such continuance, dumping would increase and the

domestic industry suffers. In fact, even in the instant case, review

exercise was completed much after the expiry of one year from

the date when the earlier notification, on completion of five years

term, came to an end. Likewise, the reliance on Section 24 of the

General Clauses Act, 1897 is also of no consequence. This

provision concerns with the orders, etc. which have already been

issued under some enactments and in the meantime those

enactments are repealed or re-enacted. In those situations,

Section 24 of the General Clauses Act provides that such orders

and regulations issued under the old Act would remain in force so

far as they are not inconsistent with the provisions of the

re-enacted Act. Such a provision again has no relevance with the

issue which we are dealing with. Since judgment in the case of

Fibre Boards Private Limited, Bangalore concerns with the

interpretation of Section 24 of the General Clauses Act, that also

would be of no help.

35)With this, we advert to the second facet of the argument, namely

whether it was permissible for the Central Government to issue

Notification dated January 23, 2014 thereby extending the

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validity of duty by one year, i.e. after the period of earlier

Notification came to an end on January 01, 2014? If so, whether

this Notification would take effect from January 01, 2014 or

January 23, 2014?

36)As noticed above, the High Court has held that once the earlier

Notification by which anti-dumping duty was extended by five

years, i.e. up to January 01, 2014, expired, the Central

Government was not empowered to issue any Notification after

the said date, namely, on January 23, 2014, inasmuch as there

was no Notification in existence the period whereof could be

extended. The High Court, in the process, has also held that the

Notification extending anti-dumping duty by five years, i.e. up to

January 01, 2014 was in the nature of temporary legislation and

validity thereof could be extended, in exercise of powers

contained in second proviso to sub-section (5) of Section 9A of

the Act only before January 01, 2014.

37)We do not find any infirmity in the aforesaid approach of the High

Court in interpreting the second proviso to Section 9A(5) of the

Act. The High Court has rightly interpreted the aforesaid

provision in the light of Article 11.1, 11.2 and 11.3 of the

Agreement for Implementation and Article VI of the GATT,

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commonly known as ‘Implementation Agreement’. These

clauses read as under:

“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 definite 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 initiate 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 of recurrence of duping

and injury. The duty may remain in force pending the

outcome of such a review.”

38)Obviously, sub-section (5) of Section 9A is in tune with the

aforesaid Articles of Implementation Agreement and is to be

interpreted in that hue.

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39)India is a signatory to the Marrakesh Agreement establishing the

World Trade Organization in 1994. Pursuant to this, it has

implemented the Agreement on Implementation of Article VI of

the GATT 1994 referred to as the Anti-dumping Agreement

(ADA), which is one of the Agreements that forms part of the

WTO treaty. In terms of Article 18.4 of the ADA, each Member

country is required to ensure the conformity of its laws,

regulations and administrative procedures with the provisions of

the ADA. As a consequence, Sections 9A, Section 9AA, Section

9B and Section 9C of the Act were enacted.

40)Two things which follow from the reading of the Section 9A(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 January 23, 2014 amends the earlier

Notification dated January 02, 2009, which is clear from its

language, and has been reproduced above. However, when

Notification dated January 02, 2009 itself had lapsed on the

expiry of five years, i.e. on January 01, 2014, and was not in

existence on January 23, 2014 question of amending a

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non-existing Notification does not arise at all. As a sequitur,

amendment was to be carried out during the lifetime of the

Notification dated January 02, 2009. The High Court, thus,

rightly remarked that Notification dated January 02, 2009 was in

the nature of temporary legislation and could not be amended

after it lapsed.

41)For this reason, plea taken by the Union of India and the

domestic industry in their appeals has to fail. Consequently, their

appeals are also dismissed.

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

(A.K. SIKRI)

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

(ASHOK BHUSHAN)

NEW DELHI;

JUNE 09, 2017

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ITEM NO.4 COURT NO.4 SECTIONS XIV

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal(Civil)

Nos.29268-29269/2014

(From the judgment and order dated 11/07/2014 in WP(C) No.

1851/2014 and WP No. 1866/2014 passed by the High Court of

Delhi at New Delhi)

UNION OF INDIA MINISTRY OF FINANCE

THROUGH SECRETARY AND ANOTHER Petitioner(s)

VERSUS

M/S KUMHO PETROCHEMICALS CO. LTD.

THROUGH ITS MANAGING DIRECTOR AND OTHERS Respondent(s)

WITH

SLP(C) NO. 28170/2014

SLP(C) NO. 29364/2014

SLP(C) NO. 31046/2014

SLP(C) NO. 27776/2014

[HEARD BY HON'BLE A.K. SIKRI AND HON'BLE ASHOK BHUSHAN, JJ.]

Date : 09/06/2017 These petitions were called on for judgment

today.

For the Petitioner(s) Ms. Rashmi Malhotra, Adv.

For Mr. B.Krishna Prasad, AOR

Mr. V.Lakshmikumaran, Adv.

Mr. S. Seetharaman, Adv.

Mr. Darpan Bhuyan, Adv.

Mr. Ankur Sharma, Adv.

Mr. Bhargava Manstha, Adv.

for Mr. M.P. Devanath, AOR

Mr. E.C. Agrawala, AOR

Mr. Sanjay Sharawat, AOR

For the Respondent(s) Mr. Abhay Kumar, AOR

Mr. Sanjay Sharawat, AOR

Mr. E.C. Agrawala, AOR

Mr. Devashish Bharuka, AOR

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Mr. V.Lakshmikumaran, Adv.

Mr. S. Seetharaman, Adv.

Mr. Darpan Bhuyan, Adv.

Mr. Ankur Sharma, Adv.

Mr. Bhargava Manstha, Adv.

for Mr. M.P. Devanath, AOR

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment

of the Bench comprising His Lordship and Hon'ble Mr.

Justice Ashok Bhushan.

Leave granted.

For the reasons recorded in the Reportable judgment,

which is placed on the file, the appeals are dismissed.

(H.S. Parasher) (Parveen Kumar)

Court Master AR-cum-PS

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