FORECH INDIA LTD Vs. DESIGNATED AUTHORITY & ORS

JUDGEMENT

(1.) The Government of India had imposed Anti-Dumping Duty on imports of rubber chemicals known as PX-13 (6PPD) originating in or exported from China PR and Korea PR for a period of five years. The levy expired on 04.05.2013. Four days prior thereto on 30.04.2018 Sunset Review proceedings were initiated by the respondents, on a petition by the Domestic Industry, which had contended that continuation of Anti-Dumping Duty for a further period of five years would be necessary. As of 05.05.2013 there was no levy of Anti-Dumping Duty in force dated 05/07/2013. After a gap of 60 days from the date of expiry of the levy, the Central Government by Customs Notification No. 17/2013 retrospectively revived the Anti-Dumping Duty with effect from 05.05.2013 and extended it till 04.05.2014. The Sunset Review concluded with the declaration of the Final Findings on 29.04.2014. According to the petitioners, since the Final Findings were published in the Official Gazette only on 28.07.2014, the latter date would be reckoned as its notified date. The Anti-Dumping Duty levied during the Sunset Review period ended on 04.05.2014. By Customs Notification no. 35/2014 dated 24.07.2014, the Government of India re-imposed the Anti-Dumping Duty for another term of five years. There was a gap of 80 days or a levy-free period between the expiry of Anti-Dumping Duty which was applicable during the Sunset Review period, and a fresh levy as a result of Final Findings. The petitioner has challenged: i) the extension of Anti-Dumping Duty for the one year pending the Sunset Review, as well as ii) for the five years pursuant to the Sunset Review determination.

(2.) The petitioners contend that in view of the decision of this Court in Kumho Petrochemicals Co. Ltd. vs Union of India, (2014) 306 ELT 3 (Del) the notification for extension of Anti-Dumping Duty for another year on the conclusion of the Sunset Review, can be done within the period of five years, the said duty cannot be extended after such expiry. The petitioner relies upon the terms of section 9A(5) of the Customs Tariff Act, 1975 (in short, the "Act") and Rules 18 and 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and For Determination of Injury) Rules, 1975 (in short, the "Rules"). They contend that India's commitment under the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 1994 (hereinafter referred to an the "Implementation Agreement") is sacrosanct and domestic law i.e. the aforesaid Act and Rules have been adopted in the light of the International Treaty Obligation, hence, the Rules would have to be interpreted in harmony with the Treaty language so as to give effect to the government's commitments in the Treaty Commissioner of Customs vs G.M. Exports, (2016) 1 SCC 91. Article 11 of the aforesaid Implementation Agreement makes provision for Duration and Review of Anti-Dumping Duties and Price Undertakings. Article 11(4) thereof lays down the time limit for a Sunset Review. It reads as under:

(3.) Section 9A(5) of the Act reads as under: