Bhargav D. Karia, J.

1. Heard learned Senior Advocate Mr. Mihir Joshi assisted by learned advocate Ms. Gargi Vyas for the petitioners and respondents Nos. 1 to 3 in Civil Application No. 1 of 2020 and learned advocate Mr. Paresh Dave for the respondent No. 6 and the applicant in Civil Application No. 1 of 2020 as well as learned advocate Mr. Harsheel Shukla for the respondent No. 1.

2. Having regard to the controversy involved in this petition, with the consent of the learned advocates for the respective parties, the petition is taken up for final hearing.

3. Rule returnable forthwith. Learned advocates Mr. Paresh Dave and Mr. Harsheel D. Shukla waives service of notice of rule on behalf of the respective respondents.

4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the Notification No. 03/2020-Customs (ADD) dated February, 2, 2020 issued by respondent no.1 - Union of India, Ministry of Finance, Department of Revenue, Government of India, whereby Notification No. 28/2016-Customs(ADD) dated 5th July, 2016 and Notification No. 28/2019 - Customs(ADD) dated 24th July, 2019 are rescinded and thereby Anti- Dumping Duty (For short "ADD") imposed on Purified Terephthalic Acid (here-in-after referred to as "PTA" or the "Product") originating in or exported from the People's Republic of China, Iran, Indonesia, Malaysia, Taiwan, Korea RP and Thailand is revoked.

5. Respondent no.2 issued a public notice vide Notification No. 14/7/2013-DGAD dated October 8, 2013 initiating the investigation in accordance with Sub-rule (5) of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (For short "the Rules") to determine the existence, degree and effect of the alleged dumping and to recommend the amount of anti-dumping duty, which, if levied, would be adequate to remove the injury to the domestic industry on imports of PTA originating from the aforesaid countries.

6. Respondent no.2 issued the preliminary findings vide Notification No. 14/7/2013- DGAD dated June 19, 2014 recommending imposition of provisional anti-dumping duty on imports of PTA originating in or exported from aforesaid countries.

7. Respondent no.1 by Notification No. 36/2014-Customs (ADD) dated July 25, 2014 imposed provisional anti-dumping duties on PTA originating in or exported from aforesaid countries.

8. Designated Authority - respondent no.2 by final findings issued Notification No. 14/7/2013-DGAD dated April 7, 2015 confirming the preliminary findings notified vide Notification dated June 19, 2014 and recommended imposition of ADD on imports of PTA from Korea RP and Thailand.

9. Respondent no.1 imposed ADD vide Notification No.F.No.354/95/2014-TRU dated May 27,2015 for a period of five years from the date of imposition of provisional anti-dumping duty i.e. July 25, 2014 on imports of PTA from Korea RP and Thailand.

10. Respondent No. 2 - Designated Authority (For short "DA") issued a public notice vide Notification No. 14/8/2015-DGAD dated June 18, 2015 initiating anti-dumping investigation concerning imports of PTA originating from China PR, Iran, Indonesia, Malaysia and Taiwan.

11. Respondent no.2 in its preliminary findings vide Notification No. 14/8/2015- DGAD dated November 12, 2015 recommended imposition of provisional anti-dumping duty on the imports of PTA including its variants "Medium Quality Terephthalic Acid" and "Qualified Terephthalic Acid", originating in, or exported from, the People's Republic of China, Iran, Indonesia, Malaysia and Taiwan.

12. Respondent no.1 vide Notification No. 60/2015-Customs (ADD) dated December 10, 2015 imposed provisional anti-dumping duty on the basis of aforesaid preliminary findings of respondent no.2 on the aforesaid product originating in or exported from People's Republic of China, Iran, Indonesia, Malaysia and Taiwan.

13. Respondent no.2 on conclusion of investigation filed final findings vide Notification dated June 9, 2016 confirming the preliminary findings and recommended imposition of ADD against import of PTA from China PR, Indonesia, Iran, Malaysia and Taiwan.

14. Respondent no.1 on the basis of aforesaid final findings of respondent no.2 issued Notification No. 28/2016 - Customs (ADD) dated July 5, 2016 imposed anti-dumping duty on PTA including its variants originating in, or exported from the People's Republic of China, Iran, Indonesia, Malaysia and Taiwan.

15. Petitioner Nos. 1 and 2 filed an application to initiate the sunset review in the matter of continuation of ADD on the imports of PTA originating in or exported from Korea RP and Thailand and pursuant to such application, respondent no.2 issued Notification No. 7/36/2018 - DGTR dated October 31, 2018 initiating sunset review in the matter of continuation of anti-dumping duty on imports of PTA originating in or exported from Korea RP and Thailand.

16. Respondent no.2 after examining the likelihood of continuation/recurrence of dumping and injury to the domestic industry issued final findings dated June 28, 2019 and recommended continued imposition of ADD for a period of five years concerning imports of PTA originating in or exported from Korea RP and Thailand.

17. Considering the final findings of respondent no.2, respondent no.1 imposed ADD vide Notification No. 28/2019- Customs(ADD) dated July 24, 2019 for a period of five years concerning imports of PTA originating in or exported from Korea RP and Thailand.

18. Respondent no.1 Central Government however, by Notification No. 3/2020- Customs(ADD) dated February 2, 2020 revoked the anti-dumping duty imposed on PTA including its variants "Medium Quality Terephthalic Acid" and "Qualified Terephthalic Acid" falling under tariff item 2917 36 00 of the First Schedule to the Customs Tariff Act, 1975 (For short "the Act") originating in or exported from People's Republic of China, Iran, Indonesia, Malaysia, Taiwan, Korea RP and Thailand and imported into India rescinding the notifications of the Government of India in the Ministry of Finance (Department of Revenue) being Notification No. 28/2016-Customs (ADD) dated 5th July, 2016 and Notification No. 28/2019-Customs (ADD) dated 24th July, 2019.

19. Petitioner No. 3 - Association of which petitioner nos. 1 and 2 are also the members filed a representation dated February 18, 2020 requesting respondent no.1 to reconsider the withdrawal of ADD on imports of the product. The petitioner again made a representation dated July 21, 2020 to respondent no.1 with a request to consider industry representation and withdraw the Notification No. 3/2020 and restore the ADD earlier imposed for the reason that the industry is also now suffering very badly because of full scale production of petrochemicals in major exporting countries such as China, Korea and Thailand, while the downstream industries globally not having resumed full normalcy.

20. The petitioner has preferred this petition as respondent no.1 failed to consider the representations filed by the petitioners with the following prayers:

"a) This Hon'ble Court be pleased to issue a writ of certiorari or a writ, order or direction in the nature of certiorari so as to quash and set aside Impugned Notification No. 03/2020-Customs (ADD) dated February 2, 2020 issued by the Respondent No. 1;

b) This Hon'ble Court be pleased to issue a writ of mandamus or a writ, order or direction in the nature of mandamus so as to direct the Respondent No. 1 to revive the Notifications No. 28/2016- Customs(ADD) , dated the 5th July, 2016 and 28/2019- Customs(ADD), dated the 24th July."

21. Learned Senior Advocate Mr. Mihir Joshi appearing with learned advocate Ms. Gargi Vyas for the petitioner submitted that the impugned notification is issued by respondent no.1 arbitrarily and without following the due process of law whereby rescinding the Notification No. 28/2016-Customs (ADD) dated July 5, 2016 by which anti-dumping duty was imposed on import of PTA from People's Republic of China, Iran, Indonesia, Malaysia and Taiwan and Notification No. 28/2019- Customs(ADD) dated July 24, 2019 by which anti-dumping duty was imposed on PTA from Korea RP and Thailand after detailed investigation and determination made by respondent no.2 in terms of Section 9A of the Act and the Rules.

22. It was submitted that as per the said notification ADD imposed would be effective for a period of five years from the date of publication of the said notification in the official gazette and such period can only be curtailed by revoking the imposition of ADD by way of "review" conducted by the respondent no.2 under section 9A(5) of the Act and Rule 23 of the Rules.

23. It was submitted that action of the respondent no.1 of revoking the ADD without adopting mandatory procedure is arbitrary, without authority of law, in violation of principles of natural justice and without any logical reasoning on factual basis.

24. It was submitted that Notification No. 28/2019 dated July 24, 2019 would have expired on July 23, 2024 had it not been revoked by the impugned notification.

25. It was submitted that the petitioners have statutory right under section 9A(5) of the Act read with Rule 23(1B) of the Rules to file a sunset review application before the Designated Authority for continuation of duty for a further period of five years.

26. It was submitted that in terms of Trade Notice No. 3/2021 dated April 4, 2021 domestic industry is required to file the petition seeking extension to continue the anti-dumping duty measures at least 270 days prior to the date of expiry of anti-dumping measures. As in the facts of the case, the duty is expiring on 23.07.2024, the petitioner was required to file application for sunset review at least 270 days prior to expiry of the duty i.e. 23.10.2023.

27. It was submitted that however, on account of premature withdrawal of the duties by respondent no.1, right of the applicant to seek continuation of duty is being impeded.

28. It was submitted that issue of unilateral revocation by the Central Government of countervailing duty for which similar provisions are provided in the Act and the Rules, this Court in case of Realstrips Limited and others v. Union of India and others (judgment dated 02.09.2022 passed in Special Civil Application No. 4495 of 2022) has already held that withdrawal of duty without following the due process of law, is without authority of law and against the statutory mandate and consequently, set aside such notification. It was submitted that the ratio of the said judgment applies to the facts of the case on all four corners. It was therefore, submitted that the impugned notifications are required to be quashed and set aside by directing the respondent no.2 to initiate sunset review as premature withdrawal of ADD without following the review process would be illegal and Designated Authority is required to conduct sunset review and on the basis of such investigation and final findings on conclusion of such sunset review after giving an opportunity of hearing to all concern, the Central Government may pass appropriate order exercising powers under section 9A of the Act.

29. Learned Senior Advocate Mr. Joshi submitted that 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). In terms of Article 18.4 of the Agreement, each Member country is required to ensure the conformity of its laws, regulations and administrative procedures with the provisions of the Agreement. As a consequence, Sections 9A, Section 9AA, Section 9B and Section 9C of the Act were enacted.

30. It was submitted that Section 9A(5) of the Act mandates that ADD shall be levied for a period of five years, unless revoked earlier. Notification No. 28/2016 Customs (ADD) : , dated the July 5, 2016 and Notification No. 28/2019 Customs (ADD), dated the July 24, 2019 specifically stated that the ADD shall be for five years. It was submitted that Rule 23 (1A) of the Rules lay down the jurisdictional conditions and the basis to be followed in a situation where a review is to be undertaken to examine the need for continued imposition for any anti-dumping duty. It was submitted that the impugned Notification has been issued by respondent No. 1 completely by-passing specifically prescribed statutory provisions of Rule 23(1A), whereunder a subsisting levy of ADD can be withdrawn only upon a satisfaction of the prescribed conditions and therefore, the impugned Notification is issued in violation of Rule 23(1A) of the Rules.

31. It was submitted that Section 9A(5) of the Act is in tune with the Article 11 of the Anti-Dumping Agreement and provides that ADD may be imposed for a period of 5 (five) years. However, the period of 5 (five) years can be curtailed after following a procedure followed as laid down under the law and for the said purpose, respondent No. 2 is required to conduct a review in terms of Rule 23(1A) of the Rules to ascertain whether there has been such a significant change in the facts and circumstances that it is considered necessary either to withdraw or modify appropriately the ADD earlier imposed and unless respondent No. 2, either suo motu or on the basis of an application establishes that there has been a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the determination made by respondent No. 2 earlier leading to imposition of duty, continues to hold the field. It was therefore, submitted that respondent no. 1 cannot rescind the duty and the valuable economic rights earlier conferred onto the domestic industry.

32. It was submitted that though the impugned Notification is purportedly issued in exercise of the powers conferred by sub-sections (1) and (5) of Section 9A of the Act, respondent No. 1 did not however follow the due process of law prescribed under Section 9A(5) of the Act read with Rule 23(1A) of the Rules for revocation of ADD and respondent No. 1 can impose or revoke or extend the ADD only after conducting "review" by Respondent No. 2 in terms of Section 9A(5) of the Act read with Rule 23(1A) of the Rules.

33. It was submitted that once ADD has been imposed, it can be withdrawn under Section 9A(1) and Section 9A(5) of the Act only under two situations - (a) material change in circumstance; and (b) expiry of period. The changed circumstance could relate to one or more factors which led to imposition of duty. Further, such material change in circumstances can be examined and established only by Respondent no. 2, and that too after following the procedure prescribed under the Rules. However, there is no such evidence of changed circumstance before respondent No. 1 warranting withdrawal of duty before its life. It was submitted that respondent No. 2 has not conducted any "review" to establish any changed circumstance warranting withdrawal of duty and therefore, the aforesaid mandatory conditions were not satisfied while issuing the impugned Notification. It was submitted that respondent No. 1 having failed to do so, its attempt to revoke and rescind the ADD through the impugned Notification is without authority of law; and is contrary to the terms of sub- section 1 and 5 of Section 9A of the Act read with Rule 23 of the Rules and has taken away valuable rights conferred onto the petitioners through notification levying duties.

34. It was submitted that respondent No. 1 has a specified and limited role in relation to such a review, which is to either accept or not accept the recommendations made by Respondent No. 2, post a review proceeding conducted as prescribed under Rule 23(1A) of the Rules. Respondent No. 1 has no statutory jurisdiction to rescind or withdraw a subsisting ADD, unless there is a recommendation in this regard by respondent No. 2, complying with the prescribed jurisdictional conditions of Rule 23(1A) of the Rules. Since Respondent No. 2 having conducted no proceedings of review under Rule 23(1A) of the Rules in the present case, the sine qua non for the exercise of jurisdiction by the Respondent No. 1 is not satisfied and therefore, respondent No. 1 has acted wholly without the authority of law and wholly without the jurisdiction in issuing the Impugned Notification.

35. It was submitted that under the provisions of Section 9A of the Act and the related provisions of law, respondent No. 1 has no sui generis or suo moto jurisdiction to issue a notification to rescind a subsisting levy of ADD and in fact, the provisions of Rule 23(1A) of the Rules specifically negate the possibility of any such sui generis or suo moto jurisdiction of the Respondent No. 1.

36. Learned Senior Advocate thereafter pointed out the jurisdictional facts that are required to be satisfied to justify respondent No. 2 making a recommendation for a withdrawal of any subsisting ADD as under:

a) Positive information substantiating the need for such review;

b) Reasonable period of time having elapsed since the imposition of the definitive anti-dumping duty. In the present case the ADD was imposed vide Notification dated July 24, 2019 and the Impugned Notification revoking the ADD; and

c) Respondent No. 2 must, after conducting an investigation and collecting information from various interested parties, including domestic industry, foreign producers and Indian importers/consumers, reach a conclusion that injury to the Domestic Industry is not likely to continue or recur if the said ADD is removed or varied.

37. It was submitted that the determinative factor statutorily prescribed under Rule 23(1A) of the Rules before any recommendation can be made by respondent No. 2 that the ADD in question must be withdrawn is that, respondent No. 2 must come to a conclusion that the injury to the Domestic Industry is not likely to continue or recur if the said ADD is removed. It was submitted that this critical factor appears to have been entirely ignored by respondent No. 1 while issuing the impugned Notification, as there is not even a whisper of any consideration of whether the injury to the Domestic Industry is likely to continue or recur on account of the rescinding the subsisting ADD.

38. It was submitted that Section 9A of the Act and its related provisions do not in any manner provide for or contemplate the availability of products at "competitive prices" as being an essential ingredient for consideration, in relation to the levy or continuation of ADD. Section 9A of the Act mandates the various provisions and the procedures to deal with dumping, imported goods entering India at dumped prices (goods being sold in India at a price lower than the price at which they are sold in the domestic market of the foreign exporter), which cause material injury to the domestic Indian industry. It was submitted that the entire framework of provisions and procedure have no reference to "competitive prices" being available to the domestic user industry. It was submitted that to rescind a levy of ADD on the basis that a product should be available at "competitive prices" to the domestic user industry is wholly alien and antithetic to the provisions of Section 9A of the Act and its related provisions and if the availability of the products at "competitive prices" to the domestic user industry was to be taken as the definitive factor to determine the imposition or continuation of the anti-dumping duty, it would render entirely nugatory and redundant all the provisions and procedures mandated in respect of ADD under the Act. It was submitted that the basis of availability of products at "competitive prices" for the domestic user industry as a definitive factor for the rescission of a notification for the levy of the ADD is ultra vires Section 9A of the Act and its related provisions and therefore, this basis is also unconstitutional in terms of Article 14, 19(1)(g), and 300A of the Constitution.

39. It was submitted that the concept of "larger public interest" to the exclusion of the consideration of the injury caused to the Domestic Industry is also wholly contrary to, and incompatible with the provisions of Section 9A of the Act and its related provisions.

40. It was submitted that respondent No. 1 has not revoked the present duty under Section 21 of General Clauses Act 1897 (hereinafter referred to as "the General Clauses Act") and in any case, even Section 21-of the General Clauses Act, could not have been invoked/applied in the present case. Reliance was placed on Section 21 of the Act which provides as under:

"21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws. Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."

41. It was submitted that as is evident from the above-said provision, respondent No. 1 does not have benefit of Section 21 of the General Clauses Act for the simple reason that rescindment or amendment of an earlier notification can be done only after following a procedure adopted similar to the procedure adopted while imposing the duty. It was submitted that despite powers conferred under Section 9A of the Act, respondent No. 1 lacks legal authority to impose ADD without a recommendation from Respondent No. 2 and in the like manner, despite powers conferred under General Clauses Act and/or Section 9A of the Act, respondent No. 1 lacks legal authority to revoke any subsisting ADD without a recommendation from Respondent No. 2.

42. Relying upon the decision in case of Nazir Ahmed v. King Emperor, AIR 1936 PC 253, it was submitted that in the said case, the Privy Council declared that "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." It was submitted that this salutary rule has been universally followed in numerous later judgments by the Hon'ble Supreme Court in case of Rao Shiv Bahadur Singh v. State of V.P. reported in AIR 1954 SC 322; in case of State of U.P. v. Singhara Singh reported in AIR 1964 SC 358; in case of Meera Sahni v. Lieutenant Governor of Delhi & Ors. reported in 2008 (9) SCC 177 and in case of Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Lid. & Anr. reported in (2005) 7 SCC 2341.

43. Relying upon the judgment in case of Reliance Industries Ltd. Versus Designated Authority reported in 2006 (202) E.I.T. 23 (S.C.), it was submitted that the Hon'ble Supreme Court has elaborated the object and purpose of ADD in the following manner:

"11. The result was that an industrial base was created in India after independence and this has definitely resulted in some progress. The purpose of Section 9A can, therefore, easily be seen. The purpose was that our industries which had been built up after independence with great difficulties must 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. This is done by selling goods at a very low price for some time so that the domestic industries cannot compete and are thereby destroyed, and after such destruction has taken place, prices are again raised.

12. The purpose of Section 9A is, therefore, to maintain a level- playing field and prevent dumping, while allowing for healthy competition, The purpose is not protectionism in the classical sense (as proposed by the German Economist Friedrich List in his famous book 'National System of Political Economy' published in 1841) but to prevent unfair trade practices. The 1995 Amendment to Section 9A was apparently made in pursuance to Article VI of the General Agreement on Tariffs and Trade 1994 (GATT 1994) which permitted anti-dumping measures as an instrument of fair competition.

13. The concept of anti-dumping is founded on the basis that a foreign manufacturer sells below the normal value in order to destabilize domestic manufacturers. Dumping, in the short term, may give some transitory benefits to the local customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run."

44. Learned Senior Advocate Mr. Mihir Joshi further submitted that the broad and comprehensive procedural requirements relating to investigations, time periods for completion of investigation, and access to information are available to all interested parties, along with reasonable opportunities to present their views and arguments and other requirements concern the offering, acceptance, and administration of price undertakings by exporters in lieu of the imposition of anti- dumping measures and the Rules further provide for the timing of imposition of anti-dumping duties, the duration of such duties, and requires Designated Authorities to periodically review the continuing need for anti- dumping duties and price undertakings.

45. It was submitted that the Hon'ble Supreme Court in case of Automotive Tyre Manufacturers v. Designated Authority (2011) 2 SCC 258, held that the functions of respondent No. 2 are quasi-judicial in nature. It therefore, has to conform to principles of natural justice.

46. It was submitted that the nature and scope of the exercise by respondent No. 2 and respondent No. 1 Central Government was lucidly explained by Hon'ble Supreme Court in case of Reliance Industries v. Designated Authorities(supra).

47. It was submitted that respondent No. 2 in its final findings published vide Notification No. 14/8/2015-DGAD, dated the June 9, 2016, had come to following conclusion thus conferring valuable rights onto the domestic industry, which could not have been upturned without following due process of law and investigation -

i. the subject goods have been exported to India from subject countries below its normal value, resulting in dumping,

ii. the domestic industry has suffered material injury due to dumping of the subject goods from the subject countries;

iii. material injury has been caused by the dumped imports of subject goods from the subject countries, and has recommended the imposition of definitive ADD on imports of the subject goods originating in, or exported from the subject countries.

48. It was submitted that respondent No. 2 recommended imposition of definitive ADD on the imports of subject goods, originating in or exported from the subject countries and imported into India, in order to remove injury to the domestic industry. Respondent No. 1, after considering the aforesaid final findings of respondent No. 2 in exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Act, read with rules 18 and 20 of the Rules imposed ADD vide Notifications No. 28/2016- Customs(ADD) : , dated the July 5, 2016 on PTA, originating in, or exported from, the People's Republic of China, Iran, Indonesia, Malaysia and Taiwan and imported into India.

49. It was submitted that similarly, respondent No. 2 in its final findings, published vide notification No. 7/36/2018- DGAD, dated the June 28, 2019 had come to the following conclusion that-

i. there is continued dumping of the subject goods and the imports are likely to enter the Indian market at dumped prices in the event of expiry of duty:

ii. the parameters such as significant dumping margin, injury margin, significant volume of imports, positive price undercutting, price attractiveness of the Indian market, low return on investment earned by the domestic industry and surplus capacities of the exporters,

collectively and cumulatively shows that injury to the domestic industry is likely in the event of cessation of duty and the situation of domestic industry is likely to deteriorate if the existing anti- dumping duties are allowed to cease;

iii. the deterioration in the performance of the domestic industry is likely because of dumped imports from the subject country and thus, the anti-dumping duties are required to be extended;

iv the domestic industry has itself sought continued imposition of duty and the authority concludes that it is appropriate to continue the same level of ADD as imposed earlier in the original investigation.

50. It was submitted that respondent No. 2 recommended the imposition of definitive ADD on imports of subject goods, originating in or exported from the subject countries and imported into India, in order to remove injury to the domestic industry. Respondent No. 1, after considering the aforesaid final findings of respondent No. 2 in exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Act, read with rules 18, 20 and 23 of the Rules imposed ADD vide Notifications No. 28/2019- Customs(ADD), dated the July 24, 2019 on PTA, originating in, or exported from, the Korea RP and Thailand and imported into India.

51. It was submitted that respondent No. 1 had imposed ADD after detailed investigation by Respondent No. 2 and only after satisfying that imposition of ADD was in public interest and having imposed ADD in public interest, respondent No. 1 could not have revoked the same without conducting review. There can be no information or evidence which can establish that imposition or existence of ADD was causing significant hardship to public at large. On the contrary, Respondent No. 2 has come to a conclusion that impact of ADD on the consumer was bare minimal and thus, the statement that duty is being withdrawn in greater public interest is baseless and contrary to the past decision and material on record.

52. It was submitted that the powers exercised by Respondent No. 1 are not legislative and can only at best be described as quasi-judicial. In this regard, reliance is placed on the decision of Apex Court in case of Reliance Industries Lid. v. Designated Authority and others reported in 2006:INSC:591 : (2006) 10 Supreme Court Cases 368. It was submitted that thus 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. In the present case, respondent No. 2, after conducting quasi-judicial function had recommended imposition of ADD on imports of the Product and Respondent No. 1 imposed the same after satisfying itself that there is no adverse impact of the duty on the users, and continued imposition of ADD is necessary. Such recommendation and imposition has created valuable rights on the domestic industry. However, Respondent No. 1, without following statutory provisions and without affording an opportunity of being heard to the domestic industry, has revoked the anti-dumping duty. Respondent No. 2 ought to have conducted review by granting an opportunity of hearing to affected domestic industry before deciding against them.

53. It was submitted that the petitioners have not been given any opportunity of hearing or presented with any evidence that they could rebut prior to the issuance of the Impugned Notification. There has therefore been a breach of natural justice and due process which has adversely impacted the petitioners. It was submitted that in this background, it is necessary that this Court directs the respondent No. 1 to make available for the scrutiny of this Court its records and files pertaining to the issuance of the impugned Notification, with a view to determine, (i) what compelling factors changed in relation to the Textile Industry between 24 July 2019 and 1" February 2020, requiring the issuance of the Impugned Notification, (ii) whether there was a consideration of the issue of the injury that may be suffered by the domestic industry if the subsisting ADD were to be withdrawn, (iii) whether the provisions of Rule 23(1A) and their applicability in the circumstances of the case were considered, and, (iv) how the period from 24th July 2019 to 1" February 2020 was considered a lapse of a reasonable period to justify a withdrawal of the subsisting anti-dumping duty.

54. Relying upon the judgment of the Hon'ble Delhi High Court in the case of Indian Metal and Ferro Alloys ltd. Versus Designated Authority reported in [ 2008 (224) ELT. 375 (Del.), it was submitted that it is well settled that in examining a review as to the continued imposition of ADD, the Domestic Industry should not be placed in a status quo ante with respect to imposition of the anti-dumping duty. In the present case, the Domestic Industry would be placed in a status quo ante consequent to the revocation of the ADD by way of the impugned Notification. The product is a highly capital-intensive product, wherein public and private sector companies have invested Rs. 25,000 Crores. While recommending extension of ADD, respondent No. 2 found that the return on capital employed earned by the industry was even below a level required to service the funds. It was submitted that while the country needed effort and action to reinvest the earnings to enhance the capacities further, revocation of duty has deprived the country of the reinvestment economics and this is particularly important and relevant when capacities in exporting countries are far higher than their own domestic demand and Indian market is largely saturated in terms of demand-supply.

55. It was submitted that the legislature has cast certain mandate on respondent No. 1, i.e., to impose ADD to remove the injury when Respondent No. 2 after conducting investigation concludes that dumping of a product causes injury to the domestic industry. The purpose of imposition of ADD is to provide a level- playing field and to protect and guard the domestic industry against unfair trade practice and withdrawal of such duty has severely damaged the right to business conferred onto the domestic industry under Article 14, 19(1)(g) of the Constitution.

56. Thereafter, reference was made to budget speech 2020-21 as under:

"143. Chemicals are crucial feed stocks for downstream users. PTA, for example, is a critical input for textile fibres and yarns. Its easy availability at competitive prices is desirable to unlock immense potential in textile sector which is a significant employment generator. Therefore, in the larger public interest, anti-dumping duty on PTA is being abolished."

57. It was submitted that however, in the instant case, there can be no doubt that imposition of ADD was not against public interest. The respondent No. 1 itself had earlier imposed ADD on the imports of PTA, a number of times and extended the same thereafter through review proceeding. At the stage of review proceedings, respondent no. 2 specifically found that the impact of ADD on the eventual public was minimal. It was submitted that the consumers had represented before both respondent No. 1 and 2 at that time and only thereafter, respondent no. 1 had extended the ADD. Respondent No. 1 was satisfied that the arguments of adverse impact by the consumers were without any substance. Further, there is no documented history of adverse effect of these duties on the consumers. The domestic industry even brought material to show that the performance of the downstream industry at the least improved during the period when ADD was in force, and major consumers of PTA had shown significant improvement in performance. The domestic industry had also shown that if some downstream consumers had not improved their performance, the reasons for the same were entirely different and were not linked to imposition of ADD.

58. It was submitted that respondent No. 1 has taken a narrow view in considering only immediate consumers' interest and has completely ignored the larger public interest. Public interest is a much wider term encompassing therein the interests of domestic producers of the Product, its consumers, the raw material suppliers, and public at large. While revoking the ADD, respondent No. 1 has considered only the interests of immediate consumers and therefore conclusion for revoking of duty should be considered insufficient and arbitrary. In any event, there was no verifiable evidence showing adverse impact of the ADD earlier imposed and respondent no. 1 could not have acted on mere allegations.

59. It was submitted that ADD can be imposed only if the investigation establishes that dumping caused injury. Similarly, revocation can be justified only if it is established that such imposition is no longer necessary and the same is also not be in public interests after conducting investigation. It was submitted that Consumer Industry will always be looking for access to material at dumped prices and would always be confronting with domestic manufacturers and Consumers always want access to lowest possible prices even at the cost of causing injury to domestic manufacturing unit. It was submitted that it is for the respondent No. 1 to balance the interests of all side and in fact, India does not even impose ADD upto the full extent of margin of dumping, and restricts the same to an amount found sufficient to address injury to the domestic industry. Thus, the amount of duty recommended by the Respondent No. 2 and imposed by the Respondent No. 1 is an amount found necessary to address injury to the domestic industry.

60. In support of his submissions, reliance was placed on the following decisions:

1) In case of Nava Samaj Limited, Nagpur v. The Registrar of Companies reported in AIR 1966 BOM 218.

2) In case of A.K. Roy and another v. State of Punjab and others reported in (1986) 4 Supreme Court Cases 326.

3) In case of State of Kerala and others v. K.G. Madhavan Pillai and others reported in (1988) 4 Supreme Court Cases 669.

4) In case of Indian National Congress(1) v. Institute of Social Welfare and others reported in 2002:INSC:278 : (2002) 5 Supreme Court Cases 685.

5) In case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others reported in (2003) 2 Supreme Court Cases 111.

6) In case of Rishiroop Polymers (P) Ltd. v. Designated Authority & Additional Secretary reported in (2006) 4 Supreme Court Cases 303.

7) In case of Reliance Industries Ltd. v. Designated Authority and others reported in 2006:INSC:591 : (2006) 10 Supreme Court Cases 368.

8) In case of Indian Metal and Ferro Alloys Ltd. v. Designated Authority reported in (2008) 224 ELT 375.

9) In case of Automotive Tyre Manufacturers Association v. Designated Authority and others reported in (2011) 2 Supreme Court Cases 258.

10) In case of Union of India and another v. Kumho Petrochemicals Company Limited and another reported in (2017) 8 Supreme Court Cases 307.

11) In case of Century Plyboards (I) Ltd. and another v. Union of India and others reported in (2020) 1 Gauhati Law Reports 741.

61. Learned advocate Mr. Paresh Dave appearing for applicant in Civil Application No. 1 of 2020 for joining party was permitted to make submissions. It was submitted by Mr. Dave that for revocation of ADD under section 9A(5) of the Act, the Central Government is not required to initiate release proceedings to Designated Authority. It was submitted that Section 9A(5) of the Act provides that ADD imposed under this section shall unless revoked earlier ceases to have effect on expiry of five years from the date of imposition. It was therefore, submitted that the Central Government is having not only the power but obligation to revoke the ADD during the period of five years at any time.

62. It was submitted that if review is always initiated by the Designated Authority then recommendation of Designated Authority may have to be awaited but if no review is initiated and Central Government found that ADD should not be continued in public interest then same can be revoked at any time by rescinding the notification issued for levy of ADD.

63. It was submitted that it is open for the Central Government not to accept the recommendation of DA as held in case of Alembic Ltd. v. Union of India reported in 2013 (291) E.L.T. 327 (Guj.) then it is also open for the Central Government to undertake its own exercise to examine the material data and take appropriate decision and action for rescinding the notification by revoking ADD and only consideration in such situation would be whether public interest demanded withdrawal of ADD and then the Court may examine whether the public interest is better served by withdrawing of ADD or not. It was submitted that ADD in facts of the case was imposed since 1997 and it was not a new notification.

64. Reference was made to Rule 23 of the Rules which provides for review and reliance was placed on Rule 23(1) which provides that ADD imposed under the provisions of section 9A of the Act shall remain in force to the extent necessary to counter act the dumping which is causing injury. It was therefore, submitted that the Central Government without waiting for the review to be done by DA can revoke the ADD at any point of time during five years for the period for which ADD is imposed by the notification.

65. It was submitted that the PTA Users Association would be directly affected party, if any, if this Court comes to the conclusion that revocation of Notification No. 03/2020-Customs (ADD) dated February, 2, 2020 issued by respondent no.1 is bad in law, as notification imposing ADD on import of PTA would be revived resulting in making the operation of members of Association unviable as PTA Users Association members are facing difficult times since Covid-19 and may suffer immensely if they have to pay ADD on import of PTA from the subject countries. It was therefore, submitted that when the Central Government while discharging their legislative functions for revoking ADD based upon the information, document and data decision for taking appropriate action of withdrawing ADD is taken.

66. In support of his submissions, reliance was placed on the following decisions:

1) In case of Prabodh Verma and others v. State of Uttar Pradesh and others reported in (1984) 4 Supreme Court Cases 251.

2) In case of Union of India v. Northern Plastics Ltd. reported in 1992(61) ELT 74 (Del).

3) In case of M/s. Neyvely Lignite Corpn. Ltd. v. Special Tahsildar (Land Acquisition), Nevyely and others reported in AIR 1995 Supreme Court 1004.

67. Learned advocate Mr. Harsheel Shukla for respondent no.1 Union of India submitted that the Designated Authority is only a recommendatory body of the Central Government that determines the factual aspect of dumping duty etc. and once the recommendation is received, it is for the Central Government to examine the implication of imposition of ADD, taking into account overall public and economic interest of the country and also balancing the interests of the domestic (manufacturing) industry and the user industry if a duty is imposed. It was therefore, submitted that it is the Central Government alone that is empowered to impose ADD in discharge of its sovereign function.

68. Reliance was placed on the decision of Hon'ble Supreme Court in case of The Designated Authority versus M/s. The Andhra Petrochemicals Limited (Judgment dated 1st September, 2020 in Civil Appeal No. 3046- 3048 of 2020), wherein Hon'ble Apex Court held as under:

"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."

69. It was therefore, submitted that the Central Government has the absolute discretion whether to continue the ADD imposed by accepting the recommendation for levy as per the final findings given by DA.

70. Learned advocate Mr. Shukla thereafter referred to and relied upon the following averments made in affidavit in reply filed on behalf of respondent no.2 to submit as to what has weighed with Central Government for revocation of ADD by impugned Notification No. 3/2020 :

"12 I say and submit that the ADD on PTA has been in force for a good part of the last 23 years. The ADD on import of PTA was initially imposed vide notification No. 85/97-Customs dated the 21st November, 1997, and has been levied for major part of the period since then in one form or the other on import of PTA from different exporters and countries.

13. I further state and submit that. Post imposition of ADD, in July, 2019, the Ministry of Finance (Respondent No. 1) had received requests from the administrative Ministry (Ministry of Textiles) (Respondent No. 3) in August 2019 and December, 2019 for revocation of ADD on PTA. The Ministry of Textiles had stated that PTA and MEG (Mono ethylene glycol), the key ingredients of PSF and PFY, constitute about 80% of the value of the product. It was requested that ADD on PTA be discontinued as it is making the raw material expensive for downstream industry, thus choking its growth. It was further informed that an Inter-ministerial Group (IMG) under CEO, NITI Aayog had been set up in pursuance to the decisions taken on "Measures for boosting exports from the Textile sector". This IMG included. NITI Aayog, the Department of Commerce and the Ministry of Textiles.

14. In furtherance of the same, in its Budget 2020-21 proposals in December, 2019, the administrative Ministry again requested that ADD on PTA be revoked in the overall interest of promoting growth of the man-made fibre (MMF) textile industry. It was informed that imposition of ADD has made textile products (yarn, fabric, garments) uncompetitive when compared to availability at international price. It was stated that cessation of duty would positively impact the downstream segments of the textile value chain (spinning weaving garments) which are currently having low capacity utilization of 60-65%. reportedly due to non-availability of PTA. It was mentioned that revocation of ADD on PTA will unshackle the man- made fibre (MMF) value chain and enable it to realize a greater share in world MMF apparel market and generate new jobs and employment in the sector.

15. I say and submit that the Ministry of Textiles is the nodal Ministry responsible for development of Textile Industry in India and it engages and consults the industry widely. The proposal of the Ministry of Textile based on their own analysis of the sector was naturally an outcome of these industry, wide consultations. Meanwhile, in its report forwarded to this Ministry in January, 2020, the IMG also suggested revocation of Anti- dumping duty on PTA as way forward to give a fillip to the domestic MMF industry. The IMG report mentions that while the capacity utilization of PTA producers is around 90%, that of user industry (spinning) is merely 65%. The raw material is available at high cost for downstream (fibre) manufacturers. The IMG report also stated that as compared to investment of Rs. 25.000 or by PTA manufacturers which are employing about 6000 persons, the total downstream industry (fibre, spinning fabric, garmenting) has made investment of Rs. 4,02,500 er and employs about 15 million people. While making this recommendation for revocation of ADD on PTA, IMG took into account all relevant factors.

It is further stated that the annual Budget exercise, of which the decision to revoke ADD in this case was a part, entails very wide consultative process wherein inputs are taken from a very large number of stake holders. These consultations are held with the Ministries concerned, trade and industry associations, economists. Any decision in the budget process is taken after due consideration of inputs, suggestions, recommendations received in this wide consultation process and extensive deliberations. It is dear that there is wide consultation in any decision taken in the budget process, and accordingly, it is humbly submitted that there was a wide consultation mechanism behind the considered decision to revoke ADD on PTA, which was taken after due deliberations. The same therefore cannot be termed as 'arbitrary.

16. I say and submit that the domestic industry, which is made up of units in the organized sector with large investments in plant and machinery, had enjoyed the benefit of ADD on the imports of PTA for a very long period. Further, petitioner No. 1 enjoys a dominant position in the domestic production of PTA and is a major player in PTA in the international market. The consultation and examination, as above revealed that the protection given to the domestic PTA industry has led to serious hardship to the downstream industry while PTA manufacturer, particularly the petitioner, grew to a dominant position. Ministry of Textiles, the IMG and also wider consultation during the budget exercise led the Central Government to conclude that continuation of ADD on PTA was not in public interest and it has impacted adversely a huge segment of domestic PTA down-stream user industry, most of which comprised Medium, Small and Micro enterprises (MSME), particularly the industry engaged in fabric and garment manufacture. Also, as analyzed by the IMG, and the Ministry of Textiles, removal of ADD on PTA was necessary to unshackle the full potential of the downstream value chain.

While continuation of ADD would have benefited only a very few large players like the petitioner (who, in any case, have enjoyed a position of dominance as beneficiaries of ADD levy for a major part of the last 23 years, its removal had the potential to generate employment for millions of people. Under the circumstances, the balance of public interest clearly was in revocation of ADD on PTA

17. It is also submitted that petitioner has incorrectly argued that the revocation of ADD on PTA is contrary to the objective of Atmanirbhar Bharat set by the Hon'ble Prime Minister. The downstream user industry contributes to higher value addition, production, investment and employment, clearly reflected in the inputs received from the administrative Ministry and the IMG headed by NITI Ayog.

Therefore, contrary to the petitioner's argument, the revocation of ADD on critical input like ITA supports domestic production of value-added downstream goods, and furthers the objectives of Atmanirbhar Bharat.

18. I say and submit that taking into account all relevant factors it was decided, as part of Budget exercise, 2020-21, to revoke the anti-dumping duty on the import of PTA, including its variants MTA and QTA, imposed vide notification No. 28/2016-Customs (ADD) dated 05.07.2016 and notification No. 28/2019- Customs(ADD) dated 24.07.2019, in public interest, as recommended by the IMG and the administrative Ministry.

The Finance Minister in her budget speech for 2020-21 in Parliament, stated as follows-

"...143. Chemicals are crucial feed stocks for downstream users. PTA, for example, is a critical input for textile fibres and yarns. Its easy availability at competitive prices is desirable to unlock immense potential in textile sector which is a significant employment generator. Therefore, in the larger public interest, anti-dumping duty on PTA is being abolished..."

19. Accordingly, the anti-dumping duty on PTA was revoked in larger public interest, vide notification No. 3/2020-Cus (ADD), dated the 2nd February, 2020."

71. Referring to above averments, it was submitted that the Central Government has taken decision to revoke ADD on the subject goods to be imported from subject countries which is also reflected from the budget speech of the Finance Minister for financial year 2020-2021 so as to boost the textile sector by making available the chemicals which are crucial for the users like manufactures, textile fibers and yarn at competitive prices.

72. Learned advocate Mr. Shukla referring to section 9A(6) of the Act submitted that the Central Government is empowered to frame rules for the purpose of the said section without prejudice to the generality of the provisions contained therein to provide for the manner in which articles liable for anti-dumping duty under the said section may be identified and for the manner in which the export price and normal value and margin of dumping in relation to such articles may be determined and for assessment and collection of such anti-dumping duty. It was therefore, submitted that power of imposition of anti-dumping duty is to be exercised by the Central Government which has an absolute power and therefore, power of revocation of anti-dumping duty imposed by the Central Government is inherent in the power of imposition of levy.

73. Learned advocate Mr. Shukla vehemently submitted that section 9A(5) of the Act prescribes that anti-dumping duty imposed under section 9A of the Act shall cease to have effect on the expiry of five years unless revoked earlier means the Act provides for early revocation of anti- dumping duty by the Central Government and therefore, power to impose ADD includes power to revoke it also which is unfettered and the Act does not impose restrictions on its exercise. It was submitted that imposition of ADD or continuation of ADD cannot be demanded by the domestic industry as a matter of legal right as ADD is only a mechanism meant to provide relief to domestic industry against dumping and injury resulting therefrom. It was submitted that it is for the Central Government to take a decision in discharge of its sovereign function, taking all relevant factors, constituting the public interest, whether or not to impose or continue an existing ADD through consultative process within the Government. It was therefore, submitted that the legality of the action of Government in supervening public interest, specifically in taxation matter has been upheld by the Apex Court in number of judicial pronouncements as under :

"In its judgment dated 15 December, 1997 in the matter of Sales Tax Officer and Anr. Versus M/s. Shree Durga Oil Mills &Anr, the Hon'ble Supreme Court stated that-

"Moreover withdrawal of notification was done in public interest. The Court will not interfere with any action taken by the Government in public interest. Public interest must override any consideration of private loss or gain."

Earlier, in its judgment dated 18th October, 1994 in the matter of Kasinka Trading & Anr. Vs Union of India &Anr., the Hon'ble Supreme Court had stated in paragraph-24 that-

Where the Government on the basis of the material available before it bonafide, is satisfied that the "public interest" would be served by either granting exemption or by withdrawing, modifying or rescinding an exemption already granted, it should be allowed a free hand to do so.."

In a Judgment as recent as 22 April, 2020, in the matter of Union of India &Anr. Vs M/s. V.V.F. Limited &Anr, the Apex Court had again referred to both the above judgments while deciding the matter at hand.

In the matter of Alembic Limited vs Union of India, this Court had held in para 36 and 37-that-

"... As noted earlier, task of DA is limited of ascertainment of various factors such as factum of dumping if at all, ascertainment of extent of dumping, injury to the domestic market and amount of dumping duty in his opinion would eliminate injury. These are issues which necessarily would be governed by material that may be brought on record and ascertainment of relevant factors on basis of facts presented. DA while examining these issues would not be involved in ascertaining other consequences of imposition or otherwise of Anti-dumping duty. It is necessarily the task of the Central Government to ascertain such factors and to come to conclusion whether despite such recommendations. Anti-dumping duty should be imposed or not.

37.When such issues of great complexities are involved, Courts have always shown restrain and permitted greater latitude to the Executive in implementation of its policies, particularly, in fiscal and economic areas, In case of Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited and another reported in (2011) 1 Supreme Court Cases 640, decision of the Central Government by which Sugar Industry was de-licensed under the Industries(Development and Regulation) Act. 1951 came up for consideration before the Apex Court. Examining challenge to the judgement of the High Court quashing such an order of the Government, the Apex Court observed that it is settled law that in areas of economics and commerce, there is far greater latitude available to the executive than other matters. Court cannot sit in judgment over the wisdom of policy of the Legislature or the executive."

74. It was therefore, submitted that reliance placed by the petitioner on decision of this Court in case of Realstrips Limited and others (supra) would not be applicable in facts of the case, as the Central Government after considering the various factors as enumerated in affidavit in reply filed on behalf of respondent No. 3 - Ministry of textile, the Central Government has taken a conscious decision to revoke ADD on subject goods which are stated in paragraph no.6 of the reply as under:

"6. Without prejudice to the afore referred preliminary contention, following factual matrix of the matter as well as provision of law, would go to show that the petitioner is not entitled to any relief whatsoever claimed in the petition.

A. Share of MMF in world textiles fibre consumption has been increasing steadily over the years. The global consumption pattern is in favour of synthetics (polyester, rayon, acrylic) and blends. In contrast with the global consumption pattern, in India, the domestic market has been dominated by cotton with MMF having a smaller share.

B. Based on a meeting chaired by Principal Secretary to PM on "Measures for boosting exports from the Textile Sector' on 26.7.2019, it was decided that a note on issues to be addressed was formulated and forwarded to the Internal Ministerial Group (IMG) by Ministry of Textiles. This issue was discussed during the Inter- Ministerial Group (IMG), constituted by PMO, comprising of (i) CEO, NITI Aayog, Chairman (ii) Secretary, D/o Commerce (iii) Secretary, Ministry of Textiles and (iv) Trade Adviser, Ministry of Textiles. The IMG deliberated upon this issue along with other issues in depth. Based on its deliberations, a final report on "Unleashing Potential of Man-made Value Chain' was prepared and was forwarded to Department of Revenue and PMO by NITI Aayog. One of the Chapters wherein issue was deliberated was Chapter-3 "Raw Material Constraints: Challenges in PTA production, Availability & Taxation Including Imposition of Anti-Dumping Duty". The feedstock derived from crude oil and natural gas leads to first generation building blocks viz. Ethylene, Para-xylene (PX) etc. which are used in the manufacture of fibre intermediates such as Purified Terephthalic Acid (PTA) required in the production of synthetic yarn / fibre.

C. Share of MMF in world textiles fibre consumption has been increasing steadily over the years. Out of global apparel exports of USD 482bn, MMF apparel has a share of 36% (USD 172 bn) as per said report. India's share in this market is a meager 2% (USD 3.7 bn). Global apparel exports witnessed a CAGR growth of 2.8% in last five years, whereas in case of India, CAGR growth of MMF apparel has been (-)0.5%.

D. In India, the domestic market has been dominated by cotton through the 2000s, with a share greater than 55%. In contrast with global consumption pattern which is in favour of synthetics (polyester, yarn, acrylic), with MMF apparel having a share of 36% and blends 21% in India, the consumption pattern has been lower with MMF. To cater to domestic and overseas textiles markets India's MMF base needs to grow. To enable the textile sector to grow from its current market size of USD 110mn to about USD 200 bn by 2025, fibre production in the country must grow from current level of 8 billion kg to about 16 billion kg. This growth has to come largely from the MMF segment since cotton has a limited capacity to grow given various constraints. The world production of PSF and PFY is estimated at 55.04 mn tons. Share of China is 71% (38.93 mn tons) and that of India, the second largest producer, 7% (3.9 mn tons). Share of PSF in MMF production in India is 53% and in global fibre production (69,400 mn kg), 25%.

E. R-2 i.e. Directorate General of Trade Remedies (DGTR) initiated a Sun-set review investigation to examine the need for continuing the existing anti-dumping duty on PTA originating in or exported from China PR, EU, Korea RP and Thailand. This was based on a petition filed by two Petitioners, domestic manufacturers of PTA i.e. M/s. Reliance Industries Ltd. and M/s. MCPI Pvt. Ltd. for continuing the duty. The third producer of PTA in India, namely Indian Oil Corporation Ltd. neither supported nor opposed the applications. M/s. PTA Users Association requested that the anti-dumping duty on PTA be revoked in the overall interest of promoting the growth of the MMF textile industry.

F. To enable the textile sector to grow from its current market size, man-made fibre manufacturing base in India needs to be grown. Polyester Staple Fibre (PSF) and Polyester Filament Yarn (PFY) are the raw materials for the MMF textile value chain and Purified Terephthalic Acid or PTA is a key ingredient in the manufacture of PSF. As PTA is produced by limited number of producers in the country, it is presently being imported by textile MMF manufacturers. Imports of PTA until now were subjected to Anti- Dumping Duty (ADD) from various countries, viz., South Korea, Thailand, China etc. which was increasing the cost of MMF fibre/ filaments in the country thereby eroding the cost competitiveness of the MMF textile industry in global markets. PTA manufacturers enjoyed the benefit of anti- dumping on PTA for a good part of the last 23 years. The ADD on import of PTA was initially imposed vide Notification No. 85/97- Customs dated 21.11.1997, and has been levied for major part of the period since then in one form or the other on import of PTA from different exporters and countries. Protection by way of ADD to a particular company should not be provided for such a long period at the cost of other growing users industry which employs huge number of peoples.

G. Impact on job creation in the Textile Value Chain As per annual survey of Industries (2016-17) and National Industrial Classification group for Textiles (NIC 13) and Apparel (14), labour intensity measures in terms of job per unit of investment (per crore) for textiles is approx. 10 persons and for apparel is 40.7. No segregated data is available for MMF except for fibre where labour intensity is 3.24 persons per crore of investment.

H. PTA Users Association represented to this Ministry for revocation of ADD on PTA for the overall interest of promoting growth of MMF textile industry. PTA manufacturers enjoyed the benefit of anti- dumping on PTA for a good part of the last 23 years. The ADD on import of PTA was initially imposed vide Notification No. 85/97-Customs dated 21.11.1997, and has been levied for major part of the period since then in one form or the other on import of PTA from different exporters and countries. Protection by way of ADD to a particular company should not be provided for such a long period at the cost of other growing users industry which employs huge number of peoples. Therefore, in the larger public interest and based on the representation from textile industry, Ministry of Textiles recommended, vide communication dated 20.12.2019, for abolition of anti-dumping duty on PTA.

I. Announcement in Union Budget 2020-21 In the Union Budget 2020- 21, it was recognized that "Chemicals are crucial feed stocks for downstream users. PTA, for example, is a critical input for textile fibres and yarn. It's easy availability at competitive prices is desirable to unlock immense potential in textile sector which is a significant employment generator. Therefore, in the larger public interest, anti- dumping duty on PTA has been abolished."

J. Implications for Textile Sector: Removal of ADD on PTA will lead to an estimated cost saving for PTA users depending upon the country of origin. MMF manufacturers will now be able to procure raw material at globally competitive prices and in turn provide Man- Made Fibre/Filament to downstream industry at competitive prices. PTA manufacturers enjoyed the benefit of anti-dumping on PTA for a good part of the last 23 years. The ADD on import of PTA was initially imposed vide notification No. 85/97- Customs dated 21.11.1997, and has been levied for major part of the period since then in one form or the other on import of PTA from different exporters and countries. Protection by way of ADD to a particular company should not be provided for such a long period at the cost of other growing users industry which employs huge number of peoples.

K. The prices since revocation of ADD on PTA have shown downward trends after removal of ADD on PTA i.e. from 2.2.2020 as informed by PTA Users Association as given below:

Month	Net PTA price in Rupees/KG	Net Filament Price        in Rupees/KG
January, 2020	52	63
February, 2020	51	62
March	46	58
April	45	56
May	43	56
June	39	55
July	38	51
August	38	50

L. Reduction in price of raw material will lead to availability of fibre/filament/yarn to the downstream industry, viz., spinning and weaving industry at globally competitive price. Revocation of ADD on PTA will make downstream products competitive and boost exports of value added MMF textile products enabling the MMF sector to realize a greater share in world MMF apparel markets. Increase in manufacturing and exports are expected to generate new jobs and employment in the sector. Decision of Government to abolish ADD on PTA was well appreciated by textile industry."

75. Referring to above factors which are taken into consideration for revocation of ADD, it was submitted that the capacity utilisation of petitioner and other manufacturers of the subject goods is 90% and capacity expansions are being planned only by IOCL and JBL and the petitioner dominates this monopolistic market with 70% share in production out of which 60% is internally consumed and therefore, there is a need for augmentation of production capacity of PTA and according to PTA Users Association, PTA industries operates at a margin of 15% and PTA players are earning around USD200-225/ton.

76. It was submitted that PTA manufacturers enjoyed the benefit of anti- dumping on PTA for a good part of the last 23 years. The ADD on import of PTA was initially imposed vide Notification No. 85/97- Customs dated 21.11.1997, and has been levied for major part of the period since then in one form or the other on import of PTA from different exporters and countries. It was further submitted that protection by way of ADD to a particular company should not be provided for such a long period at the cost of other growing users industry which employs huge number of peoples. If the petitioner is not able to sustain even after enjoying the benefit of anti-dumping duty on PTA at the cost of other user industry for such a long period, then introspection by the company is in order and warranted. It was submitted that the Government cannot allow ADD for indefinite period, keeping in view the larger public interest. The raw material was available at high cost for downstream (fibres) manufacturers. It was further submitted that as compared with international (FOB) price of Rs. 47.6/kg, the domestic price of PTA is Rs. 57.9/kg (BCD 5%, Cess on BCD 4% and avg. ADD Rs. 3.7/kg).

77. It was therefore, submitted that a comparison with User Industry (Spinners and downstream segment) reveals that as compared to investment of Rs. 25,000 crore by PTA manufacturers, total downstream industry (fibre, spinning, fabric, garmenting) has made far greater investments valued at Rs. 4,02,500 crore. As regards employment, the PTA manufacturers have an employment of only 6,000 persons as contrasted with 15 mn people employed by the user industry. Capacity of PTA producers is 90% as opposed to 65% of the user industry (spinning) and their margins are 15% as opposed to declining margins of the spinning segment.

78. It was further submitted that ADD on PTA varies from USD 23.61/MT to USD 78.28/MT or Rs. 1.6/kg to Rs. 5.5/kg (Korea RP and Thailand). The sun-set review has been carried out for two countries namely, Thailand (USD45.43/MT to USD 62.55/MT) and Korea (USD 23.61 to USD 78.28) and impact analysis of anti-dumping duty on PTA by considering duties from source of maximum imports i.e., Korea and Thailand shows that impact of ADD on Polyester fabric was approx Rs. 0.15/sq mtr to Rs. 0.49/sq mtr.

79. Learned advocate Mr. Shukla referred to the documents placed on record along with affidavit in reply filed on behalf of respondent no.3 to point out that various associations have made representations for not imposing ADD and considering the benefits enjoyed by the PTA manufacturers for last 23 years since 1997, it was opined that protection by way of ADD to a particular sector should not be provided for such a long period at the cost of other growing users industry which employs huge number of people. In support of his submissions, reliance was placed on the following decisions:

1) In case of Alembic Ltd. v. Union of India reported in 2013 (291) ELT 327 (Guj.)

2) In case of Union of India and another v. Kumho Petrochemicals Company Limited and another reported in (2017) 8 Supreme Court Cases 307.

3) Decision of Division Bench of this Court in case of Prashanti Medical Services and Research Foundation v. Union of India and others (Judgment dated 14.09.2019 passed in Special Civil Application No. 7558 of 2017).

4) In case of Union of India and another etc. v. V.V.F. Limited and another etc. reported in 2020 SCC OnLine SC 378.

5) In case of Kasinka Trading and another v. Union of India and another reported in (1995) 1 Supreme Court Cases 274.

6) In case of Sales Tax Officer and another v. Shree Durga Oil Mills and another reported in (1998) 1 Supreme Court Cases 572.

80. In rejoinder, learned Senior Advocate Mr. Mihir Joshi submitted that contention raised on behalf of the respondents that ADD on PTA is in force for last 23 years is not true and correct as the provisional ADD was imposed vide Customs Notification No. 85/97 dated 21st November, 1997 and final ADD vide Customs Notification No. 13/98 dated 28th April, 1998. However, the same was withdrawn vide final finding dated 06/05/2023 in sunset review investigation.

81. It was submitted that vide Notification No. 82/2000-Customs dated 30th May, 2000, ADD had been imposed against Spain only for a period of five years and thereafter the provisional duty was imposed vide notification No. 36/2014- Customs (ADD) dated July 25, 2014 and final ADD vide Notification No. 23/2015 - Customs (ADD) dated May 27, 2015 on imports from Korea RP and Thailand and thereafter, ADD was imposed upon the subject countries in 2016 provisionally and finally since 2019. Therefore, the contention that ADD has been levied since 1997 for major part of period since then in one or other form is factually not correct and respondent no.3 is trying to mislead this Court.

82. It was submitted that ADD is imposed to offset any unfair price discrimination by the exporters and the purpose of anti- dumping duty is not to protect the domestic industry, but to correct price distortion and establish fair play. Therefore, anti-dumping duty may continue as long as there is continued dumping, or likelihood of dumping and consequent injury to the domestic industry. It was pointed out that in the facts of the present case, anti-dumping duties were imposed only when it is found by DA that the exporters were indulging in unfair and uncompetitive pricing policy of dumping the product, which was injurious to the domestic industry in India.

83. It was therefore, submitted that Central Government could not have revoked ADD without initiating sunset review more particularly, in view of decision of this Court in case of Realstrips Limited and others (supra).

84. It was submitted that respondent no.3 has without considering the real situation of textile sector and the factors responsible for its growth, ignored the publicly available facts that the downstream industry in fact grew handsomely and their profits by and large increased with ADD remaining in force as the quantum of ADD is not more than the dumping margin itself establishes that PTA is available at similar or higher prices in the exporting countries and there is no documented basis with the Central Government that ADD has locked potential in textile sector particularly, when India is self-sufficient in manufacturing PTA and the quantum of ADD was restricted to an amount considered necessary.

85. It was therefore, submitted that removal of ADD on PTA will lead to an estimated cost saving for PTA users, allowing MMF manufacturers to obtain raw material at globally competitive prices and boost exports is without any basis and factually incorrect, more particularly, when claim of increase in manufacturing and exports and generation of new jobs in the sector is not correct and there is no casual link between the imposition of duties and the adverse effects on the MMF manufacturers as MMF manufacturers are not directly using PTA but is used by the manufacturers of PSF and POY which are enjoying increasing profits.

86. It was submitted that the contention that the PTA Users Association made representations before the Ministry of Textile that prices of PTA have recorded a downward steam since 02.02.2020 clearly shows that respondent no.3 has only considered one side statement provided by the PTA User Association without considering all the facts as the price of the product under consideration has declined even during the life of the duty wherein price had reduced from Rs. 57,088 per MT in 2014-2015 to Rs. 49,581 per MT in 2017-2018, because price of PTA is linked to the prices of crude. It was therefore, submitted that without considering the factors for reduction in prices which has no relation with the imposition of ADD, respondent no.3 has failed to appreciate the proven fact that PTA producers in the other countries are engaged in dumping of the subject goods as a result of which the imports are entering in the Indian market at injurious and unfair prices.

87. Having heard the learned advocates for the respective parties and considering the facts emerging from the record, the issue raised in this petition with regard to revocation of ADD on subject goods during the five years without initiating sunset review is no more res integra in view of decision of this Court in similar facts in case of Realstrips Limited and others (supra), wherein in case of levy of countervailing duty under the Act having pari-materia provisions for levy of ADD, this Court after considering the case laws cited by both the sides answered the question that rescinding the notifications of levy of countervailing duty was irregular and illegal exercise and such notification rescinding the countervailing duty could not have been issued when the exercise in law is required to be undertaken pursuant to the commencement of process of sunset review not completed in that case, whereas in the facts of the case, sunset review was never initiated.

88. It would therefore, be necessary to refer to decision of Realstrips Limited and others (supra) wherein following questions were considered by the Court:

"(i) Whether in the midst of Sunset review investigation in respect of continuance of countervailing duty, already initiated and kept undecided, during the currency of the period of original Notification imposing such duty, was it open to the Central Government to straightway issue the Notification rescinding the countervailing duty;

(ii) Was it on part of the Central Government to issue such Notification in absence of any recommendatory exercise or recommendation by the designated authority, and without waiting for such recommendation;

(iii) Whether it was obligatory on part of the Central Government to act and issue Notification rescinding the countervailing duty only after the recommendatory procedure laid down and the exercise contemplated in Sub section (6) of Section 9 of the Customs Tariff Act, 1975 read with Rule 24 of Customs Tariff (Identification, Assessment and Collection of countervailing duty on Subsidized Articles and for Determination of Injury) Rules, 1995, are followed;

(iv) What is the import and purport of the words 'unless revoked earlier' occurring in sub- section (5) of section 9 of the Act.

(v) Whether the ingredients 'continuation or recurrence of subsidization' and 'injury' are required to be determined and established apriori in review as per the First Proviso to sub- section (5) of section 9 of the Act and establishing such aspects is a condition precedent for issuance of the Notification of rescinding the countervailing duty by the Central Government"

89. This Court thereafter held as under:

"3.2 The countervailing duty or Anti-Dumping Duty is a trade remedy. These are the duties quite different in their nature and purpose of imposition, not similar to the levy of customs duty or other taxes. The countervailing duty is levied on a product, which may be imported to this country to which the exporting country extends artificial subsidies, to push the product into Indian market, which may ultimately lead to detriment to the domestic industry with adverse effect in general on the economy. Whereas, anti-dumping duty is imposed upon the imported products when the exporting country dumps such products in the Indian market at a lower price to the detriment to the domestic industry.

Recognised by GATT, 1994

3.3 India is a signatory to agreement on Implementation of Article VI of the General Agreement On Tariffs And Trade 1994, known as GATT Agreement. Under this agreement, the member countries have agreed to abide by the set of Rules relating to type of subsidies, which are permissible as per the Agreement of Subsidies and Countervailing Measures ('ASCM').

3.3.1 The Supreme Court in S & S Enterprise Vs. Designated Authority [2005 185 ELT 375 (SC)] observed in relation to the anti-dumping duty thus, which would also apply to countervailing duty,

"..The imposition of dumping duty is under Section 9A of the Customs Tariff Act 1975 and the Rules and is the outcome of the General Agreement on Tariff and Trade (GATT) to which India is a party. 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. The levy of dumping duty is a method recognized by GATT which seeks to remedy the injury and at the same time balances 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', is (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."

3.3.2 In Union of India Vs. Kumho Petrochemicals Co. Ltd. [ (2017) 351 ELT 65 (SC)], the Supreme Court stated, 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 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. (para 39)

Based on GATT & ASCM

3.4 The group of Articles in Part V captioned as 'Countervailing Measures' in the agreement on Subsidies and Countervailing Measures(ASCM) may be noticed with relevance. Article 10 is about application of Article VI of GATT, 1994. It says that the members shall take necessary steps to ensure that the imposition of countervailing duty on any product of the territory of any Member imported into the territory of another Member is in accordance with Article VI of the GATT and the terms of the agreement-ASCM. It is stated that countervailing duty may only be imposed pursuant to investigation initiated and concluded in accordance with the provisions of the Agreement.

3.4.1 Article 11 of ASCM is in relation to initiation and subsequent investigation. Articles 12 and 13 are about evidence and consultations; Article 14 deals with the calculation of amount of subsidy in terms of benefit to recipient. Article 15 of the ASCM mentions about the determination of injury. Article 15.1 says that determination of injury for the purpose of Article VI of GATT shall be based on positive evidence and involving objections, examining (a) The volume of subsidies, imports and effect of subsidies, imports on the prices in the domestic market for like products; (b) The consequent impact of this imports on domestic industry on such products.

3.4.2 Article 15 is regarding determination or injury, Articles 15.7 says that determination of threat of material injury shall be based on facts and not merely on allegations of remote possibility or conjecture. It outlines the factors which the investigating authorities may consider to determine the injury, which may be imminent and clearly forceable judging by the factors (i) nature of the subsidy or subsidies in question and the trade effects likely to arise therefrom; (ii) a significant rate of increase of subsidized imports into the domestic market indicating the likelihood of substantially increased importation; (iii) sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased subsidized exports to the importing Member's market, taking into account the availability of other export markets to absorb any additional exports; (iv) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and (v) inventories of the product being investigated.

3.4.3 Article 19 speaks about imposition and collection of countervailing duty. The countervailing duty may be imposed upon determination of the existence an amount of subsidy, its effect and upon investigation and deciding about the causal effect of injury on the domestic market. Article 21 is relevant, as it mentions about the duration and review of countervailing duty and undertakings.

3.4.4 The Article 21 of ASCM is reproduced,

Duration and Review of Countervailing Duties and Undertakings

21.1 A countervailing duty shall remain in force only as long as and to the extent necessary to counteract subsidization which is causing injury.

21.2 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 countervailing 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 subsidization, 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 countervailing duty is no longer warranted, it shall be terminated immediately.

21.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive countervailing 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 subsidization and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of subsidization and injury. The duty may remain in force pending the outcome of such a review.

21.4 The provisions of Article 12 regarding evidence and procedure shall apply to any review carried out under this Article. Any such review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review.

21.5 The provisions of this Article shall apply mutatis mutandis to undertakings accepted under Article 18. Statutory provisions

3.5 The Central Government legislated on the lines of aforementioned international agreement. Section 9 and section 9-A in the Customs Tariff Act, 1975 came to be enacted and the rules regarding imposition of countervailing duty and anti- dumping duty came to be framed.

3.5.1 Section 9 of the Act is in respect of countervailing duty on subsidised articles. The entire provision is extracted hereinbelow.

"Countervailing Duty on Subsidized Articles.- (1) Where any country or territory pays, bestows, directly or indirectly, any subsidy upon the manufacture or production therein or the exportation therefrom of any article including any subsidy on transportation of such article, then, upon the importation of any such article into India, whether the same is imported directly from the country of manufacture, production or otherwise, and whether it is imported in the same condition as when exported from the country of manufacture or production or has been changed in condition by manufacture, production or otherwise, the Central Government may, by notification in the Official Gazette, impose a countervailing duty not exceeding the amount of such subsidy.

Explanation. - For the purposes of this section, a subsidy shall be deemed to exist if-
(a).....

(i)....

(ii).....

(iii).....

(iv)......

(b).......

(2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the amount of subsidy, impose a countervailing duty under this subsection not exceeding the amount of such subsidy as provisionally estimated by it and if such countervailing duty exceeds the subsidy as so determined, -

(a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such countervailing duty; and

(b) refund shall be made of so much of such countervailing duty which has been collected as is in excess of the countervailing duty as so reduced.

(3) Subject to any rules made by the Central Government, by notification in the Official Gazette, the countervailing duty under subsection (1) or sub-section (2) shall not be levied unless it is determined that -

(a) the subsidy relates to export performance;

(b) the subsidy relates to the use of domestic goods over imported goods in the export article; or

(c) the subsidy has been conferred on a limited number of persons engaged in the manufacture, production or export of articles;

(4) If the Central Government, is of the opinion that the injury to the domestic industry which is difficult to repair, is caused by massive imports in a relatively short period, of the article benefiting from subsidies paid or bestowed and where in order to preclude the recurrence of such injury, it is necessary to levy countervailing duty retrospectively, the Central Government may, by notification in the Official Gazette, levy countervailing duty from a date prior to the date of imposition of countervailing duty under subsection (2) but not beyond ninety days from the date of notification under that sub section and notwithstanding anything contained in any law for the time being in force, such duty shall be payable from the date as specified in the notification issued under this sub-section.

(5) The countervailing duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force.

(6) The countervailing 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 subsidization 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 countervailing duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.

(7) The amount of any such subsidy as referred to in sub- section (1) or subsection (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 identification of such article and for the assessment and collection of any countervailing duty imposed upon the importation thereof under this section.

(7A)The provisions of the Customs Act, 1962 (52 of 1962) and the 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.

(8) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament.

3.5.2 Section 9-B says that there shall be no levy under section 9 or 9A in certain cases. It reads as under,

"9-B No Levy under Section 9 or Section 9A in Certain Cases. - (1) Notwithstanding anything contained in section 9 or section 9A, -

(a) no article shall be subjected to both countervailing duty and anti- dumping duty to compensate for the same situation of dumping or export subsidization;

(b) the Central Government shall not levy any countervailing duty or antidumping duty -

(i) under section 9 or section 9A by reasons of exemption of such articles from duties or taxes borne by the like article when meant for consumption in the country of origin or exportation or by reasons of refund of such duties or taxes;

(ii) under sub-section (1) of each of these sections, on the import into India of any article from a member country of the World Trade Organisation or from a country with whom Government of India has a most favoured nation agreement (hereinafter referred as a specified country), unless in accordance with the rules made under sub- section (2) of this section, a determination has been made that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India; and

(iii) under sub-section (2) of each of these sections, on import into India of any article from the specified countries unless in accordance with the rules made under sub- section (2) of this section, a preliminary findings has been made of subsidy or dumping and consequent injury to domestic industry; and a further determination has also been made that a duty is necessary to prevent injury being caused during the investigation :

Provided that nothing contained in sub-clauses (ii) and (iii) of clause (b) shall apply if a countervailing duty or an anti-dumping duty has been imposed on any article to prevent injury or threat of an injury to the domestic industry of a third country exporting the like articles to India; (c) the Central Government may not levy -

(i) any countervailing duty under section 9, at any time, upon receipt of satisfactory voluntary undertakings from the Government of the exporting country or territory agreeing to eliminate or limit the subsidy or take other measures concerning its effect, or the exporter agreeing to revise the price of the article and if the Central Government is satisfied that the injurious effect of the subsidy is eliminated thereby;

(ii) any anti-dumping duty under section 9A, at any time, upon receipt of satisfactory voluntary undertaking from any exporter to revise its prices or to cease exports to the area in question at dumped price and if the Central Government is satisfied that the injurious effect of dumping is eliminated by such action.

(2) 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 any investigation may be made for the purposes of this section, the factors to which regard shall be at in any such investigation and for all matters connected with such investigation.

Working of the provisions

3.6 As per the provisions of section 9(1) of the Act, any country pays or bestows, either directly or indirectly any subsidy upon manufacturer or production or exportation therefrom, of any article, in such eventuality, upon the importation of such article into India, the Central Government may after inquiry, impose countervailing duty. This duty is not to exceed the amount of such subsidy. It is significant to notice that the imposition of countervailing duty is after an inquiry as contemplated.

3.6.1 As per sub-section(2), the Central Government may, pending the determination in accordance with the determination of the amount of subsidy, etc., in accordance with the provisions of sections and rules, may impose provisional countervailing duty. Provisional imposition of countervailing duty is also upon undertaking an inquiry. The provision contains procedural and substantive aspects to be followed by the authorities. As per section section (4), it is also open to the Central Government to levy countervailing duty retrospectively. As per sub- section (5), the countervailing duty under the provisions shall be in additional to any other duty.

3.6.2 As per Sub-section 9(6), countervailing duty shall cease to have effect on expiry of 5 years from the date of imposition, unless revoked earlier. The scope and manner in "unless revoked earlier" is the bone of contention in the present controversy.

3.6.3 Proviso to sub-section (6) of section 9 says that if the Central Government in review is of the opinion that the cessation of the duty is likely to lead to continuation or recurrence of subsidization and injury, the Central Government may extend the period of duty for further five years. Section provides that where the review initiated before the expiry of five years, which period is not over, before such expiry, the countervailing duty may continue to remain in force for further period not exceeding one year pending the outcome of such review.

Prevalent Rules

3.7 The Customs Tariff (Identification, Assessment and Collection of countervailing duty on Subsidised Articles and for Determination of Injury) Rules, 1995, came to be framed by the Central Government in exercise of powers conferred by subsection(7) of Section 9 and sub-section(2) of section 9B of the Customs Tariff Act, 1975.

3.7.1 Having a bird's eyeview of the rules and pinpointing the relevant, under Rule 3, the Central Government appoints designated authority which is respondent no.2 DGTR herein. Rule 4 deals with the duties of the designated authority, rule 5 is about the decision as to country of original and Rule 6 refers to initiation of investigation. Rule 7 contains the principles governing the investigation, Rules 8 and 9 are about confidential information and accuracy of information respectively, whereas Rule 10 is about investigation in the territory of the other specified countries, Rule 11 mentions about nature of subsidy and rule 12 states about calculation of the amount of countervailing duty.

3.7.2 Rule 13 refers to the determination of injury and Rule 14 mentions about designated authority to proceed satisfactorily with conduct of investigation and to record preliminary findings, Rule 15 is about levy of provisional duty and Rule 16 is termination of investigation, Rule 17 speaks of suspension or termination of investigation on acceptance of price undertaking. Rule 18 is about disclosure of information and Rule 19 states about final findings, Rule 20 is about levy of duty. Rule 21 is imposition of duty on non- discriminatory basis, Rule 22 is for commencement of duty, Rule 23 is refund of duty.

3.7.3 Rule 24 is about review and the same is quoted as is relevant,

"Review.- (1) Any countervailing duty imposed under section 9 of the Act shall remain in force so long as and to the extent necessary, to counteract subsidisation, which is causing injury.

(2) The designated authority shall review the need for the continued imposition of countervailing duty, where warranted, on its own initiative or upon request by any interested party who submits necessary information substantiating the need for such review, and a reasonable period of time has elapsed since the imposition of the definitive countervailing duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, when it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said countervailing duty is removed or varied and is therefore no longer warranted.

(3) Any definitive countervailing duty levied under the Act shall be effective for a period not exceeding five years from the date of its imposition. The designated authority may upon coming to a conclusion, on a review initiated before that period either on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to the expiry of that period, that the expiry of the said countervailing duty is likely to lead to continuation or recurrence of subsidisation and injury to the domestic industry, make recommendation for extending the period of such imposition in accordance with provisions of section 9 of the Act.

(4) Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review.

[Provided that notwithstanding anything contained in rule 19, such review shall be completed at least three months prior to expiry of the countervailing duty under review.

[(5) Subject to sub-rule (4), the provisions of rules 7,8,9,10,11,12,13,18,19,20,21 and 22 shall apply mutatis mutandis in case of review.:]"

3.7.4 It would be seen from the above Rules that the designated authority will undertake the process of investigation, shall thereupon, on ascertainment of continuance of subsidy and injury, domestic market to recommend the Central Government, if the recommendation is for withdrawal of duty, it would lead to revocation of the notification and withdrawal of duty. In the alternative, the Central Government may extend the duty for further period of five years.

3.7.5 It is noticeable that Rule 13 of the Rules mentions about determination of injury and for determining of injury, principle are set out to be taken into account by the designated authority.

3.7.6 Such principles listed at Annexure-I to the Rules contemplate extensive inquiry into different aspects, extracted below.

"(1) A determination of injury for purposes of rule 13 shall be based on positive evidence and involve an objective examination of both (a) the volume of the subsidized imports and the effect of the subsidized imports on prices in the domestic market for like products and (b) the consequent impact of these imports on the domestic producers of such products.

(2) With regard to the volume of the subsidized imports, the designated authority shall inter alia consider whether there has been a significant increase in subsidized imports, either in absolute terms or relative to production or consumption in India.

(3) With regard to the effect of the subsidized import on prices, the designated authority shall, consider whether there has been a significant price undercutting by the subsidized imports as compared with the price of a like article in India, or whether the effect of such imports is otherwise to depress prices to a significant degree or to prevent price increases, which otherwise would have occurred, to a significant degree.

(4) Where imports of a product from more than one country are simultaneously subject to countervailing duty investigations, the designated authority may cumulatively assess the effect of such imports only if it determines that (a) the amount of subsidization established in relation to the imports from each country is more than one percent ad valorem and the volume of imports from each country is not negligible and

(b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the like domestic product.

(5) The designated authority while examining the impact of the subsidized imports on the domestic industry shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in output, sales, market share, profits, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital investments and, in the case of agriculture, whether there has been an increased burden on government support programmes."

3.8 It would be seen that the contents of the relevant provisions of the Act and the Rules above are on the lines and conceptually match the different corresponding Articles in the agreement-ASCM on subsidy and countervailing measures.

3.8.1 Section 9 is with regard to countervailing duty on subsidised articles. Section 9-A is in respect of anti- dumping duty on dumped articles. Both are measures to protect the domestic "exported market force". Both sections contain similar provisions with similar import.

3.8.2 Therefore, whatever legal principles are enunciated by the courts in the context of the scheme of the provisions and the judgments are rendered in relation to the anti-dumping duty, and they would apply in their reasoning and ratio, mutatis mutandis to the countervailing duty.

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Obligation Emanating from Treaty

5.2 Prefacing the discussion on the aspects of law involved in the controversy and the application of provisions of the Act and the Rules, it has to be recollected that the provisions regarding countervailing duty, are based on the international treaty obligation. Therefore, the approach to the construction of the statutory provisions which have the origin from the treaty covenants has to be impugned with the treaty obligations.

5.2.1 The Supreme Court in Commissioner of Customs, Bangalore Vs. G.M. Exports and Ors. [(2016) 1 SCC 91] surveyed various decisions to summarise the following principles -

"23. A conspectus of the aforesaid authorities would lead to the following conclusions:

(1) Article 51(c) of the Constitution of India is a Directive Principle of State Policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail.

(2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the said treaty, it is a legitimate aid to the construction of the provisions of such statute that are vague or ambiguous to have recourse to the terms of the treaty to resolve such ambiguity in favour of a meaning that is consistent with the provisions of the treaty.

(3) In a situation where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them.

(4) In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the same sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations.

5.2.2 While applying the domestic legislation, which has originated with reference to the international treaty, the application of the provisions has to conform the principles agreed in the treaty. In G.M. Exports (supra), it was observed,

"48. We have already held that this would fly in the face of all the judgments referred to in paragraphs 15 to 22 hereinabove, and principles (3) and (4) of paragraph 23 of this judgment which speak of how domestic legislation must be construed when it is made in furtherance of an international treaty. In particular, in the facts of these cases, it would also ignore the effect of Article 18.4 of the WTO Agreement, which expressly states that all the signatory member nations have to make their laws "conform" to the provisions of the WTO Agreement, something which the Central Government itself states in its internet website which deals with the law of anti-dumping."

Attendant Aspects Canvassed

(a) Whether sovereign power exercised

6. Before analysing the scheme stemming from Section 9, in particular Section 9(6), 9(7) read with Section 9-B of the Act read with Rules, more particularly Rule 24 of the Rules, certain incidental aspects and submissions raised by both the sides may be dealt with.

6.1 On behalf of the respondent it was claimed that issuance of Notification dated 1.2.2022 rescinding the countervailing duty was in exercise of sovereign power by the Government. Thereby, it was sought to be suggested that once the sovereign power is exercised by the Central Government, the rescinding of the duty was justified, at whatever stage it was done.

6.1.1 The submissions were based on the misconception of sovereign power of the state and the attributes of sovereignty.

6.1.2 The concept of sovereignty is an all time assertion of authority by the nation country to the outside world. The concept of sovereignty is in its essence that the country is independent in its all actions, decisions, reactions and in taking its own stand as a nation before the outside world. It signifies that the State will have the final authority to make or enact laws of the governance in all spheres.

6.1.3 There would be no gainsaying that when the Parliament enacts laws, it exercises the sovereign power. The Customs Tariff Act, 1975 and the Rules of 1995 are themselves the product of a sovereign exercise by our Parliament. The authority of the provisions in the enactment not only binds the subjects it governs, but also binds the authorities functioning and playing role thereunder, including the Central Government. There cannot be any separate limb sovereign power exercise, distinct from the enactment and the rules and the functional mandate flowing therefrom. It would be paradoxical and unpalatable to claim that State could disregard the obligations flowing from provisions of particular law or Act to initiate and assert its sovereign power to breach them.

6.1.4 There cannot be separation of concept of sovereignty by the State to claim that in its sovereign power it could disregard and discard the mandates in the statute which is enacted by itself in exercise of such power, on the other hand to assert that there is an independent power in the nature of sovereign power to act de hors the governing statute. It is absurd to suggest that the State will disregard its own laws to act independent of legal requirements, thereby acting sovereign.

(b) No public interest in abstract

6.2 Emphasis was laid by learned Additional Solicitor General that the Notification in question rescinding the countervailing duty was issued in public interest. According to him various inputs were taken into account before issuing the Notification. There is a hollowness in the submission inasmuch as while no facts or details were given as to how the public interest is made to subserve, on the other hand the abstract plea and general concept of public interest would be irrelevant.

6.2.1 When the countervailing duty was imposed, it was by following the procedure in law, undertaking the investigation to determine the aspects of subsidy and injury as provided. This itself was an exercise in public interest. The case of the petitioner is that the Notification of the Central Government is in disregard to the compliance of procedure to be undertaken in law. Abiding by the provisions of law and following the statutory prescriptions is by themselves in public interest. The first step to subserve public interest is to follow the statutory mandates. Therefore the submission based on public interest is not well- conceived.

6.2.2 In any view, even as learned Additional Solicitor General harp on the public interest, not an iota of material was shown or relied on to substantiate as to what were the considerations relating to public interest.

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Scheme is Quasi-Judicial Process

7. A bare reading and even prima facie analysis of the provisions of Section 9, in particular subsection (6) and sub-section (7) thereof read with Rule 24 would go to show that the process of issuance of notification to impose the countervailing duty or to revoke the same is based on an inquiry. It is after investigation in respect of applicable factors relating to continuance or recurrence of subsidisation and the injury to the domestic industry, that the opinion will be formed. Only the ascertainment of such aspects after such inquiry about the subsidy etc., would be the basis for issuance of notification by the Central Government.

7.1 Section 9(6) read with Rule 24(2) makes it obligatory with the designated authority shall review the need for continued imposition of countervailing duty and recommend upon investigation to the Central Government for withdrawal of the duty when it comes to conclusion that the injury to the domestic industry is not likely to continue or recur if the said countervailing duty is removed for varied and is therefore no longer warranted. This exercise is the exercise in realm of quasi-judicial powers and the decision to be rendered also acquire the character of quasi- judicialness.

7.1.1 The inquiry involves going into the umpteen aspects of aspects relating to the market forces, subsidy from the exporting country, the resultant injury to the domestic industry, in which process the view of the stakeholders are also considered by extending them the opportunity. The contemplation of undertaking an inquiry along with other attendant aspects such as determination of injury and considering the objections etc., are the attributes making the whole process quasi-judicial in nature. Even when the review process was undertaken under sub-section (6) and (7) of section 9 of the Act, such inquiry is necessary before the recommendation is made by the designated authority and thereafter, which may end up notification by the Central Government.

7.1.2 The Supreme Court discussed the nature of quasi judicial exercise and about the quasi judicial function, in Indian National Congress Vs. Institute of Social Welfare [(2002) 5 SCC 658]. It was observed in para 24 that, "the legal principle as to when an act of statutory authority would be a quasi judicial act, is that where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of said authority is quasi-judicial."

7.1.3 The Apex Court in Indian National Congress (supra) was considering the question whether while exercising powers under Section 29A of the Representation of People Act, 1951, while registering a political party, the Election Commission exercises quasi judicial power or not. It was held that in view of the requirement under the provisions of Section 29A that the Commission is to give decision only after making an inquiry, the Commission acts quasi judicially and the decision rendered by it is a quasi judicial order.

7.1.4 The Supreme Court observed that what distinguishes an administrative act from a quasi judicial act is, in the case of quasi judicial function under the relevant law, the statutory authority is required to act judicially. In other words, the law requires that an authority before arriving at a decision, must make an inquiry, such a requirement of law makes the authority a quasi judicial authority. It was observed in light of that Section 29A (i) requires for making an application for registration as a political party, further requires as per its sub- sections (2) and (3) to provide the contents of the application and the further sub-section (7) enjoins the Commission to give reasonable opportunity to the representative of the Association or body while registering a political party or refusing the registration. In the scheme of countervailing duty, the investigation and inquiry is similarly envisaged.

7.1.5 The Court further held that in order to make the function quasi judicial and the decision quasi judicial, it is not necessary that there must exist a lis between the parties. It was observed thus

- "But there are cases where there is no lis or two contending parties before a statutory authority yet such a statutory authority has been held to be quasi-judicial and decision rendered by it as quasi judicial decision when such a statutory authority is required to act judicially. In Queen vs. Dublin Corporation (1878) 2 Ir. R. 371, it was held thus :

" In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts." (Para 27)

7.1.6 In the scheme of imposition etc., of countervailing duty, the investigation and inquiry is contemplated in the similar way. In Reliance Industries (supra), the Supreme Court in terms observed that the notifications regarding countervailing duty are quasi- judicial notifications.

Analysis and Judicial Decisions

7.2 Having finally noticed that the countervailing duty notifications under the Act are quasi-judicial exercise and that these notifications are amenable to appeal and the challenge, and are also subject to judicial review in the writ jurisdiction also, the essential aspects of the provisions concerning the controversy may be analysed, also with reference to the judicial decisions in that regard.

7.2.1 As noted above, the notification levying the countervailing duty once issued under Section 9(1) of the Act, has an expiry period from the date of imposition, unless revoked earlier. It also provides that respondent no.1 may extend the period further, if it is of the opinion that "the cessation of such duty is likely to lead to continuation or recurrence of subsidy and injury".

7.2.2 Two important pre- requisites are postulated by the first proviso of Section 9(6) of the Act. They are, (a) a review being conducted by respondent no.2, and (b) subsequent formation of an opinion by respondent no.1 on the basis of the review, that is, whether cessation of countervailing duty would lead to "continuation or recurrence of subsidisation and injury." These pre-requisites are required to be satisfied at the time of imposing as well as discontinuing the countervailing duty.

7.3 In Rishiroop Polymers Steel Ltd. Vs. Designated Authority and Additional Secretary[(2006) 4 SCC 303], the Supreme Court while indicating the scope of mid- term review in respect of anti-dumping duty under Section 9-A(5) & (6) stated about the parameters to be adopted and the nature of examination to be undertaken.

"...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 antidumping duty have altered to such an extent that there is no longer justification for continued imposition of the duty. The inquiry is limited 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 antidumping duty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffer." (para 36)

7.3.1 The Supreme Court proceeded to state and explain further,

"It is of vital importance to note that in the initial imposition of duty, the appellant has accepted the position that determination of injury by the Designated Authority was proper and in conformity with the requirements of Annexure-II of the Anti-Dumping Rules. The appellant did not challenge the final finding of the Designated Authority before the Tribunal that parameters mentioned in para (iv) of Annexure-II had not been considered or satisfied. We have declined the permission to the appellant to raise this point before us in Civil Appeal Nos. 773 and 774 of 2001 which were directed against the final findings recorded by the Designated Authority based on which the Government of India had imposed the antidumping duty for a period of five years. Under Section 9A(1), the said initial imposition of anti- dumping duty is ordinarily contemplated to be continued and remain in effect for a full period of five years, at the end of which it would be subject to Sunset review, the possible consequence of which would be the extension of the operation of the period of anti-dumping duty for another period of five years. This is subject to the provisions of sub-rule (1) of Rule 23 of the Anti-Dumping Rules, under which the Designated Authority is empowered to review the anti-dumping duty imposed from time to time. (para 37)

7.3.2 The followings observations are to be pertinently noticed,

"Having regard to the scheme of the above mentioned provisions of the statute, once anti- dumping duty has been initially imposed, it would be ordinarily continued for five years unless on a review it is found by the Designated Authority that there has been such a significant change in the facts and circumstances, that it is considered necessary either to withdraw or modify appropriately the anti-dumping duty which has been imposed.

It is, therefore, clear that unless the Designated Authority suo motu or the applicant for review is in a position to establish clearly that there has been a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the finding given by the Designated Authority at the time of initial imposition of anti-dumping duty must be considered to continue to hold the field." (para 37)

7.3.3 The Apex Court further observed that the final finding recorded by the designated authority at the time of initial imposition of anti-dumping duty on the existence of injury to the domestic industry must be considered to continue to remain valid, unless it is proved to be otherwise, either by the designated authority in suo motu review or by the applicant seeking review. In that case, the review was initiated by the designated authority. No record either placed by the applicant or with the designated authority to displace the findings given by the designated authority at the stage of levy of initial anti-dumping duty. The Court observed that when there was no material to show that there was a change in parameters or criteria relating to the injury, which would warrant withdrawal of anti-dumping duty, it was not open for the designated Authority to reanalyze the issue of injury.

7.4 In Kumho Petro Chemicals Company Limited Vs. Union of India [2014 (306) ELT 3 (Delhi)], the Delhi High Court held in relation to the anti- dumping duty that the procedural requirements included finding of causal link between dumping and inquiry to domestic inquiry. It was held that the injury is to be determined on objective examination of positive evidence of extent of dumping assessed through loss of market share of domestic inquiry in comparison to dump imports on the effective prices of said goods. In para 14 of the decision, the High Court delineated as to what was the comprehensive procedural requirements relating to investigation.

7.4.1 The aforementioned decision of the Delhi High Court was appealed against before the Supreme Court by the Union of India. The appeal failed as per the decision in Kumho Petrochemicals Co.Ltd. [ (2017) 351 ELT 65 (SC)]. Highlighting the Scheme, the Supreme Court stated that review exercises is necessary before expiry of 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 subsection (5) of Section 9A of of the Act empowers the Central Government to continue anti- dumping duty for a further period not exceeding one year, pending the outcome of such a review." (para 30)

7.4.2 The Supreme Court agreed with the High Court that the proviso to sub-section (5) of section 9-A of the Act is an enabling provision, which gives maximum life for five years to the imposition of anti-dumping duty by issuing a particular notification, which can of course be extended by issuing fresh notification.

7.4.3 However, the enabling power not to continue the anti-dumping duty/ countervailing duty available under the provision, would not obliterate the requirement for the Countervailing Authorities to disregard or overlook the statutory requirement of fulfilling condition to establish about the prejudicial effect to the domestic industry and the ingredients mentioned in the section such as continuation or recurrence of subsidisation and the resultant injury to the domestic industry. Establishing these elements are sine qua non even before withdrawal or rescindment of the duty under the scheme of the provisions.

Jurisdictional Aspects

7.5 In the scheme of the statutory provisions noticed as above, a recommendation from the designated authority- respondent no.2 herein. A recommendation from the respondent no.2 is a necessary jurisdictional pre-condition for the Ministry of Finance to either impose or modify or withdraw countervailing duty. Any proposition proposition that the Ministry of Finance can act in relation to countervailing duty, either imposition or withdraw, de hors the recommendation of the respondent no.1 cannot be accepted.

7.5.1 Firstly, it would be totally contrary to the applicable provisions of law. Secondly, it would create uncertainty in the administration of countervailing duty laws, inasmuch as the entire investigative, and evidentiary process prescribed under the countervailing duty laws before respondent no.2 designated authority would stand overwritten and discarded. Thirdly, it would result in a situation where the respondent no.1 will enjoy in a way carte blanche in levying and modifying the countervailing duty on the convenient generic grounds like public interest without recommendation by the designated authority in bypass of such statutory requirement.

7.5.2 It has to be held that as per the scheme of the Act read with the GATT and ASCN Agreement, the Central Government does not have any independent or inherent power to impose or modify or withdraw the countervailing duty in absence of, and without considering the recommendation in that regard from the Designated Authority. The determination and establishment of the jurisdictional ingredients about the continuation or recurrence of subsidy and injury to domestic industry, which are indispensable and inextricable elements for levy or revocation of the countervailing duty.

7.6 All the above are the essential operational considerations emanating from the statute provisions. Before the Central Government may issue any notification regarding levy of countervailing duty, the procedure prescribed under the Act and Rules regarding the recommendation to be arrived at by the designated authority, is mandatory. These requirements cannot be bypassed. The notifications regarding countervailing duties have to be based on the determination and establishment of ingredients namely 'likelihood of continuance or recurrence of subsidy' and 'injury' which would result for the domestic industry. These are the founding facts before the Central Government can act to issue the notification. These facts are to be established through statutory procedure contemplated in the provisions of the Act and the Rules, as explained above.

7.6.1 The recommendations of the designated authority would contain the findings on these facts and aspects. They are the jurisdictional facts. They are the foundations for the Central Government to take a decision and to issue the notification.

The jurisdictional facts cannot be bypassed.

7.6.2 The words 'unless revoked earlier' in section 9(6) of the Act cannot be viewed as denoting powers to the Central Government to revoke the notification of countervailing duty, which is operational, without complying with the requirement of recommendatory exercise. The revocation of the countervailing duty notification, even if to be resorted earlier, it must be preceded by ascertainment by the essential ingredients which are jurisdictional aspects and after having the recommendation of the designated authority in that regard.

7.7 In the present case, the Central Government acted without having with it recommendation of the Designated Authority in issuing the Notification rescinding the countervailing duty. The recommendation of the designated authority secured after statutory exercise and after going into the relevant considerations and criteria, was to be the source material for the Central Government to act. The Central Government acted without availability of foundational aspects and jurisdictional facts to proceed to issue the notification. Conferring such licence and power to act in such a way on the Central Government would be extending unfettered and arbitrary powers.

7.8 In Alembic Limited Vs. Union of India [2013 (291) E.L.T. 327 (Gujarat)] the Division Bench of this Court held that the recommendations of the designated authority are not binding on the Central Government. It may be true that the Central Government may have its own decision, after the recommendations of the designated authority are made available to it in accordance with the statutory procedure. It has to be observed however that it does not imply even remotely that the statutory exercised could be bypassed and Central Government can act without tabled before it the statutory recommendation from the designated authority, the process and procedure of which is sine qua non in the scheme of the countervailing laws. In Alembic (supra) the court also held that the powers of the Central Government in issuing the Anti-dumping notification are quasi judicial and the writ is maintainable.

7.9 It is settled principle as propounded long back in Nazir Ahmed Vs. King Emperor [ AIR 1936 PC 253] and universally followed in several judgments including Rao Shiv Bahadur Singh Vs. State of V.P [AIR 1954 SC 322], State of U.P Vs. Singhara Singh [AIR 1964 SC 358] and Shin- Etsu Chemical Company Limited Vs. Aksh Optifibre Limited and Another [2005:INSC:360 : (2005) 7 SCC 234], that where power is given in law to do a certain thing in certain way, the thing must be done in that way or not at all.

8. On behalf of the petitioners, learned senior counsel sought to submit that Section 21 of the General Clauses Act, under which power to issue notification would include power to rescind notification, would not apply and would not come to aid.

8.1 Section 21 of the General Clauses Act reads as under.-

"21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.-Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rule or bye-laws so issued."

8.2 The provision contemplates that wherever power is conferred to issue notification etc., such power would include the power to rescind the Notification as well. Such power, the provision says, is exercisable "in the like manner" and "subject to the like sanction and conditions (if any)". What was submitted by the learned counsel for the petitioner that when the countervailing duty was imposed by issuing notification dated 07.09.2017, the procedure was followed and the relevant consideration was gone into, therefore, even if the power to rescind is to be conceded to the Government, the rescission of the notification would have to be in the same manner and after satisfying the similar procedure and conditions.

8.3 The words "unless revoked earlier occurring in sub- section (6) in section 9 of the Act would have to be construed accordingly. The same procedure including making of inquiry and ascertaining the aspect injury to the domestic industry, will have to be read into before power to revoke is exercised. It would be reasonable to apply Section 21 by construing the words 'like manner' by equating them, for the purpose of present issue, with the procedure required under the statutory provisions of Customs Tariff Act, 1975 and relating to imposition of countervailing duty.

Answers to the Questions & Conclusion

9. In light of foregoing discussion and reasons, the answers to the questions, are as under,

(i) The issuance of Notification dated 01.02.2022 by the Central Government rescinding the countervailing duty imposed by the Notification dated 07.09.2017 was a irregular and illegal exercise. The Notification rescinding the countervailing duty could not have been issued when the exercise in law required to be undertaken pursuant to the commencement of the process of Sunset review not completed. The process of Sunset review investigation could not have been disregarded and it must be taken to its logical end in accordance with the procedure prescribed. Any Notification either for continuance, withdrawal or rescindment of the duty could have been issued by the Central government only thereafter.

(ii) It was not permissible for the Central Government to issue the Notification rescinding the countervailing duty in absence of any recommendatory exercise and without waiting for such recommendations of the designated authority in accordance with prescribed procedure. The Central Government has no power to issue Notification in the manner issued, in absence of any without waiting for the recommendation by the designated authority.

(iii) It is obligatory on part of the Central Government to act and issue Notification only after the procedure laid down and the exercise contemplated in sub-section(6) of Section 9 of the Customs Tariff Act, 1975 read with Rule 24 of the Customs Tariff (Identification, Assessment and Collection of Countervailing Duty on Subsidized Articles and for Determination of Injury) Rules, 1995.

(iv) The procedure and exercise contemplated in Section 9(6) and 9(7) of the Customs Tariff Act read with the relevant Rules could not be treated directory. Treating the exercise as per the provision to be directory would amount to negating the whole scheme of the countervailing duty laws and would mean negation thereof. The Central Government cannot treat the procedure in the Act and the Rules as optional on the spacious grounds.

(v) The determination that 'cessation of such duty is likely to lead to continuation or recurrence of subsidisation and injury' is sine qua non in the scheme of the provisions before notification to rescind the duty could be issued. The establishing the ingredient 'continuance or recurrence of subsidization' by the exporting counter, and 'injury to the domestic industry' are the founding facts, in the nature of jurisdictional facts.

10. The Supreme Court in Hari Krishna Mandir Trust Vs. State of Maharashtra and Others [(2020) 9 SCC 356] stated that the "High Court must issue a writ of mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority". It further observed,

"In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Directors of Settlements, Andhra Pradesh and Others v. M.R. Apparao and Anr.[(2002) 4 SCC 638], observed:

"...One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, "Mandamus" means a command. It differs form the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law." (para 102)

10.1 In Association of Synthetic Fibre Industry vs. J.K. Industries Ltd. & Ors. [(2005) 11 SCC 482], the Supreme Court observed,

"Needless to say, all these steps including the imposition of anti-dumping duty, in the event of the Central Government forming an opinion to do so, would be subject to the result of the writ petition pending in the High Court and the High Court does have power to grant an interim relief at any stage of the proceedings subject to a case in that regard being made out. That is what the law is. The decision of the Central Government in the matter of anti-dumping duty is appealable and also subject to writ jurisdiction on well- settled parameters of constitutional law." (para 8)

90. In view of above discussion, following directions were issued in the aforesaid matter:

"Directions

14. As a result of the above discussion and reasons, the present petition is allowed in terms of following order and directions,

(i) The Notification No. 1/2022- Customs (CVD) dated 01.02.2022 issued by respondent no.1 rescinding the countervailing duty is hereby quashed and set aside.

(ii) Respondent no.2 shall immediately proceed in respect of Sunset review process in relation to the continuance or otherwise of the countervailing duty already commenced as per Notification dated 08.10.2021.

(iii) The exercise of inquiry and investigation pursuant to Notification dated 08.10.2021, shall be completed in accordance with the statutory provisions and rules for determining about continuation or recurrence of subsidy and injury to domestic industry in respect of the product in question.

(iv) Respondent no.2 shall thereupon make necessary recommendations to respondent no.1. Thereafter it would be open for the respondent no.1 Central Government to take appropriate action and/or decision in accordance with law at its end.

(v) As the Notification dated 01.02.2022 is set aside, the original Notification dated 07.09.2017 shall revive and countervailing duty shall become leviable on the product in question.

(vi) The Sunset review initiated by Notification dated 08.10.2021 shall be completed in accordance with law.

(vii) Since the review process pursuant to Notification dated 08.10.2021 is underway, and is required to be completed by Respondent no.1- designated authority as per the directions No.(ii), (iii) and (vi) herein, in the interregnum, that is from the date of the Notification dated 01.02.2022, till the respondent no.1 takes appropriate decision in review, the levy of countervailing duty shall continue."

91. The contention raised on behalf of the respondents are considered by this Court in the aforesaid decision of Realstrips Limited and others (supra) in detail however, the specific contention raised by respondent no.3 in the affidavit in reply to justify the revocation of ADD on the subject products is concerned, the respondent no.3 has only narrated the factors which may be considered for taking a decision by the Central Government to revoke the ADD, however, as held by the aforesaid decision of Realstrips Limited and others (supra), the Central Government could not have issued the notification rescinding the ADD in absence of any recommendatory exercise conducted by the Designated Authority and without waiting for such recommendation of the Designated Authority in accordance with the prescribed procedure in the Rules. Therefore, the impugned notification issued by the Central Government is without power in the manner in which it is issued in absence of any recommendation by the Designated Authority.

92. Therefore, the procedure prescribed as per the provisions of the Act and the Rules could not be considered as directory as the same would reduce the entire scheme of levy of ADD as futile exercise to be carried out by treating such procedure as optional, more particularly, when the Designated Authority has recommended for continuation of ADD on the subject product and based upon such final recommendation, Notification No. 28/2019 dated 24th July, 2019 was issued by the Central Government for continuation of the ADD on the subject product to be imported from Thailand and Korea RP. So far as other subject countries are concerned, Notification No. 28/2016 was very much in existence for levy of ADD and the Designated Authority was required to conduct sunset review for making recommendation as to continue to levy ADD on the other subject countries such as China PR, Iran, Indonesia, Malaysia and Taiwan after completion of five years. The Central Government therefore, ought to have taken into consideration the requirement of revoking of ADD would not continue the recurrence of subsidisation and injury by dumping of the subject products in India so that the notification to rescind the duty could be issued. However, without considering any factors or elaborating upon the same, the impugned notification is issued giving a go-bye to the ingredient "continuance or recurrence of subsidisation" by exporting country and "injury to the domestic industry" which ought to have been the founding facts in the nature of jurisdictional facts to rescind the notification issued for levy of ADD on the subject products. Therefore, the decisions relied upon by the respondents would not apply to the facts of the present case which are similar to that of the facts of levy of countervailing duty in case of Realstrips Limited and others (supra).

93. As the facts of the present case are similar to the facts which were before the Court in case of Realstrips Limited and others (supra). Adopting the same reasonings and result of the discussion made therein, the present petition is allowed in terms of the following orders and directions:

(i) The Notification No. 3/2020- Customs (ADD) dated February 2, 2020 issued by respondent no.1 rescinding the anti-dumping duty on subject goods is hereby quashed and set aside.

(ii) Respondent no.2 shall immediately proceed to initiate Sunset review process in relation to the continuance or otherwise of the ADD already levied as per Notification No. 28/2019 - Customs(ADD) dated 24th July, 2019. So far as Notification No. 28/2016- Customs(ADD) dated 5th July, 2016, the period of five years is over during the pendency of this petition.

(iii) The provisions of the Act and the rules so far as sunset review in case of Notification No. 28/2019 - Customs(ADD) is concerned, same shall be complied with and completed in accordance with the statutory provisions and rules for determining about the continuation or recurrence of injury to domestic industry in respect of the product in question.

(iv) As the No. 3/2020-Customs (ADD) dated February 2, 2020 is set aside, the original Notification No. 28/2019 - Customs(ADD) dated 24th July, 2019 shall revive and ADD shall become leviable on the product in question.

(v) Respondent no.2 after initiation of sunset review shall comply with the Rules 23 and 24 of the Rules and shall recommend to the Central Government for its continuance or withdrawal of ADD on subject goods. Since the review process is yet to commence, respondent no.2 Designated Authority shall issue notification of initiation of sunset review and thereafter complete the same as per Rules 23(2) and (3) of the Rules. However, in the interregnum i.e. from the date of Notification No. 3/2020 dated February 2, 2020 till respondent no.2 takes appropriate decision after final findings notification is issued by the respondent no.1, levy of ADD shall continue on the subject goods till 19.07.2024.

94. Petition is disposed of accordingly. Rule is made absolute to the aforesaid extent. No order as to costs.

95. Civil Application therefore, would not survive as learned advocate for the applicant for joining party was heard. Civil Application stands disposed of accordingly.