Dilip Gupta, J. (President)

1. The Appeal filed by the Appellant, a domestic industry, before the Tribunal under Section 9C(1) of the Customs Tariff Act, 1975 [the Tariff Act] to assail the final findings dated 11 January, 2019 of the Designated Authority was allowed by the Tribunal by order dated 28 November, 2019 and the matter was remanded to the Designated Authority for a fresh determination.

2. The Designated Authority had earlier on 25 June, 2007 recommended imposition of anti-dumping duty on the import of "Nonyl Phenol" [Subject goods] originating in or imported from Chinese Taipei and the Central Government issued a notification dated 22 August, 2007 imposing anti-dumping duty. Before the expiry of five years, the domestic industry made a request for a sunset review, which was initiated by the Designated Authority on 9 August, 2012, whereafter it recommended imposition of anti-dumping duty and the Central Government issued a notification on 16 January, 2014 for continuation of the anti-dumping duty. The domestic industry filed another application on 19 April, 2018 for a second sunset review. The second sunset review was initiated on 12 June, 2018 and ultimately the Designated Authority by order dated 11 January, 2019 concluded that continuation of anti-dumping duty was not warranted and, therefore, did not recommend any extension of anti-dumping duty on the imports of subject goods. The final findings were published in Gazette of India on 11 January, 2019. It is these final findings that were assailed in the Appeal that was decided by the Tribunal on 28 November, 2019 and a direction was issued to the Designated Authority for conducting a fresh determination.

3. The present application has been filed by the Deputy Director in the Directorate General of Trade Remedies, Department of Commerce, Ministry of Commerce and Industry (Respondent in the Appeal), to seek a clarification of the order dated 28 November, 2019 passed by the Tribunal. It has been stated that the anti-dumping duty earlier imposed by notification dated 16 January, 2014 came to an end on 16 January, 2019 and so, in view of the decision of the Delhi High Court in Forech India Ltd. v. The Designated Authority and Others [ 2018 (361) E.L.T. 671 (Del.)], an appropriate clarification may be issued as to whether the anti-dumping duty can now be extended after the expiry of the period for which the anti-dumping duty was levied.

4. It would, therefore, be necessary to examine the dispute that was raised by Forech India in the Writ Petitions that were filed before the Delhi High Court. It transpires that anti-dumping duty imposed by a notification issued by the Central Government was to expire on 4 May, 2013, but four days prior this date, sunset review proceedings were initiated by the domestic industry on 30 April, 2018. The Central Government, after a gap of 60 days, issued a notification reviving the anti-dumping duty with effect from 5 May, 2013 for a period of one year up to 4 May, 2014 in terms of the second proviso to Section 9A(5) of the Tariff Act. The Designated Authority gave its final findings on 29 April, 2014 on the sunset review, which findings were published in the Gazette of India on 28 July, 2014. The Designated Authority recommended extension of the anti-dumping duty for a period of five years and the Central Government, by a notification dated 24 July, 2014, imposed anti-dumping duty for another period of five years. Thus, there was a gap of about 80 days between the expiry of the anti-dumping duty on 4 May, 2014 and the issue of a fresh notification on 24 July, 2014 by the Central Government imposing anti-dumping duty for a period of five years. The Writ petitioners had not only challenged the extension of anti-dumping duty for a period of one year pending the sunset review but had also challenged the continuation of anti-dumping duty for a period of five years pursuant to the sunset review determination on the ground that the anti-dumping duty could only have been continued before the expiry of the period for which they were levied and not afterwards.

5. In regard to the extension of anti-dumping duty by one year, after a gap of 60 days, the Delhi High Court observed that:-

"20. Applying the said principle to the facts of the present case, it is seen that the notification no. 17/2013 issued 60 days after the expiry of the levy of anti-dumping duty under the first five year period, would be non est because it sought to extend a levy which had lapsed on 4-5-2013. The second proviso to section 9A(5) of theis an enabling provision granting the Central Government the authority to continue anti-dumping duty pending the outcome of the sunset review for a further period not exceeding one year. The essential requirements for such continuation are: (i) the sunset review ought to have been initiated before the expiry of the five year period of levy anti-dumping duty; (ii) the inquiry has not concluded within the said period; (iii) a prima facie view is formed by the Government that continuance of the anti-dumping duty would be necessary, and (iv) such extended period would not exceed one year from the date on which the first five years expires. The phrase "may continue to remain in force", assumes that there is a levy which exists and its continuance i.e. its carrying forward - without a break' in its existence, is necessary. The moment the levy comes to an end or there is a break in continuance, it cannot be revived in the sunset review exercise. Extending the levy is like stretching the fabric of the levy to cover the extended period for another year. In the present case, the original levy came to an end on 4-5-2013. The levy had a limited life and unless fresh life was infused in it before its predetermined expiry date, it could not be deemed to have been extended. Infusion of fresh life into the levy for a period of one year requires a fresh notification, in addition to the notification for initiation of the sunset review. That not being so, in the present case the levy under impugned notification is without authority, hence it has to be and is set aside."

(emphasis supplied)

6. In regard to the extension of anti-dumping duty for a period of five years on the second sunset review, after a gap of 80 days, the Delhi High Court observed as follows:-

"21. Likewise the second notification imposing anti-dumping duty for a period of five years too cannot be sustained because it has to be issued within the period of first five years or in the extended one year period of sunset review in which the earlier existing duty has been extended. The first proviso of section 9A(5) of thestipulates that in a sunset review when the Central Government is of the opinion that cessation of such duty is likely to lead to continuation or recurrence of dumping or injury, it may extend the period of levy for a further period of five years. The degree of levy would be to the extent necessary to offset the injury. In other words, there would have to be a duty in existence for it to be extended. In the present case there was cessation of duty on 5-5-2013 and again on 5-5-2014, therefore, there was no duty on two dates which could have been extended."

(emphasis supplied)

7. Thus, in regard to both the extensions, the Delhi High Court observed that there cannot be a break in the continuation of anti-dumping duty and so any notification for continuation of anti-dumping duty has to be issued before the expiry of the period for which the anti-dumping duty was levied.

8. Shri Ameet Singh, Learned Counsel appearing for the Applicant has pointed out that the period of five years for which the anti-dumping duty was imposed by notification dated 16 January, 2014 expired on 16 January, 2019 and, therefore, in view of the aforesaid decision of the Delhi High Court in Forech India, the Tribunal may clarify whether the Designated Authority, on remand by the Tribunal, can make any recommendation for continuation of imposition of anti-dumping duty.

9. Ms. Reena Khair, Learned Counsel appearing for the Appellant has contended that considering the powers conferred upon the Tribunal under subsection (3) of Section 9C of the Tariff Act, which includes the power to pass such orders in Appeal as the Tribunal thinks fit, confirming, modifying or annulling the order appealed against, the Designated Authority, on remand by the Tribunal, can make a recommendation for imposing anti-dumping duty even after the period for which anti-dumping duty was imposed had expired on 16 January, 2019. In this connection, it has been pointed out that in case it is held that even after remand by the Tribunal, the notification has to be issued by the Central Government for continuation of anti-dumping duty on or before 16 January, 2019, the provisions of Appeal before the Tribunal under Section 9C(1) would become redundant. Learned Counsel submitted that the decision of Delhi High Court in Forech India would not be applicable in a case where the Designated Authority is required to make a fresh determination pursuant to an order of remand by the Appellate Tribunal. To support this contention, reliance has been placed on certain decisions, to which reference shall be made at the appropriate stage.

10. Shri Pramod Kumar, Learned Counsel appearing for the importers, however, submitted that in such a situation the domestic industry should have ensured, by filing appropriate applications before the Designated Authority, that the proceedings were concluded by the Designated Authority in time so that enough time was left for the matter to be decided by the Designated Authority even on a remand by the Appellate Tribunal.

11. The contentions advanced by Learned Counsel for the parties have been considered and to be able to appreciate the contentions, it would be necessary to refer to the relevant provisions.

12. Section 9A(1) of the Tariff Act deals with anti-dumping duty on dumped articles. It provides that where any article is exported by an exporter or producer from any country or territory to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose anti-dumping duty not exceeding the margin of dumping in relation to such article. Sub-section (5) of Section 9A provides that the anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. The first proviso, however, stipulates that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. The second proviso further stipulates that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.

13. Section 9C(1) provides for an appeal to the Tribunal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article. Sub-section (3) of Section 9C deals with the orders to be passed by the Tribunal and it is reproduced below:-

"Section 9C(3):- The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the order appealed against."

14. It would be seen from a perusal of the aforesaid provision of subsection (3) of Section 9C of the Tariff Act that the Tribunal can pass such orders as it thinks fit, confirming, modifying or annulling the order appealed against.

15. In Union of India v. Umesh Dhaimode [ 1998 (98) E.L.T. 584 (S.C.)], an issue arose whether such orders would also include the power of remand. Section 128(2) of the Customs Act, 1962, as it then stood, also conferred on the Appellate Authority powers to pass such orders as it may deem fit, confirming, modifying or annulling the decision appealed against. It is in this context that the Supreme Court observed that an order of remand necessarily annuls the decision which is under Appeal before the Appellate Authority. The Appellate Authority is also invested with the power to pass such orders as it deems fit. Both these provisions, when read-together, would mean that the Appellate Authority has the power to set aside the decision which is under appeal before it and to remand the matter to the Authority for a fresh decision.

16. As noticed above, in the present case, while deciding the Appeal, the Tribunal had remanded the matter to the Designated Authority for a fresh decision. The point on which clarification has been sought is whether the Designated Authority can still make a recommendation to the Central Government for imposition of anti-dumping duty since the period for which anti-dumping duty was earlier imposed by notification dated 16 January, 2014 expired on 16 January, 2019. This clarification has been sought for the reason that the Delhi High Court in Forech India had held that a notification for continuation of antidumping duty has to be issued within a period of five years or the extended period of one year because there has to be a duty in existence for it to be extended.

17. The submission of Learned Counsel for the domestic industry is that such a limitation provided for continuation of anti-dumping duty would not be applicable in a case where the Designated Authority is asked to make a fresh determination on remand by the Appellate Tribunal.

18. Such a situation was examined by the Supreme Court in The Director of Inspection of Income Tax (Investigation), New Delhi and Another v. M/s. Pooran Mai & Sons and Another [ 1975 SCC (4) 568] in a matter arising out of The Income Tax Act, 1961. [Income Tax Act]. The order passed by the Income Tax Officer under Section 132 of the Income Tax Act was assailed in a writ petition filed on 12 January, 1972. The impugned order was set aside and the Department was permitted to look into the matter afresh. A fresh order was thereafter passed on 9 June, 1972 which was sought to be challenged on the ground that the Income Tax Officer did not have the jurisdiction to pass the impugned order after the period prescribed in Section 132(5) of the Income Tax Act expired. The Supreme Court held that if any direction is given by a Court, then an order issued in pursuance of such a direction would not be subject to the limitation prescribed under Section 132(5) of the Income Tax Act as such an interpretation would make Section 132 of the Income Tax Act ridiculous and useless and the powers of the Court wholly ineffective. The relevant portion of the judgment of the Supreme Court is reproduced below:-

"6. Even if the period of time fixed under Section 132(5) is held to be mandatory that was satisfied when the first order was made. Thereafter if any direction is given under Section 132(12) or by a court in writ proceedings, as in this case, we do not think an order made in pursuance of such a direction would be subject to the limitations prescribed under Section 132(5). Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income-tax Officer to pass afresh order. We cannot accept the contention on behalf of the respondents that even such afresh order should be passed within ninety days. It would make the sub-section (11) and (12) of Section 132 ridiculous and useless. It cannot be said that what the notified authority could direct under Section 132 could not be done by a court which exercises its powers under Article 226 of the Constitution Article 226 wholly ineffective. The Court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. If in a particular case a court takes the view that the Income-tax Officer while passing an order under Section 132(5) did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But in the circumstances of a case the Court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice the Court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a court quashes an order because the principles of natural justice have not been complied with it should not while passing that order permit the Tribunal or the authority to deal with it again irrespective of the merits of the case."

(emphasis supplied)

19. This decision of the Supreme Court in Pooran Mai was followed by the Supreme Court in Commissioner of Income Tax, Central Calcutta v. National Taj Traders [ (1980) 1 SCC 370 ] and Bombay Metropolitan Region Development Authority, Bombay v. Gokak Patel Volkart Ltd. and Others [ (1995) 1 SCC 642 ]. In Gokak Patel, the Supreme Court observed that it was well-settled that when the statute lays down the period of limitation for passing an order that requirement is fulfilled as soon as an order is passed within that period. If the order is set aside on appeal and the appellate order directs a fresh order to be passed then there is no requirement of law that the consequential order to give effect to the appellate order must also be passed within the statutory period of limitation. The observations are as follows:

"26. In the instant case, there is no question of any inactivity. The appellant had passed an order within 60 days, which was ultimately quashed by the High Court. The deeming clause under Section 13(3) comes into operation only when the Metropolitan Authority fails to pass an order within a period of 60 days from the receipt of the application. But if an order is passed and that order is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway. The appellate order will now hold the field and a fresh order will have to be passed in terms of the order of the Appellate Authority or the Court."

20. It would also be pertinent to refer to a decision of the Delhi High Court in Essar Steel Limited v. Union of India [ 2008 (222) E.L.T. 161 (Del.)]. The order dated 27 August, 2003 passed by the Designated Authority terminated the anti-dumping investigation. It was sought to be contended by the Respondent that since the period of 12 months statutorily prescribed for the investigation and submission of final findings under Rule 17(1) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [Anti-Dumping Rule] would have ended on 29 March, 2004, the notification dated 27 August, 2003 could not be quashed at this stage and the matter be remanded in 2007 after the said period was over. The Delhi High Court relied upon the decisions of the Supreme Court in National Taj Traders, Pooran Mai, National Taj Traders and Gokak Patel and held that the submission of the Respondent that the Writ Petition must be dismissed since the period prescribed under Rule 17(1) of the Anti-Dumping Rules was over cannot be sustained in the facts of the case.

21. In Huawei Tech. Co. Ltd. v. Designated Authority [ 2011 (273) E.L.T. 293 (Tri. - Del.)], the final findings of the Designated Authority as well as the consequential notification issued by the Central Government imposing anti-dumping duty were assailed. The Tribunal allowed the Appeal and remanded the matter to the Designated Authority for affording a post decisional hearing and for making such modifications in the final findings as may be considered necessary. The contention that a fresh determination cannot be made after the expiry of the time-limit was not accepted for the reason that for implementation of a decision of an Appellate Forum, the time-limit prescribed for original anti-dumping investigation will not be applicable.

22. In this connection it would also be pertinent to refer to the European Commission [Brussels, 13.8.2010 COM(2010) 435 final 2010/0234 (NLE)] proposal for a Council Regulation re-imposing definitive anti-dumping duty on imports of ironing boards originating in the People's Republic of China manufactured by Foshan Shunde Yongjian Housewares and Hardware Co. Ltd., Foshan. The European Commission noticed that the introduction of deadlines to conclude antidumping investigations would not be relevant for the implementation of a Court judgment for such deadlines only govern the completion of the original investigation and do not concern any subsequent action that may be taken as a result of judicial review. Any other interpretation would mean that a successful legal action brought by the domestic industry would be without any practical effect for that party, if it is accepted that the expiry of the time-limit to conclude the original investigation would not allow the implementation of a Court judgment. This, in the opinion of the European Commission, would be contrary to the principle that all parties should have the possibility of an effective judicial review. The relevant paragraphs of the decision of the European Commission are reproduced below:

"(17) It is recalled that the CoJ has rejected all the substantive arguments of Foshan Shunde referring to the merits of the case. Thus, the Union institutions' obligation is focused on correcting the part of the administrative procedure where the irregularity occurred in the initial investigation.

(18) The claim that the introduction of deadlines (i.e. 15 months and 18 months respectively) to conclude anti-dumping investigations prevents the Commission from fallowing the approach underlying the IPS case was found unwarranted. It is considered that this deadline is not relevant for the implementation of a Court judgment. Indeed, such deadline only governs the completion of the original investigation from the date of initiation to the date of definitive action, and does not concern any subsequent action that might have to be taken for instance as a result of judicial review. Furthermore, it is noted that any other interpretation would mean that a successful legal action brought by the Domestic industry would be without any practical effect for that party if it is accepted that the expiry of the time limit to conclude the original investigation would not allow the implementation of a Court judgement. This would be at odds with the principle that all parties should have the possibility of effective judicial review.

(20) Therefore, it is concluded that Article 6(9) of the basic Regulation applies to the initiation of proceedings and the conclusion of the investigation initiated pursuant to Article 5(9) of the basic Regulation only and not to a partial reopening-of an investigation with a view to implementing an EU Court ruling.

(21) This conclusion is in line with the approach taken for the implementation of WTO panels and Appellate Body reports rulings where it is accepted that institutions could amend deficiencies of a regulation imposing anti-dumping duties in order to comply with dispute settlement body reports, including in cases concerning the European Union. In such cases it was felt necessary to adopt special procedures to implement WTO panel and Appellate Body reports because of the lade of direct applicability of such rulings in the EU legal order, by contrast with the decisions taken by the Court of Justice which are directly applicable.

(22) With respect to the arguments submitted on the application of Article 6(1) of the basic Regulation it is noted that no infringement of Article 6(1) of the basic Regulation could be established since the Commission has not opened a new proceeding but reopened the original investigation to implement a Court judgement."

(emphasis supplied)

23. In Borlem Sa-Empreedimentos Industrials Sa v. United States US [ 913 F2d 933], the United States Court of Appeal also observed that the time frame set out for the original determination would not be applicable when a reconsideration is directed to be conducted pursuant to an order of a Court. The observations are as follows:-

"19. ---Reconsideration pursuant to court remand order seems clearly within the compass of section 2643(c)(1), provided the directions to the Commission do not contravene the statute or improperly infringe on the decision-making authority of the agency.

20. The Commission also argued that the anti-dumping statute requires it to base its determination on Commerce's original determination. It relies on the language of 19 U.S.C. Sec. 1673d(b)(1) (1980) which provides that "the Commission shall make a final determination... with respect to which the administering authority has made an affirmative determination under subsection (a)(1) of this section." It interprets that section as limiting the right of the Commission to make a determination of injury based only on a Commerce determination made within the timetable of section 1673d(a) (1980).

21. We appreciate the Commission's desire to adhere to the time requirements of the statute. Nonetheless, we do not believe the trial court erred in considering that it had the authority to order a redetermination outside of that time frame. Congress clearly wanted prompt consideration of antidumping petitions and it set out a formula for the Commission and Commerce to accomplish that goal. The statute, however, says nothing about redeterminations. It does not provide for them, nor does it forbid them. Redetermination of an injury finding on remand by a court in no way interferes with the statutory scheme. Indeed, the Commission's interpretation would be inconsistent with other parts of the statute providing for judicial review. See 19 U.S.C. Sec. 1516a (1988)."

(emphasis supplied)

24. It is, therefore, clear from the aforesaid decisions that the requirement that the Designated Authority and the Central Government should issue a notification for continuation of the anti-dumping duty during the existence of the anti-dumping duty would not be applicable where the Designated Authority has been asked to conduct a fresh determination pursuant to an order passed by the Tribunal.

25. In this view of the matter, the decision of the Delhi High Court in Forech India would not be applicable to the facts of the present case inasmuch as the said decision relates to the original determination by the Designated Authority and not to a determination when a remand is made by the Appellate Tribunal. The contention of the Learned Counsel appearing for the importers cannot also be accepted for the same reason.

26. The Application, accordingly, stands disposed of with the aforesaid clarification.

(Pronounced in the open Court)