(i) The New Shippers Review initiated vide notification, dated 23.9.2015, culminating in the final findings dated 10.4.2017, is not barred by time.
(ii) In the absence of any time limit fixed in rule 22, a review undertaken under rule 22 is not required to be completed within 12/18 months as required under rule 23(3), but an accelerated procedure.
(iii) As rule 22 & rule 23 of the ADD Rules operate in different fields/spheres & well defined compartments, the limitation prescribed under rule 23(3) read with rule 17 cannot be superimposed in rule 22, in doing so, it would amount to rewriting the rule, impermissible in law.
(iv) For the reasons assigned and in the light of the law laid down in Nitco Tiles Ltd. and Sandisk International Limited, writ Petitions are not maintainable.
(v) The petitioner is entitled to avail the alternate remedy available under section 9C of the Customs Tariff Act.
+ 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. Reliance Industries Ltd. - 2006-TIOL-120-SC-AD refers.
+ Rule 17 prescribes that the Designated Authority shall within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India. This finding is submitted to the Central Government. Proviso to Rule 17 provides that the period of one year has given. Rule 17 can be extended by an another period of six months.
+ Rule 22 deals with determination of margin of dumping for exporters not originally investigated. A perusal of Rule 22 would show that it deals with determining the individual margins of dumping for exporters, who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any exporters or producers, who are subject to Anti Dumping Duties on the product. The process of investigation in case of original investigation and in case of investigation under Rule 22 is the same. Though Rule 22 is called periodical review, it actually is a fresh look at those exporters, who have not exported during the period, when the original investigation was going on. Rule 22 does not prescribe any time period within which the investigation has to be completed.
+ It is also not in dispute that Rule 22 would deal with much lesser number of exporters.
+ Rule 23(1A) provides that Designated Authority shall review the need for continued imposition of Anti Dumping Duty either upon a request by interested party, who submits positive information, substantiating the need of such review or when the reasonable period of time has elapsed since the imposition of the definitive Anti Dumping Duty and upon such review, the Designated Authority has to recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said Anti Dumping Duty is removed, and is not warranted. The period for conducting the review is specified as twelve months.
+ No period has been specified for Rule 22, which is for exporters, who have not been originally investigated because they did not export the goods in question into India.
+ It is to be noted that both, under investigation conducted under Rule 17 and 23, the number of exporters are much more compared to the exporters who are scrutinized under Rule 22.
+ India is the signatory to the agreement on implementation of Article VI of the General Agreement on Tariffs & Trade, 1994 (GATT).
+ A perusal of Clause 9.5 of GATT and the reply given by India would show that Review under Article 22 has to be done on an accelerated basis compared to the original review.
+ Supreme Court in G.M.Exports's case - 2015-TIOL-209-SC-CUS has categorically held that when 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, 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.
+ Counsel for the appellant is justified in contending that if the time taken in review under 22 is longer than the original investigation, then this would allow the foreign exporter to dump its goods into India, on the basis of provisional assessment, to the detriment of the Indian Domestic Industry. The exporter can manipulate his prices and create documents, if the period for investigation, under Rule 22 is not shorter than the original investigation.
+ We may also emphasize that the statutory interpretation of a provision is never static but is always dynamic. Though literal rule of interpretation, till some time ago, was treated as the 'golden rule', it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. [Bennion, on Statutory Interpretation (Sixth Edition) [Page 869], Indian Performing Rights Society Limited vs. Sanjay Dalia - 2015-TIOL-188-SC-IPR, Justice G.P. Singh in Interpretation of Statutes, 12th Edn. [pages 132-133 and 140-142]
+ It is important to note that neither sub-section (2) nor sub-section (6) [of section 9A] authorises the Central Government, either expressly or by necessary implication, to make rules and/or to levy anti-dumping duty with retrospective effect. This is in contrast with sub-section (3) which expressly so authorises the Central Government in the circumstances mentioned in the sub-section.
+ The agreement to which India is a signatory, is the basis of the ADD, and, therefore, the purpose behind that must be the guiding force while interpreting Rule 22. The learned Single Judge in our respectful opinion erred in applying the literal Rule of Interpretation, to come to a conclusion that to fix the time limit in Rule 22 would amount to rewriting the Rule.
+ If the time taken in review under 22 is longer than the original investigation, then this would allow the foreign exporter to dump its goods into India, on the basis of provisional assessment, to the detriment of the Indian Domestic Industry. The exporter can manipulate his prices and create documents, if the period for investigation, under Rule 22 is not shorter than the original investigation and the very purpose of imposing Anti- Dumping duty will be lost.
+ The time limit for completing the New Shippers Review must be read into Rule 22 of ADD. In the present case, the procedure under Rule 22, was initiated on 23/9/2015 and it culminated on 12/4/2017, after 18 months, which is more than the time prescribed in Rule 17 and Rule 23. The new Shippers review initiated by Notification dated 23/9/2015, and culminating in final finding dated 10/4/2017, is clearly barred by time. Even in the absence of time limit fixed in rule 22, a review undertaken under Rule 22 is required to be completed on an accelerated basis i.e., definitely before the time period prescribed in Rule 17 or Rule 23.
+ Even though the order of the Designated Authority is appealable, yet that does not take away the jurisdiction of the High Court in entertaining the writ petition.
+ The writ petition raises substantial questions of law regarding the scope and ambit of Rule 22 of the ADD Rules, and as to whether the period of limitation must be read into the Rule, an exercise which the appellate authority could not have undertaken as a creature under the Statute would be bound by the literal Rule of Construction.
