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SUPREME COURT OF INDIA
ARUN MISHRA, VINEET SARAN, S. RAVINDRA BHAT, JJ.
THE DESIGNATED AUTHORITY & ORS. – APPELLANT(S)
VERSUS
M/S THE ANDHRA PETROCHEMICALS LIMITED – RESPONDENT(S)
CIVIL APPEAL NO(S). 3046-3048 OF 2020 (ARISING OUT OF SLP (C) NO(S). 22582-22584 OF 2019)
Decided on : 01-09-2020
(A) Customs Tariff Act, 1975 – Section 9A – Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Article and for Determination of Injury) Rules, 1995 – Rules 16 and 20 – Imposition of anti-dumping duty – Purpose behind imposition of duty is to curb unfair trade practices resorted to by exporters of a particular country of flooding domestic markets with goods at rates which are lower than rate at which exporters normally sell the same or like goods in their own countries so as to cause or be likely to cause injury to domestic market – Purpose of Section 9-A is to maintain level playing field and prevent dumping while allowing for healthy competition – Section 9A of Customs Tariff Act and procedure prescribed by Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and levy itself (which can be specific to foreign exporter or country – or combination of both-) cannot be more than five years which may, after due review in accordance with prescribed procedure, before expiry of said period, be extended by another period not more than five years – These timelines are crucial; DA is duty bound to follow them – Impugned orders issuing specific directions for anti-dumping investigation into articles imported from EU; order dated 22.07.2019 (initiating contempt proceedings against the DA) and order dated 05.08.2019 have to be set aside – First two orders accordingly set aside – Third order to the extent that it directs replacement of incumbent DA, set aside. (Paras 25, 26, 29 and 33)
(B) Constitution of India – Articles 226 and 32 – Judicial review – Access to judicial review is a valuable right conferred upon citizens and persons aggrieved – Constitution arms 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 concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of DA’s functions – Judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by DA. (Para 32)
Facts of the case:
Present appeals by special leave impugns three orders of the Telangana High Court, dated 28.08.2018, 22.07.2019 and 05.08.2019 respectively. These were in the context of the respondent/writ petitioners’ (Andhra Petro) challenge to orders of Designated Authority (DA), which related to the question of imposition of anti-dumping duty.
Findings of Court:
Keeping the imperative of completion of investigation within a pre-determined timeline, guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) as to the contemporaneousness of the data necessary to carry out investigation, assume importance.
Result : Appeals allowed.
JUDGMENT :
S. RAVINDRA BHAT, J.
1. Leave granted. With consent, the appeals were heard finally. The present appeals by special leave impugns three orders of the Telangana High Court, dated 28.08.2018, 22.07.2019 and 05.08.2019 respectively. These were in the context of the respondent/writ petitioners’ (hereafter “Andhra Petro”) challenge to orders of the Designated Authority (hereafter “DA”), which related to the question of imposition of anti-dumping duty.
2. The facts are that Andhra Petro applied to the Central Government, seeking imposition of anti-dumping duty on imports of normal Butanol or N-butyl alcohol originating in and exported into India from Saudi Arabia. Butanol is a basic organic chemical and a primary alcohol; it is an excellent solvent for acid-curable lacquers and baking finishes. A large part of normal Butanol is converted into derivatives for use as solvents in coating industries. This application resulted in the initiation of investigation by the designated authority into the import of the subject articles from Saudi Arabia, by notification dated 02.09.2016.
3. Andhra Petro furnished import data for the period of three months. The period of investigation was from April, 2015 to March, 2016. The Designated Authority granted a public/oral hearing to interested parties on 23.06.2017 followed by written submissions. Andhra Petro also attended the hearing and filed detailed submissions on 30.06.2017. It alleged that the information given was not only for the period of investigation but also for the entire injury period, 2012-13 to 2014-15. Andhra Petro admitted that dumping from Saudi Arabia occurred in the last three months of the period of investigation, i.e., January to March, 2016, and that there were no imports from Saudi Arabia in the first nine months of the period of investigation, i.e., from April to December, 2015. It claimed that dumping of the same product also took place from Malaysia, Singapore, South Africa, the USA and the European Union. The period of investigation by the Designated Authority covered investigation in respect of imports from these exporting territories too. The application further claimed that though imports from Saudi Arabia started only in January, 2016, the volume of such dumped imports was significant enough to cause material injury to the domestic industry. This was to the extent of capturing 39% of the market share in India.
4. Andhra Petro asserted that the exports from Saudi Arabia into India were not casual exports but were made with the intention of grabbing the Indian market. Such exports into India from Saudi Arabia were undercutting and depressing the prices of the domestic industry to a significant extent, according to it, and performance of the domestic industry during the period, January to March, 2016, was adverse in terms of profits and returns on investments. The following parameters, per the petitioner company, demonstrated the causal link between the said exports and the injury caused. The dumped imports from the subject country entered the Indian market in the period Jan-Mar 2016 [last 3 months of the period of investigation (“POI”)] in such significant volumes that improvement in volume parameters seen in the performance of the domestic industry in the first 9 months of the POI (Apr-Dec 2015), was completely wiped off. There was significant difference between the prices offered by the domestic industry and the foreign producer. Thus, the domestic industry was unable to raise the prices above the costs as a result of dumping of the product in the country.
5. The domestic industry was able to increase its sales at the cost of sub-optimal prices in the first 9 months of the POI (Apr-Dec 2015). However, the sales volumes declined drastically in the period Jan-Mar 2016 (last 3 months of the POI) even when the domestic industry offered still lower prices as fresh dumping from Saudi Arabia started in this period. Nevertheless, it was alleged that the imports were sign
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