The Designated Authority and Ors. vs M/s. the Andhra Petrochemicals Limited

not find any such necessity in relation to the first remand order clearly indicated its lack of bonafides – Before the Supreme Court, it was contended that DA acted within the framework of the law and the consideration of contemporaneous if not the latest data is a pre-condition for launch of valid investigation by the DA – Held: The DA, no doubt, follows a prescribed quasi-judicial procedure where a determination on whether to impose or not to impose antidumping duty takes place – In the instant case, DA having regard to Para 5.9 of the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) required the respondent to furnish relatively contemporary data – Such action cannot be termed as arbitrary – The impugned orders were plainly erroneous in chastising the DA – Thus, the impugned orders of the High Court dated 28.08.2018, 22.07.2019 and the order directing replacement of the incumbent DA are set aside.

Judicial Review – Findings of Designated Authority – 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 – Supreme 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 – Antidumping.

Allowing the appeals, the Court

HELD: 1. Section 9A of the Customs Tariff Act, 1975 and the procedure prescribed by the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Article and for Determination of Injury) Rules, 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the 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 the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign Exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India v. Kumho Petrochemicals has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) “prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:..” This has been given effect to by Rules 17 and 20 of the Rules of 1995. [Para 29] [1176-B-F]

2. Keeping the imperative of completion of investigation within a pre-determined timeline, the 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 the investigation, assume importance. [Para 30][1177-A]

3. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 required respondent to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this court’s opinion, ANDHRA PETROCHEMICALS LTD.

the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure. [Para 31][1177-E-G]

4. 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. [Para 32] [1178-A-B]

S&S Enterprise v. Designated Authority (2005) 3 SCC

337 : [2005] 2 SCR 255; Reliance Industries Ltd. v. Designated Authority (2006) 10 SCC 368 : [2006] 6 Suppl. SCR 1; Directorate General of Anti-Dumping v. Sandik International (2018) 13 SCC 402; Association of Synthetic Fibre Industries v. Apollo Tyres Ltd (2010)

13 SCC 733 – relied on.

Tata Chemicals v. Union of India, (2008) 17 SCC

180 : [2008] 5 SCR 320; Automotive Tyre Manufacturers Association v. The Designated Authority (2011) 2 SCC

258 : [2011] 1 SCR 198; Union of India v. Kumho Petrochemicals (2017) 8 SCC 307 : [2017] 4 SCR 324; Ref Commr. of Customs v. G.M. Exports, (2016) 1 SCC

91 : [2015] 14 SCR 848 – referred to.