Oct 21, 2020

The facts of THE DESIGNATED AUTHORITY v. THE ANDHRA PETROCHEMICALS LIMITED case is that the Company, namely Andhra Petrochemicals Ltd, made an application to the Central Government to seek the imposition of anti-dumping duty over the import of normal Butanol Alcohol from Saudi Arabia. There was an investigation of the same by the Designated Authority. The Company furnished data of the import, and even before that, all the necessary procedures were done. The report filed by the Company stated that even though the import period of the article was only for three months, it was sufficient to cause material injury to the domestic market. The intention of export from the country was asserted to capture the market to a range of 39% by the Company.

Based on the report submitted by the Company, the Designated Authority (hereafter referred to as the DA) made note that the period of import is not sufficient to evaluate the injury, there was lack of material to determine the value for co-operating producers/ exporters. There was thus termination of the investigation that was conducted via Rule 14(b) of Anti- Dumping Rules. The Company then proceeded to the Telangana High Court that its applications were not considered wherein the Court issued an order to the DA, to consider the Company's application again afresh. Pursuant to which the DA in response to the same declined the investigation. The second rejection was also put to review through another writ to the High Court. 

The Company contended that it was appropriate for them to file a petition for the imposition of anti-dumping duty concerning imports under Rule 2(b) read with Rule 2(d) of the Rules of 1995. The Company's contention also included that even though the Court had issued direction for a thorough investigation afresh, the DA had declined to do so. The Central Government, in its statement, pointed out that the Company had not given certain clarification on certain points and the reason that the DA had denied was that there had been a combined report of three products. Pursuant to the order the DA also asked for an updated data which was deemed not appropriate to ask for. The High Court observed certain silent allegations of the activities of contempt on the part of the DA and investigation regarding the DA was ordered too.

The Attorney General who appeared on behalf of the DA in the present case argued that the DA acted within the framework of the law and pointed out that the demand for updated data is well envisaged under Rule 5(3) of the Customs Tariff Rules,1955. He submitted that it is the DA's exclusive domain to determine the articles and interference through proceedings under Article 226 should not be done and nor should there be a need to change the DA for such matters. The contention placed before the Court by the respondents was that the "DA failed to appreciate that as long as the product is imported, the duty can be imposed on all types of goods, provided such type of goods is in commercial competition with a like article …. the deliberate and persistent omission of the DA to comply with the High Court's directions was contumacious and invited stringent action, meted out by the impugned order.”

The Supreme Court observed the following in the case:

  • “The DA, no doubt, follows a prescribed quasi-judicial procedure where a determination on whether to impose or not to impose anti-dumping duty takes place. However, this proceeding culminates with a recommendation; the Central Government finally decides whether to impose such a duty, the extent of such duty, and its duration.”
  • Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within predetermined time limits and the levy itself (which can be specific to the foreign exporter or country-or combination of both-) cannot be more than five years-which may, after due review in accordance with the prescribed procedure, before the 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.
  • “Keeping the imperative of completion of investigation within a predetermined 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.”

The bench consisting of Justice Arun Mishra, Vineet Saran and S. Ravindra Bhat accepted the arguments of the Attorney General. It held that the orders that were passed by the High Court were wrong. The bench frowned upon the Court's order doubting the Designated Authority on his duty and to go to the extent seeking his replacement for performing his duty as per the relevant laws.

In the case, the Court has held that the imposition of anti-dumping duty can only be for a limited and not for later periods and quashed the orders of the High Court of Telangana.

The Court also is found stating in its judgement that, "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"