Holding

The Designated Authority acted within the law; its demand for up‑to‑date data and enlargement of the investigation period were not arbitrary, and the High Court’s orders directing investigation and replacement of the DA are set aside.

Summary

Andhra Petrochemicals Ltd. sought anti‑dumping duty on imports of normal butanol and related chemicals from Saudi Arabia and other countries, alleging dumping and injury. The Designated Authority (DA) terminated the investigation, finding insufficient data and an inadequate period to establish injury, prompting several writ petitions. The Telangana High Court directed the DA to re‑initiate investigation, to consider updated data, and even ordered the replacement of the incumbent DA, later initiating suo motu contempt proceedings against the DA. On appeal, the Supreme Court held that the DA’s requirement for contemporary data and its decision to enlarge the investigation period were within the statutory framework and not arbitrary, and that the High Court’s orders chastising the DA and directing its replacement were erroneous. Consequently, the Court set aside the High Court’s orders and allowed the appeals, affirming the DA’s discretion under the Customs Tariff Act and the 1995 Rules.

Issues considered

The legality of the Designated Authority’s requirement for contemporary data and enlargement of the investigation period under the Customs Tariff (Identification, Assessment and Collection of Anti‑dumping Duty) Rules, 1995.
Whether the High Court’s directions to the DA to re‑initiate investigation and to replace the incumbent DA constitute valid judicial intervention.
The extent of judicial review over the quasi‑judicial functions of the Designated Authority, especially concerning the determination of ‘like article’ and the imposition of anti‑dumping duty.
The applicability of the timelines prescribed in Section 9A of the Customs Tariff Act, 1975 and related WTO obligations.
Whether the DA’s actions amount to contempt of the High Court.

Legislation cited

Customs Tariff Act, 1975s. 9A, s. 9C

Subjects

anti‑dumping dutyDesignated Authoritycustoms tariff actjudicial reviewlike articleperiod of investigationcontempt of courtWTOGATT

Judgment

1158 [2020]REPORTS
SUPREME COURT 7 S.C.R. 1158 [2020] 7 S.C.R.

A THE DESIGNATED AUTHORITY AND ORS.
v.
M/S. THE ANDHRA PETROCHEMICALS LIMITED
(Civil Appeal No. 3046-3048 of 2020)
B SEPTEMBER 01, 2020
[ARUN MISHRA, VINEET SARAN AND
S. RAVINDRA BHAT, JJ.]
Customs Tariff (Identification, Assessment and Collection of
Anti-dumping Duty on Dumped Article and for Determination of
C
Injury) Rules, 1995 – 2(b) and 2(d) – Customs Tariff Act, 1975 –
s.9A – The Respondent asserted that there was dumping of Butanol
by Saudi Arabia and sought imposition of anti-dumping duty – The
Designated Authority (DA) in its findings did not consider it
appropriate to recommend levy of Anti-Dumping duty on the subject
D goods from Saudi Arabia and terminated the investigation – Various
Writ Petitions were filed by respondent before the High Court from
time to time – Before the High Court, the respondent contended that
it was a producer of 2-EH which is a ‘like article’ to 2-PH and INA
and it satisfied the criteria u/r. 2(b) r/2. r. 2(d) of the Rules, 1995 to
file for imposition of anti-dumping duty – The first writ petition
E
filed by the respondent was allowed by the High Court and directed
fresh evaluation – However, DA declined to initiate anti-dumping
investigation vide its order dated 05.03.2018 – In second writ
petition, by order dated 28.08.2018 the High Court set aside the
order dated 05.03.2018 and directed the DA to take steps for
F initiating investigation to determine the anti-dumping in respect of
import of INA – Pursuant thereto, the DA issued notices and also
sought updated data from the respondent as its initial application
was in 2016 – Another writ petition was filed by the respondent
against the said order – In view of certain observations by the High
Court, the DA was constrained to issue notice of investigation and
G it also enlarged the period of investigation – By order dated
22.07.2019, the High Court initiated suo motu contempt petition
proceedings against DA for disobedience of its order dated
28.08.2018 and also ordered the replacement of the incumbent DA
– According to the High Court, the action of DA seeking to enlarge
H the period of investigation in the second remand order when it did
1158
THE DESIGNATED AUTHORITY & ORS. v. M/S. THE 1159
ANDHRA PETROCHEMICALS LTD.

not find any such necessity in relation to the first remand order A
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
B
where a determination on whether to impose or not to impose anti-
dumping 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 C
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 D
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, E
that judicial review is to be exercised in a circumspect manner,
especially where final findings are rendered by the DA – Anti-
dumping.
Allowing the appeals, the Court
F
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 G
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 H
1160 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B
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
C 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
D
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
E 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,
F 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
G 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,

H
THE DESIGNATED AUTHORITY & ORS. v. M/S. THE 1161
ANDHRA PETROCHEMICALS LTD.

the impugned orders were plainly erroneous in chastising the A
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 B
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 C
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 D
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 E
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 F
91 : [2015] 14 SCR 848 – referred to.
Case Law Reference
[2005] 2 SCR 255 relied on Para 25
[2006] 6 Suppl. SCR 1 relied on Para 26
G
[2008] 5 SCR 320 referred to Para 27
[2011] 1 SCR 198 referred to Para 27
[2017] 4 SCR 324 referred to Para 29

H
1162 SUPREME COURT REPORTS [2020] 7 S.C.R.

A [2015] 14 SCR 848 referred to Para 29
(2018) 13 SCC 402 relied on Para 32
(2010) 13 SCC 733 relied on Para 32
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
B 3046-3048 of 2020.
From the Judgment and Orders dated 28.08.2018, 05.08.2019 and
22.07.2019 of the High Court for the State of Telangana at Hyderabad
in W.P. No. 11116 of 2018 and in W.P. No. 2639 of 2019 respectively.
K. K. Venugopal, Attorney General, Sanjay Jain, ASG, Mukul
C Rohtagi, Sr. Adv., D. L. Chidananda, Chinmayee Chandra, Ankur Talwar,
Mrs. Anil Katiyar, Y. Raja Gopala Rao, S. Das, Y. Vismai Rao, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
D
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
E 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
F 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
G 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
H also attended the hearing and filed detailed submissions on 30.06.2017.
THE DESIGNATED AUTHORITY & ORS. v. M/S. THE 1163
ANDHRA PETROCHEMICALS LTD. [S. RAVINDRA BHAT, J.]

It alleged that the information given was not only for the period of A
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.
B
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 C
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 D
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 E
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 F
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). G
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 significantly
undercutting the domestic prices. Resultantly, the price undercutting was
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1164 SUPREME COURT REPORTS [2020] 7 S.C.R.

A creating price pressure on the domestic industry, and the reduction in
profits directly resulted in deterioration in returns on capital employed
and cash flow. Thus, deterioration in profits, return on capital employed
and cash flow was due to the dumped imports.
6. In the investigation proceedings, Andhra Petro submitted its
B written submissions on 27.10.2017, pursuant to the second oral public
hearing held on 24.10.2017 owing to the change in the incumbent holding
the office of the Designated Authority. It also filed rejoinder submissions
on 01.11.2017. In terms of Rule 16 of the Customs Tariff (Identification,
Assessment and Collection of Anti-dumping Duty on Dumped Article
and for Determination of Injury) Rules, 1995 (hereafter the “Rules
C of 1995”), the Designated Authority disclosed essential facts under
consideration, which would form the basis for his final conclusion under
the Disclosure Statement dated 14.11.2017. Andhra Petro filed its
comments on such statement, on 21.11.2017. The Designated Authority
issued the Final Findings, by Notification dated 28.11.2017, terminating
D the investigation under Rule 14(b) of the Rules of 1995.
7. The Designated Authority recorded the following findings:
(i) Period of last 3 months of POI of exports of subject goods
from Saudi Arabia was insufficient to evaluate injury to the
domestic industry as material injury determination would require
E data on imports and domestic industry’s sales for a longer duration.
(ii) The short period of production especially commercial production
of just one month also constrained determination of a
representative and realistic normal value for cooperating producers/
exporters.
F
(iii) Causal link between imports from Saudi Arabia and injury to
the domestic industry could not be conclusively established on the
basis of three months of export period.
(iv) The Authority did not consider it appropriate to recommend
levy of Anti-Dumping Duty on the subject goods from Saudi Arabia
G
and terminated the investigation under Rule 14(b) of Anti-Dumping
Rules.
8. Andhra Petro approached the Telangana High Court,
complaining that its two applications, dated 18.10.2016 and 02.12.2016
had not been duly considered in accordance with provisions of the
H
THE DESIGNATED AUTHORITY v. M/S. THE ANDHRA 1165
PETROCHEMICALS LIMITED [S. RAVINDRA BHAT, J.]

Customs Tariff Act, 1975, especially Rules 2(b) and 2(d) of the Rules of A
1995. This writ petition was allowed by order dated 09.02.2018, directing
the Designated Authority to consider the applications dated 18.10.2016
and 02.12.2016 afresh, after evaluation of the entire information placed
before him in accordance with the provisions of the Customs Tariff Act,
1975 and the Rules of 1995, more particularly Rules 2(b) and 2(d) of the
B
Rules of 1995 and pass appropriate orders within a time frame. Further
to these directions, the Designated Authority passed an order dated
05.03.2018 declining to initiate anti-dumping investigation. This order
was impugned by Andhra Petro in another writ petition (WP 11116/2018,
hereafter “the second writ petition”) before the Telengana High Court.
9. Before the High Court, Andhra Petro now contended that it C
was a producer of 2-EH which is a “like article” (as defined under Rule
2(d) of the Rules of 1995), to 2-PH and INA. It contended that it satisfied
the criteria under Rule 2(b) read with Rule 2(d) of the Rules of 1995 to
file a petition for imposition of anti- dumping duty concerning imports of
the said alcohols on behalf of the domestic industry. It was further D
contended that in spite of a specific direction of this Court dated
09.02.2018 passed in WP 25988/2017, the Designated Authority did not
determine whether the dumped products cause injury to the domestic
industry in the commercial competition with like articles made in India
and passed the impugned order declining to initiate anti-dumping
investigation. E

10. The Central Government, which filed its return, to the Writ
proceeding argued that Andhra Petro produced only 2-EH, not INA and
2-PH, and as it filed the combined application for all the said products,
the Designated Authority rejected the request of the petitioner. The letters
produced by Andhra Petro to show that 2-EH, INA and 2-PH are ‘like F
articles’, were not issued by any independent/recognised agency/source
and hence they could not be considered. It was further stated that though
several opportunities were given to Andhra Petro seeking clarifications
as to how the acyclic alcohols i.e., 2-EH, INA and 2-PH are ‘like articles’
when it does not produce INA and 2-PH, it did not submit any clarification, G
and it filed a combined application for imposition of anti-dumping duty
for all three products.
11. The High Court disposed of the second writ petition on
28.08.2018 making the following observations and directions:
H
1166 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “7. In spite of specific direction of this Court in W.P.No.25988
of 2017 dated 09.02.2018, the second respondent has not
dealt with the applications of the petitioner afresh in true
letter and spirit of the said order and passed the impugned
order. The second respondent, relying upon the order of the
Customs, Excise and Gold (Control) Appellate Tribunal, New
B
Delhi in Appeal No.C/411/2000 dated 11.04.2001 whereby it
held that Normal Hexanol is not one manufactured or
produced by domestic industry, passed the impugned order
stating that it is decided not to initiate anti-dumping
investigation concerning imports of INA, 2-PH and 2-EH
C originating in or exported from Saudi Arabia, EU and
Singapore, excluding 2-EH having carbon No.8 from EU.
While passing the impugned order, the second respondent
ignored the final findings dated 29.07.2003 and the order of
the Customs, Excise and Service Tax Appellate Tribunal
(CESTAT) dated 13.04.2006 in the case of Andhra
D
Petrochemicals Ltd. Vs. Designated Authority 2006 (201) ELT
481 (Tri.-Del.) with regard to dealing of ‘like articles’ and to
accept 2-EH supplied by the domestic industry is ‘like article’
to 2-PH and INA imported from subject countries. The
petitioner is the producer of 2-EH which is a ‘like article’ to
E 2-PH and INA and it falls within the ambit of Rule 2(b) read
with Rule 2(d) of the Rules of 1995. Rules 2(b) and 2(d) of
the Rules of 1995 read as under.
“2(b) ‘domestic industry’ means the domestic producers as a
whole engaged in the manufacture of the like article and any
F activity connected therewith or those whose collective output
of the said article constitutes a major proportion of the total
domestic production of that article except when such
producers are related to the exporters or importers of the
alleged dumped article or are themselves importers thereof in
which case such term ‘domestic industry’ may be construed
G as referring to the rest of the producers:
Provided that in exceptional circumstances referred to in sub-
rule (3) of Rule 11, the domestic industry in relation to the
article in question shall be deemed to comprise two or more
competitive markets and the producers within each of such
H market a separate industry, if –
THE DESIGNATED AUTHORITY v. M/S. THE ANDHRA 1167
PETROCHEMICALS LIMITED [S. RAVINDRA BHAT, J.]

(i) the producers within such a market sell all or almost all of A
their production of the article in question in that market; and
(ii) the demand in the market is not in any substantial degree
supplied by producers of the said article located elsewhere
in the territory.”
B
*****************
2(d) ‘like article’ means an article which is identical or alike
in all respects to the article under investigation for being
dumped in India or in the absence of such an article, another
article which although not alike in all respects, has C
characteristics closely resembling those of the articles under
investigation.”
8. The second respondent has not considered the issue whether
the imported products and the domestic products are
technically and commercially substitutable and has not come D
to a conclusion on ‘like article’. This action of the second
respondent becomes absolutely ignoring the order of this Court
dated 09.02.2018 in W.P. No. 25988 of 2017 and the
impugned order is one without application of mind. There is
no cogent reason pushing the petitioner to file repeated
applications and the second respondent cannot pass orders E
in a routine and casual manner, in spite of sufficient material
available with him.
9. In the light of the above, this writ petition is allowed, setting
aside the order of the second respondent dated 05.03.2018.
The second respondent is directed to take steps for initiating F
investigation to determine the anti-dumping in respect of import
of INA having carbon No.9 from European Union and
Singapore and 2-PH having carbon No.10 from European
Union, in accordance with law, as expeditiously as possible.
Pending miscellaneous petitions, if any, shall also stand G
closed. No order as to costs.”
12. Pursuant to the High Court’s directions, the DA issued notices
on 28.09.2018, 24.10.2018 and 03.12.2018. After noticing that Andhra
Petro’s initial application was in 2016 (i.e.18.10.2016 and 02.12.2016),
the DA issued letters seeking updated data from Andhra Petro. However,
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1168 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Andhra Petro filed WP No.2639/2019 before the High Court against the
DA’s letters of 28.09.2018, 24.10.2018 and 03.12.2018. The DA filed its
reply before the High Court, contending inter alia that first, the High
Court’s order dated 28.8.2018 did not prohibit it from calling for updated
data and had directed it (DA) to initiate investigation in accordance with
law; second, that it sought updated data to evaluate and comply with the
B
High Court’s order fairly; and lastly that Andhra Petro was silent on the
fact that the data filed by it was 30 months old.
13. Apparently, in view of certain observations made during the
proceedings by the High Court, the DA felt constrained to issue a notice
of investigation on 09.07.2019 which inter alia, stated as follows:
C
“8. The writ petition was listed on 3.7.2019 wherein the
Hon’ble High Court advised the law officer representing
the Authority that requesting the industry to file fully
documented application as per the prescribed proforma
available on the website including all data related to recent,
D updated, period of injury and POl etc., is in violation of
the orders passed by the Hon’ble High Court dated
28.8.2018 in WP No.11116/2017 and therefore was inclined
to initiate suo moto contempt proceedings and directing
the Designated Authority to appear before the Hon’ble
E High Court. The Hon’ble Court granted one weeks’ time
and posted the matter on 9.7.2019.
9. In view of the above, the Authority hereby initiates an
AD investigation into the alleged dumping and consequent
injury to the domestic industry in terms of rule 5 of AD
F rules to determine the existence, degree and effect of
alleged dumping and to consider recommending the amount
of anti-dumping duty which if levied, would be adequate
to remove the injury to the domestic industry.”
14. Para 12 of the notice read as follows:
G “The Petitioner has filed data for the period January 2016
to December 2016. In view of the High Court’s order, the
Authority initiates the investigation by prima facie
evaluating dumping and injury based on the data provided
by the applicant. However, to investigate further the POI
is proposed to be considered, as 1.4.2018 to 31.3.2019 to
H
THE DESIGNATED AUTHORITY v. M/S. THE ANDHRA 1169
PETROCHEMICALS LIMITED [S. RAVINDRA BHAT, J.]

evaluate dumping, injury and causality of injury to the A
petitioner due to alleged dumping.”
15. Later, on the same date, a corrigendum was issued and para
12 was amended by adding the following in the last line:
“The injury investigation period will however cover the
periods April 2015-March’ 2016, April 16-March 2017, B
April 2017-March 2018 and the period of investigation.”
16. By the first impugned order, the High Court initiated suo motu
contempt proceedings after recounting the previous litigation and its
directions, in those petitions. It noted that the DA, after disposal of the
first petition, undertook the exercise only in relation to the period of C
investigation sought by Andhra Petro without enlarging it (i.e. the period);
this led to the order of the DA rejecting the application on 5 March,
2018, and the filing of the second writ petition, which led to the second
remand. The High Court said that the notification (dated 09-07-2019)
therefore, “cannot be countenanced” and further observed that: D
“The action of the Designated Authority in seeking to enlarge
the period of investigation pursuant to the second remand
order when it did not find any such necessity in relation to
the first remand order clearly indicates its lack of bonafides,
if not worse, and its intent to tamper with judicial orders. E
9. Further, the tone and tenor of the language used in para 8
of the Initiation Notification dated 09.07.2019, set out supra,
clearly demonstrate the Designated Authority’s disrespect
towards the Court. It is indeed shocking to note that the
Designated Authority thinks that the High Court is advising F
it in the scheme of things! Further, having termed the direction
of this Court to be mere advice, the Designated Authority then
proceeded to brush it aside.
10. In these circumstances, we deem it appropriate to initiate
suo motu contempt proceedings against Sri Sunil Kumar,
G
Additional Secretary & Designated Authority, Directorate
General of Trade Remedies, Department of willful and
deliberate disobedience to the order dated 28.08.2018 in W.P.
No.11116 of 2018, as indicated supra, and for his utter lack
of respect towards the Court. Registry is directed to take
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1170 SUPREME COURT REPORTS [2020] 7 S.C.R.

A necessary steps in this regard and place the suo motu contempt
case before this Court after numbering the same.”
17. Close on the heels of the order (dated 22.07.2009) initiating
suo motu contempt, the High Court, by the second impugned order
disposed of the writ petition [W.P.(C) 2639/2019]. The Court observed
B inter alia as follows:
“2. We may note at this stage that the matter arises under the
Customs Tariff (Identification, Assessment and Collection of
Anti-dumping Duty on Dumped Article and for Determination
of Injury) Rules, 1995. After filing of this writ petition, we
C were informed that Mr. Sunil Kumar, the present Additional
Secretary & Designated Authority, Directorate General of
Trade Remedies, Department of Commerce and Industry,
Government of India, issued Initiation Notification dated
09.07.2019, demonstrating that the apprehension of the
petitioner company was not without foundation. In the light
D of this development, this Court was constrained to initiate
suo motu contempt proceedings against the said authority by
name.
3. That being so, we are of the opinion that it would not be
proper for the said authority to undertake the necessary
E exercise pursuant to the order dated 28.08.2018 passed in
W.P. No.11116 of 2018. We are informed that there are three
officers, viz. Mr. Mithileshwar Thakur, Mr. Satish Kumar and
Ms. Shubhra, all of the rank of Additional Director General
in the Department, who would be competent to take up the
F exercise pursuant to the aforesaid order.
4. Sri K. Lakshman, learned Assistant Solicitor General for
India, would inform this Court that the designated authority
would have to be appointed by the Union of India.
5. We accordingly dispose of the writ petition directing the
G Union of India, the third respondent herein, to choose one of
the aforestated officers and appoint him/her as the designated
authority to do the needful and undertake the exercise
pursuant to the order dated 28.08.2018 passed in W.P.
No.11116 of 2018. This exercise shall be completed
expeditiously by the Union of India and in any event, not
H
THE DESIGNATED AUTHORITY v. M/S. THE ANDHRA 1171
PETROCHEMICALS LIMITED [S. RAVINDRA BHAT, J.]

later than two weeks from the date of receipt of a copy of this A
order. Pending miscellaneous petitions, if any, shall stand
closed in the light of this final order. No order as to costs.”
18. The learned Attorney General for India contends that both the
impugned orders are unsustainable. It is urged that while issuing the
notification on 09.07.2019, the DA acted within the framework of the B
law. The Attorney General highlighted the importance of Rule 5(3) of
the Customs Tariff (Identification, Assessment and Collection of Anti-
dumping duty on Dumped Article and for Determination of Injury) Rules,
1995 as well as the relevant part of the Standard Operating Procedure
(SOP) and submitted that consideration of contemporaneous if not the
latest data is a per-condition for the launch of valid investigation by the C
DA.
19. It is submitted that the DA is duty bound to satisfy itself, upon
being presented with evidence with respect that it adequately establishes
dumping injury and causal link. Hence, adducing recent data for the
purpose of evaluation of such parameters is essential. Highlighting that D
the Standard Operating Procedure (SOP), especially para 5.9, has been
consistently adopted in this regard, it was further stated that this method
of investigation is in consonance with the WTO’s jurisprudence as well
as the recommendation of the Committee on Anti-Dumping Practices in
the WTO. E
20. It is submitted that the question of whether any goods fall
within the term “like article” is a technical one that is to be substantiated
by relevant data. In these circumstances, the position adopted by the
DA requiring the furnishing of such relevant data can never be contrary
to law, much less the subject of issuing suo motu proceedings. It was F
argued lastly that the choice of an officer acting as DA is left to the
discretion of the Central Government and the circumstance that the
incumbent to that office sought to “enlarge the period of investigation”
was not a justifiable reason for directing his removal and substitution
with another. The learned Attorney General submitted that whether any
article or goods fulfill or do not fulfill the description of “like article” are G
matters falling within the exclusive domain of the DA, who is a quasi-
judicial authority exercising statutory powers. He urged that the Court
cannot lightly direct the substitution of one official with another on the
assumption that non-inclusion of some goods in the expression “like
article” was mala fide. The learned AG urged the Court to review the H
1172 SUPREME COURT REPORTS [2020] 7 S.C.R.

A impugned order on the two specific grounds, i.e. that the so-called
“enlarged period” is contrary to law and consequently that non-inclusion
of articles other than those notified, too was not justified. These fall
within the exclusive domain of the DA and could not be interfered with
in proceedings under Article 226 of the Constitution.
B 21. Mr. Mukul Rohatgi, learned senior counsel appearing for Andhra
Petro argued that the impugned orders do not call for interference. It
was argued that the DA, despite repeated directions, failed to appreciate
the submission by Andhra Petro, that the material on record disclosing
that 2-Ethyl Hexanon (2-EH) supplied by the domestic industry is an
article like 2-Propytheptyl Alcohol (2-PH) and Isononanol (INA)
C imported from the concerned countries. It is urged that commercially
and technically, the two products can fall within the description of “like
product” relatable to 2-Ethyl Hexanol offered by Andhra Petrochemicals
Limited. Therefore, for a valid initiation of investigation, Andhra
Petrochemicals Limited satisfied the criteria enumerated under Rule 2(8).
D 22. It was contended that the DA failed to appreciate that as long
as the product is imported, duty can be imposed on all types of goods,
provided such type of goods is in commercial competition with a like
article. Highlighting that the domestic producer in terms of Rule 2(8)
should be engaged in the manufacture of like articles to enable the filing
E of a complaint and seeking imposition of anti-dumping duty upon the
dumped article, learned counsel submitted that the two products in question
were kept out of the investigation. Mr. Rohatgi argued that the scope of
the term “like article” includes those which have closely resembling
characters with the one in question.

F 23. It was submitted that 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. Learned
Senior Counsel highlighted that so far as the period of investigation was
concerned, in none of the previous proceedings did the DA ever disclose
that data other than the period mentioned in the complaint too required
G inclusion for the purposes of investigation. Not having done that in the
1
“Section 9A. Anti-dumping duty on dumped articles. —
(1) Where any article is exported by an exporter or producer from any country or
territory (hereinafter in this section referred to as the exporting country or territory) to
India at less than its normal value, then, upon the importation of such article into India,
H the Central Government may, by notification in the Official Gazette, impose an anti-
THE DESIGNATED AUTHORITY v. M/S. THE ANDHRA 1173
PETROCHEMICALS LIMITED [S. RAVINDRA BHAT, J.]

earlier proceedings, the DA was precluded from insisting that a period A
or periods other than what were the subject of complaint too had to be
included and relevant data for that end had to be given. The approach of
the DA likewise in regard to the question of “like article” is contrary to
law.
Analysis & Conclusions B
24. The relevant provision, i.e. Section 9A of the Customs Tariff
Act is extracted in the footnote below1. Section 9C of the Customs Tariff
Act provides for an appeal to the Customs, Excise and Service Tax Appellate
Tribunal (CESTAT) against an order “of determination or review thereof
regarding the existence, degree and effect of any subsidy or dumping in C
relation to import of any article.”
25. This court, in S&S Enterprise v. Designated Authority2,
observed that “the purpose behind the imposition of the duty is to
curb unfair trade practices resorted to by exporters of a particular
country of flooding the domestic markets with goods at rates which
D
are lower than the rate at which the exporters normally sell the
same or like goods in their own countries so as to cause or be likely
to cause injury to the domestic market.” It was noted that levy of
anti-dumping duty is a move to remedy injury, recognized by GATT that
balances
E

dumping duty not exceeding the margin of dumping in relation to such article.
**********************
(5) 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:
F
Provided 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:

Provided further 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 antidumping duty may
G
continue to remain in force pending the outcome of such a review for a further period
not exceeding one year.

******************

2
(2005) 3 SCC 337 H
1174 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “the right of exporters from other countries to sell their
products within the country with the interest of the domestic
markets.” Thus the factors to constitute ‘dumping’, are (i) an
import at prices which are lower than the normal value of the
goods in the exporting country; (ii) the exports must be
sufficient to cause injury to the domestic industry.”
B
26. Reliance Industries Ltd. v. Designated Authority3 explained
that industries built after independence with great difficulty should not
be allowed “to be destroyed by unfair competition of some foreign
companies. Dumping is a well-known method of unfair competition
which is adopted by the foreign companies.” The Court also said
C that,”The purpose of Section 9-A is, therefore, to maintain a level
playing field and prevent dumping while allowing for healthy
competition.”
27. The DA, no doubt, follows a prescribed quasi-judicial procedure
where a determination on whether to impose or not to impose anti-
D dumping duty takes place (through a report).4 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.5 Under Rule 4, the DA is duty bound to conduct i) investigation
of the existence, degree and effect of any alleged dumping in relation
E to imports of any article ; (ii) identify the article(s) on which anti-dumping
duty is to be imposed; (iii) submit findings, provisional or otherwise to
Central Government; (iv) determine the normal value, export price and
the margin of dumping in relation to the article under investigation; and
(v) determine the injury or threat of injury to an industry established in
India or material retardation to the establishment of an industry in India
F consequent upon the import of article from specified countries. The
meaning of dumping is defined by Rule 10.6 Rule 17, which speaks of
the findings of the DA, obliges that authority to make its final findings

3
(2006) 10 SCC 368
4
G Tata Chemicals v. Union of India, (2008) 17 SCC 180; Automotive Tyre Manufacturers
Association v. the Designated Authority (2011) 2 SCC 258
5
Rule 17 which speaks of “recommendation” by the DA. Also, the power to levy duty is
discretionary, evident from Rule 18 which leaves it to the Central Government to levy
anti-dumping duty, by following the prescribed methods
6
Rule 10 reads as follows:
“10. Determination of normal value, export price and margin of dumping. – An
H article shall be considered as being dumped if it is exported from a country or territory
THE DESIGNATED AUTHORITY v. M/S. THE ANDHRA 1175
PETROCHEMICALS LIMITED [S. RAVINDRA BHAT, J.]

“not later than one year from the initiation of investigation” through A
a report that outlines the export price, normal value and margin of dumping,
whether import of the article into India from specified countries causes
material injury, or threatens injury, or materially retards the establishment
of any industry in India, the causal link between the dumped import, etc.
The proviso to Rule 17 (1) empowers the Central Government in its
B
“discretion in special circumstances” to extend further the said period
of one year by six months, within which the investigation is to be
completed.
28. Rule 20 is important, and reads as follows:
“20. Commencement of duty. - (1) The anti-dumping duty C
levied under rule 13 and rule 19 shall take effect from the
date of its publication in the Official Gazette.
(2) Notwithstanding anything contained in sub-rule (1) - (a)
where a provisional duty has been levied and where the
designated authority has recorded a final finding of injury D
or where the designated authority has recorded a final finding
of threat of injury and a further finding that the effect of
dumped imports in the absence of provisional duty would have
led to injury, the anti-dumping duty may be levied from the
date of imposition of provisional duty;
E
(b) in the circumstances referred to in sub-section (3) of section
9A of the Act, the antidumping duty may be levied
retrospectively from the date commencing ninety days prior
to the imposition of such provisional duty: Provided that no
duty shall be levied retrospectively on imports entered for home
consumption before initiation of the investigation: F
Provided further that in the cases of violation of price
undertaking referred to in sub-rule (6) of rule 15, no duty
shall be levied retrospectively on the imports which have
entered for home consumption before the violation of the terms
of such undertaking. G
Provided also that notwithstanding anything contained in the
foregoing proviso, in case of violation of such undertaking,
to India at a price less than its normal value and in such circumstances the designated
authority shall determine the normal value, export price and the margin of dumping
taking into account, inter alia, the principles laid down in Annexure I to these rules.” H
1176 SUPREME COURT REPORTS [2020] 7 S.C.R.

A the provisional duty shall be deemed to have been levied from
the date of violation of the undertaking or such date as the
Central Government may specify in each case.”
29. Section 9A of the Customs Tariff Act and the procedure
prescribed by the Rules of 1995, clearly disclose an intent that
B 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.
C 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
D injury exists, the margin of such injury and its likely duration. The judgment
of this court in Union of India v. Kumho Petrochemicals7 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. 8
E 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:..”9 This has been given effect to by Rules 17 and 20 of the Rules
F of 199510
7
(2017) 8 SCC 307.
8
Article 5.10 reads as follows:
“5.10 Investigations shall, except in special circumstances, be concluded within one
year, and in no case more than 18 months, after their initiation.’’
9
Article 10.6, Marrakesh Agreement.
10
G Ref Commr. of Customs v. G.M. Exports, (2016) 1 SCC 91at page 118, where it was
observed that:
“32.Under Rule 17, the Designated Authority is given one year from the date of initiation
of an investigation to come out with its final findings. This is extendable by the Central
Government only in special circumstances, and only by a further period of 6 months,
and no more (Clause 5.10 of the WTO Agreement). Significantly, the Designated Authority,
in its final finding, may also provide for a retrospective levy of duty, the reasons
H
THE DESIGNATED AUTHORITY v. M/S. THE ANDHRA 1177
PETROCHEMICALS LIMITED [S. RAVINDRA BHAT, J.]

30. Keeping the imperative of completion of investigation within a 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.
The relevant provisions of the Manual are extracted below:
B
“5.9 The POI proposed in the application should be as latest
as possible, and in any case not more than six months old as
on date of initiation. If the proposed POI is more than six
months old, then applicant may be asked to furnish revised
application with fresh data.
5.10 The POI should normally be twelve months. As far as C
possible attempt should be made to identify POI as per the
financial year, as it will make analysis easier and more
accurate. An attempt should be made to select POI in such a
way that at least one complete financial year is included in
the POI to ensure availability of audited details at least for a D
part period of POI. It is always desirable to add period in
terms of quarters (as the financial results are prepared quarter
wise only) instead of any odd number of months as it may be
difficult for other interested parties to submit their audited
figures for such odd period.”
31. The rationale for these guidelines is self-evident: any E
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
F
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 (quoted above) required Andhra Petro to furnish relatively
contemporary data. Such an action cannot be termed as arbitrary. In
this court’s opinion, the impugned orders were plainly erroneous in
chastising the DA, and even directing his replacement, for what appears G
to be his adherence to prescribed procedure.
therefor, and the date of commencement of such retrospective levy. This is obviously
referable to Section 9-A(3), which reproduces Clause 10.6 of the WTO Agreement. The
reasons must be the reasons mentioned in the said sub-section, and, as mentioned in the
said sub-section, such retrospective levy cannot commence beyond 90 days from the
date of the notification imposing provisional duty.” H
1178 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 32. 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
B 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.11
33. For the foregoing reasons, this court is of the opinion that the
impugned orders, i.e., the order dated 28.08.2018 issuing specific
C directions for anti-dumping investigation into articles imported from EU;
the order dated 22.07.2019 (initiating contempt proceedings against the
DA) and the order dated 05.08.2019 have to be set aside. The first two
orders are accordingly set aside. The third order (dated 05.08.2019), to
the extent that it directs the replacement of the incumbent DA, is set
aside. The appeals are allowed in the above terms, without order on
D
costs.

Ankit Gyan Appeals allowed.

E

F

G

11
Directorate General of Anti-Dumping v Sandik International (2018) 13 SCC 402;
H Association of Synthetic Fibre Industries v Apollo Tyres Ltd (2010) 13 SCC 733.