UNION OF INDIA AND ANOTHER versus M/S. KUMHO PETROCHEMICALS COMPANY LIMITED AND ANOTHER

Citation: [2017] 4 S.C.R. 324 · Decided: 09-06-2017 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Dismissed

Cited by 2 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2017] 4 S.C.R. 324 
UNION OF INDIA AND ANOTHER 
v. 
MIS. KUMHO PETROCHEMICALS COMPANY LIMITED AND 
ANOTHER 
(Civil Appeal Nos. 8309-8310 of 2017) 
JUNE 09, 2017 
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.] 
Customs Tariff' Act, 1975 - s. 9A(5) - Anti-Dumping Duty -
C Levy of - Sunset review investigation - Relevant date for sunset 
review - Import of Acrylonitrile Butadiene Rubber from abroad -
Initiation of first sunset review investigation recommending levy of 
anti-dumping duty, thereafter, second sunset review - Subsequently, 
initiation of third sunset review investigation on 31.12.13 in respect 
of duty imposed on import of rubber - Notification dated 02. 01.2009 
D extending period of anti-dumping duty for another five years 
effective till 01.01.2014 - On 23.01.2014, issuance of Notification 
extending the duty by one year, i.e. 01.01.2015. pending 
investigation - Writ petition challenging the Notification dated 
23.01.2014 - High Court held that order of continuation of anti-
£ dumping duty, made ajier expiry of the duty period is bad in law; 
and that the public notice of initiation need not be published in the 
official gazette - On appeal held: Requirement of s. 9A(5) is that 
the sunset review is to be initiated before the expiry of the original 
period for which the anti-dumping duty prevails - There is no 
additional requirement of making it public, before the said expiry 
F date - Duty would not automatically get continued after the expiry 
of five years simply because review exercise is initiated before the 
expiry of the said period - On facts, when Notification dated 
02.01.2009 itself had lapsed on the expiry of five years, i.e. on 
01.01.2014, and was not in existence on 23.01.2014, amendment 
G of non-existing Not(fication did not arise - Amendment was to be 
carried out during the lifetime of the Notification dated 02.01.2009-
High Court rightly held that Notification dated 02.01.2009 was in 
nature of temporary legislation and could not be amended after it 
lapsed. 
H 
Dismissing the appeals, the Court 
324 
UNION OF INDIA v. MIS. KUMHO PETROCHEMICALS 
325 
COMPANY LIMITED 
HELD: 1.1 The requirement of Section 9A(5) of the A 
Customs Tariff Act, 1975 is that the sunset review is to be initiated 
before the expiry of the original period for which the anti-dumping 
. duty prevails. There is no additional requirement of making it 
public as well, necessarily before the said expiry date. The 
conclusion of the High Court that insofar as requirement ofpµblic 
8 
notice or a Gazette Notification is concerned, no such stipulation 
is made in Section 9A(5) and its proviso, is accepted. On the 
other hand, Section 9A(l), which deals with imposition of anti-
dumping duty, specifically refers to such an imposition by way of 
publication in an Official Gazette. Therefore, as far as initiation of 
review is concerned, once a decision is taken by the Government 
C 
on a particular date, that would be the relevant date and not the 
date on which it is made public. [Paras 16, 17][344-D-F] 
1.4 From the scheme of Section 9A of the Act, it becomes 
clear that though the Notification for anti-dumping duty is valid 
for a maximum period of five years, the said period can be extended 
D 
further with the issuance of fresh notification. For this purpose, 
it is necessary to initiate the review exercise before the expiry 
of the original notification, which review is commonly known as 
'sunset review'. There may be situations where the sunset review 
is undertaken but the review exercise is not complete before 
the expiry of the period of original notification. It is because of E 
the reason that the exercise of sunset review also demands 
complete procedure to be followed, in consonance with the 
principles of natural justice that was followed while imposing the 
anti-dumping duty in the first instance. To put it otherwise, this 
exercise contemplates hearing the views of all stakeholders by 
F 
giving them adequate opportunity in this behalf and thereafter 
arriving at a conclusion that the continuation of the anti-dumping 
duty is justified, othenvise injury to the domestic industry is likely 
to continue or reoccur, if the said anti-dumping duty is removed 
or varied. Since this exercise is likely to take some time and may 
go beyond the period stipulated in the original notification G 
imposing anti-dumping duty, in order to ensure that there is no 
vacuum in the interregnum, second proviso to sub-section (5) 

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