UNION OF INDIA AND ANOTHER versus M/S. KUMHO PETROCHEMICALS COMPANY LIMITED AND ANOTHER
[2017] 4 S.C.R. 324, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Ratio
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and that the public notice of initiation need not be published in the 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) of 
Section 9A of the Act empowers the Central Government to 
continue the anti-dumping duty for a further period not exceeding 
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326 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
·A one year, pending the outcome of such a review. The question, 
however, is as to whether this extension to fill the void that may 
be created during the pendenl)' of the sunset review is exercised 
is automatic, once the decision is taken to have sunset review of 
the anti-dumping duty or the continuation of such an anti-dumping 
8 
duty has to be by a proper notification. [Para 30][351-D-H; 352-
A-B) 
1.5 Proviso to sub-section (5) of Section 9A of the Act is an 
enabling provision. That is very clear from the language of the 
said provision itself: Sub-section (5) of Section 9A gives maximum 
life of five years to the imposition of anti-dumping duty by issuing 
C a particular notification. Of course, this can be extended by issuing 
fresh notification. However, the words 'unless revoked earlier' 
in sub-section (5) clearly indicate that the period of five years 
can be curtailed by revoking the imposition of anti-dumping duty 
earlier. Of course, provision for review is there, and the Central 
· D Government may extend the period if after undertaking the 
review it forms an opinion that continuation of such an anti-
dumping duty is necessary in public interest. When such a 
notification is issued after review, period of imposition gets 
extended by another five years. That is the effect of first proviso 
E 
F 
H 
to sub-section (5) of Section 9A. However, even as per sub-
section (5) it is not necessary that in all cases
anti-dumping duty 
shall be imposed for a full period of five years as it can be revoked 
earlier. Li~wise, when a review is initiated but final conclusion 
is not arrived at and the period of five years stipulated in the 
original notification expires in the meantime, as per second· 
proviso 'the anti-dumping duty may continue to remain in force'. 
However, it cannot be said that the duty would automatically get 
continued after the expiry of five years simply because review 
exercise is initiated before the expiry of the said period. It cannot 
be- denied, that issuance of a notification is necessary for 
extending the period of anti-dumping duty. Reason is simple. No 
duty or tax can be imposed without the authority of 'law'. Here, 
such a law has to be in the form of an appropriate notification and 
in the absence thereof the duty, which is in the form of a tax, 
cannot be extracted as, otherwise, it would violate the provisions 
of Article 265 of the Constitution of India. As a fortiorari, it
UNION OF INDIA v. MIS. KUMHO PETROCHEMICALS 
327 
COMPANY LIMITED 
becomes apparent that the Government is to exercise its power A 
to issue a requisite notification. In this hue, the expression 'may' 
in the second proviso to sub-section (5) has to be read as enabling 
power which gives discretion to the Central Government to 
determine as to whether to exercise such a power or not. [Para 
31][352-D-H; 353-A-B] 
1.6 Once sunset review is initiated, such initiation takes 
place only after a substantiated application/request is filed by the 
indigenous industry which is examined and a prima facie view is 
formed by the Central Government to the effect that such a review 
B 
is necessitated as withdrawal of anti-dumping duty or cessation 
thereof may be prejudicial to the indigenous industry. Once such 
C 
an opinion is formed and the sunset review is initiated, in all 
likelihood the Central Government would make use of second 
proviso and issue notification for continuing the said anti-dumping 
duty. At the same time, it cannot be said that without any overt 
act on the part of the Central Government, there is an automatic 
D 
continuation. The legislature has consciously used the expression 
'may' and 'shall' at different places in the same Section, i.e., 
Section 9A. In such a scenario, it has to be presumed that different 
expressions were consciously chosen by the Legislature to be 
used, and it clearly understood the implications thereof, therefore, 
when the word 'may'
is used in the same Section in 
contradistinction to the word 'shall' at other places in that very 
Section, it is difficult to interpret the word 'may' as 'shall'. 
Therefore, it is difficult to read the word 'may' as 'shall'. [Para 
E 
32] [353-C-F] 
F 
1. 7 The anti-dumping duty may continue, pending the 
outcome of the review, for a further period not exceeding one 
year. Thus, maximum period of one year is prescribed for this 
purpose which implies that the period can be lesser as well. The 
Government is, thus, to necessarily form an opinion as to for how 
much period it wants to continue the anti-dumping duty pending G 
outcome of such a review. Moreover, since the maximum period 
is one year, if the review exercise is not completed within one 
year, the effect of that would be that after the lapse of one year 
there would not be any anti-dumping duty even if the review is 
pending. In that eventuality, it is only after the review exercise is 
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328 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A complete and the Central Government forms the opinion that 
the cessation of such a duty is likely to lead to continuation or 
recurrence of clumping and injury, it would issue a notification 
extending the period of imposition of duty. Therefore, there may 
be a situation where even when the power is exercised under 
B 
c 
second proviso and duty period extended by full one year, the 
review exercise could not be completed within that period. In 
that situation, vacuum shall still be created in the interregnum 
beyond the period of one year and till the review exercise is 
complete and fresh notification is issued. This situation belies 
the argument that extension under second proviso is to be treated 
as automatic to avoid the hiatus or vacuum in between. [Para 
33 J[353-G-H; 354-A-C] 
1.8 The High Court held that once the earlier Notification 
by which anti-clumping duty was extended by five years, i.e. up to 
January 01, 2014, expired, the Central Government was not 
D empowered to issue any Notification after the said date, namely, 
on January 23, 2014, inasmuch as there was no Notification in 
existence the period whereof could be extended. The High Court, 
in the process, also held that the Notification extending anti-
clumping duty by five years, i.e. up to January 01, 2014 was in the 
E 
F 
nature of temporary legislation and validity thereof could be 
extended, in exercise of powers contained in second proviso to
sub-section (5) of Section 9A of the Act only before January 01, 
2014. There is no infirmity in the said approach of the High Court 
in interpreting the second proviso to Section 9A(5) in the light of 
Article 11.1, 11.2 and 11.3 of the Agreement for Implementation 
and Article VI of the GATT, commonly known as 'Implementation 
Agreement'. [Paras 36, 37)[355-B-E] 
1.9 Two things which follow from the reading of the Section 
9A(5) of the Act are that not only the continuation of duty is not 
automatic, such a duty during the period of review has to be 
G imposed before the expiry of the period of five years, which is 
the life of the Notification imposing anti-dumping duty. Even 
othenvise, Notification dated January 23, 2014 amends the earlier 
Notification dated January 02, 2009, which is clear from its 
language. However, when Notification dated January 02, 2009 
itself had lapsed on the expiry of five years, i.e. on January 01, 
H
UNION OF INDIA v. MIS. KUMHO PETROCHEMICALS 
329 
COMPANY·LJMITED 
2014, and was not in existence on January 23, 2014 question of A 
amending a non-existing Notification did not arise at all. As a 
sequitur, amendment was to be carried out during the lifetime of 
the Notification dated January 02, 2009. The High Court, thus, 
rightly remarked that Notification dated January 02, 2009 was in 
the nature of temporary legislation and could not be amended 8 
after it lapsed. [Para 40}[356-E-HJ 
Rishiroop Polymers (P) Ltd. v. Designated Authority and 
Additional Secretary [2006) 3 SCR 252 : (2006) 4 SCC 
303 - distinguished. 
Fibre Boards Private Limited, 
Bangalore 
v. 
Commissioner of Income Tax, Bangalore [2015) 8 SCR 
906 : (2015) 10 sec 333 - held inapplicable. 
Reliance Industries v. Designated Authorities [2006] 6 
Suppl. SCR 1 : (2006) 10 SCC 368; B. K. Srinivasan & 
Ors. v. State of Karnataka & Ors. [1987) 1 SCR 1054 
: (1987) 1 SCC 658; Union of India & Ors. v. Ganesh 
Das Bhojraj [2000) 1 SCR 1081 : (2000) 9 SCC 461; 
Union of India v. Param Industries Ltd. 2015 (321) ELT 
192 (SC); Automotive Tyre Manufacturers Association 
v. Designated Authority & Ors. [2011] l SCR 198 : 
(2011) 2 SCC 258; N. Nagendra Rao & Co. v. State of 
A.P. (1994) 3 Suppl. SCR 144 : (1994) 6 sec 205; 
Dinkar Anna Patil and Another v. State of Maharashtra 
and Others [1998) 2 Suppl. SCR 564 : (1999) l SCC 
354; Suh-Committee on Judicial Accountability i: Union 
of India and Another (1991) 4 SCC
699; Life Insurance 
Corporation of India v. Escorts Ltd. [1985] 3 Suppl. 
SCR 909 : (1986) 1 SCC 264; Babu Varghese F. Bar 
Council of Kera/a [1999) 1 SCR 1121 : (1999) 3 SCC 
422; Harivansh Lal Mehra v. State of Maharashtra 
[1971] Suppl. SCR 113 : (1971) 2 SCC 54 - referred 
to. 
Case Law Reference 
[2006] 6 Suppl. SCR 1 
[1987] 1 SCR 1054 
referred to 
Para 9 
referred to 
Para 13 
c 
D 
E 
F 
G 
H
330 
SUPREME COURT REPORTS 
[20 l 7] 4 S.C.R. 
A 
[2000) 1 SCR 1081 
referred to 
Para 14 
2015 (321) ELT 192 (SC) 
referred to 
Para 14 
[2011] 1 SCR 198 
referred to 
Para 15 
[2006] 3 SCR 252 
distinguished 
Para 34 
B 
[2015] 8 SCR 906 
held inapplicable Para 34 
[1994) 3 Suppl. SCR 144 
referred to 
Para 25 
[1998) 2 Su1lpl. SCR 564 
referred to 
Para 25 
(1991) 4 sec 699 
referred to 
Para 25 
c 
[1985] 3 Suppl. SCR 909 
referred to 
Para 27 
[1999] 1 SCR 1121 
referred to 
Para 29 
[1971] Suppl. SCR 113 
referred to 
Para 29 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 
8309-8310 of 20 l 7. 
D 
From the Judgment and Order dated 11.07.2014 ofthe High Court 
of Delhi at New Delhi in WP (C)No. 1851 of2014and WP No. 1866 of 
2014 
WITH 
E 
Civil Appeal No. 8312, 8313, 8314 and 8311 of2017. 
Ms. Pinky Anand, ASG, Basava Prabhu Patil, Sr. Adv., 
Ms. Madhavi Divan, Ms. Rash mi Malhotra, Arij it Prasad, Vijay Prakash, 
HemantArya, B. Krishna Prasad, V. Lakshmikumaran, Darpan Bhuyan, 
Ankit Sharma, Bhargava Mansanta, Anil Dutt, M. P. Devanath, 
F Ms. Reena Khair, Rajesh Sharma, Ms. Rita Jha, Ms. Shreya Dahiya, 
E. C. Agrawala, San jay Sharawat, Ashish Chandra, Ms. Tanvi Praveen, 
Ab hay Kumar and Devashish Bharuka, Advs. for the appearing parties. 
The Judgment of the Court was delivered by 
A. K. SIKRI, J. l. On the demand raised by the indigenous 
G industry, original/ordinmy investigation concerning imports of Acrylonitrile 
Butadiene Rubber (hereinafter referred to as
the 'product') was taken 
up sometime in March 1996 for the purpose of levy of anti-dumping duty 
on the said import from Korea RP and Germany. The primary finding to 
this effect came to be published on July 17, 1997 whereby the Designated 
H Authority recommended definitive anti-dumping duty. That resulted into
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
33 l 
COMPANY LIMITED [A. K. SIKRI, J.] 
issuance ofNotification dated July 30, l 997 by the Central Government 
A 
whereby anti-dumping duty was imposed under Section 9A of the 
Customs Tariff Act, 1975 (for short, the 'Acf) on the said product. 
Before the expiry of five years period during which anti-dumping duty 
remains operative, the first sunset review investigation was initiated by 
the Authority which recommended continued levy ofanti-dumping duty. 
8 
It resulted into another Notification dated October l 0, 2002. As per this 
Notification, the anti-dumping duty was to remain in force till October 
10, 2007. Just before that, on October 08, 2007, second sunset review 
investigation was initiated by the Authority, which resulted in 
recommendation dated October 04, 2008 for continued imposition of 
anti-dumping duty on imports of the product from Koreal RP. On the 
C 
basis of this recommendation, another Notification dated January 02, 
2009 was issued by the Central Government, which was to remain in 
force till January 01, 2014. On December 3 l, 2013, that is one day 
before the aforesaid Notification was to lapse, third sunset review 
investigation in respect of duty imposed on the imports of the subject 
D 
product from Korea RP was initiated. Pursuant to the initiation of the 
said sunset review investigation, the Central Government issued 
Notification No. 6/2014-Customs dated January 23, 2014 thereby 
extending the
validity of duty by one year, i.e. up to January 0 l, 20 l 5, 
pending investigation. This was done in exercise of powers contained in 
second proviso to sub-section (5) ofSection 9A of the Act. The aforesaid 
Notification dated January 23, 2014 came to be challenged by filing writ 
petitions by M/s. Kumho Petrochemicals Company Limited (respo1~dent 
No. I herein), who is a purchaser and exporter of the product from Korea 
RP, as well as by Fairdeal Polychem LLP (an importer of product from 
Korea RP). The High Court has, vide impugned judgment dated July 11, 
2014, decided both the writ petitions. It has partly allowed these writ 
petitions holding thatthe orderofcontinuation ofanti-dumping duty, made 
after expiry of the duty period, is bad in law. However, another contention 
E 
F 
of the two writ petitioners, namely, the initiation of the anti-dumping duty 
investigation was also bad in law on the ground that public notice of 
initiation was not published in the Official Gazette before January 0 l, 
G 
2014, i.e., before the expiry of the anti-dumping duty at the end of five 
years period, has not been accepted by the High Court. Repelling this 
argument, it is held by the High Court that public notice of initiation need 
not be published in the Official Gazette and that public notice is not a 
pre-requisite for initiation of an investigation, which can be issued within 
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332 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A a proximate period of time after its initiation. Union of India and 
Automotive Manufacturers Association in India felt aggrieved by that 
part of the judgment whereby extension of anti-dumping duty has been 
allowed to be bad in law. Their appeals challenge that part of the order. 
On the other hand, writ petitioners are not satisfied with the outcome of 
B the second issue about the initiation of anti-dumping duty. This part is 
challenged by these two writ petitioners. Mis. Omnova Solution (Pvt.) 
Limited is the other appellant which is also a domestic industry'and has 
challenged the orders by filing two writ petitions thereby supporting the 
stand of Union of India and Manufacturers Association. ft is for this 
reason all these appeals are heard analogously, which we propose to 
C decide by this common judgment. 
2. Few dates which are material to appreciate the controversy 
and the stand which is taken by the respective parties need to be 
recapitulated. Since we are concerned with the validity of initiation of 
the third sunset review as well as Notification dated January 23, 2014 
D vide which earlier Notification was amended and extended for a period 
of one year under Section 9A of the Act, we will mention those dates 
which revolve around the aforesaid controversy. 
E 
F 
G 
H 
3. As mentioned above, after the second sunset review, 
Notification dated January 02, 2009 was issued extending the period of 
anti-dumping
duty for another five years, i.e. till January 0l,2014. On 
December 31, 2013, a day before the period of the aforesaid Notification 
was to expire, third sunset review was initiated. However, notification 
dated December 31, 2013 was made available only on January 06, 2014, 
i.e. after the expiry of original Notification. Thereafter, Notification 
dated January 23, 2014 was issued amending the earlier Notification 
dated January 02, 2009 so as to make it remain in force till January 0 l, 
2015. This power of interim measure, pending review exercise is 
enshrined in second proviso to Section 9A(5) of the Act. 
4. Entire scheme of anti-dumping is contained in Section 9A of 
the Act which reads as under: 
"9A. (I) Where any article is exported by an exporter or producer 
from any country or territory (hereafter 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, the 
Central Government may, by notification in the Official Gazette,
UNION OF INDIA v. M/S. KUMHO .PETROCHEMICALS 
333 
COMPANY LIMITED [A. K. SIKRI, J.] 
impose an anti-dumping duty not exceeding the margin of dumping 
A 
in relation to such article. 
Explanation. - For the purposes of this section, -
(a) "margin of dumping" in relation to an article, means the 
difference between its export price and its normal value; 
B 
(b) "export price", in relation to an article, means the price of the 
article exported from the exporting country or territory and in 
cases where there is no export price or where the export price is 
unreliable because of association or a compensatory arrangement 
between the exporter and the importer or a third party, the export 
price may be constructed on the basis of the price at which the 
C 
imported articles are first resold to an independent buyer or ifthe 
article is not resold to an independent buyer, or not resold in the 
condition as imported, on such reasonable basis as may be 
determined in accordance with the rules made under sub-section 
W; 
D 
( c) "normal value", in relation to an article, means -
(i) the comparable price, in the ordinary course of trade, for the 
like article when destined for consumption in the exporting country 
or territory as determined in accordance witli the rules made under 
sub-section ( 6); or 
E 
(ii) when there are no sales of the like article in the ordinary course 
of trade in the domestic market of the exporting country or territory, 
or when because of the particular
market situation or low vo:ume 
of the sales in the domestic market of the expmiing country or 
territory, such sales do not permit a proper comparison, the normal 
F 
value shall be either -
(a) comparable representative price of the like article when 
exported from the exporting country or territory to an 
appropriate third country as determined in accordance with 
the rules made under sub-section'(6); or 
G 
(b) the cost of production of the said article in the count~y of 
origin along with reasonable addition for administrative, selling 
and general costs, and for profits, as determined in accordance 
with the rules made under subsection(6): 
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334 
A 
B 
c 
D 
E 
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
Provided that in the case of import of the article from a country 
other than the country of origin and where the article has been 
merely transhipped through the country of export or such article 
is not produced in the country of export or there is no 
comparable price in the country of expo1t, the normal value 
shall be determined with reference to its price in the country 
oforigin. 
(2) The Central Government may, pending the determination in 
accordance with the provisions of this section and the rules made 
thereunderof the nonnal value and the margin of dumping in relation 
to any aiticle, impose on the impo1tation of such article i11to India 
an anti-dumping duty on the basis of a provisional estimate of 
such value and margin and if such anti-dumping duty exceeds the 
margin as so determined, -
(a) the Central Government shall, having regard to such 
determination and as soon as may be after such determination, 
reduce such anti-dumping duty; and 
(b) refund shall be made of so much of the antidumping duty 
which has been collected as is in excess of the anti-dumping 
duty as so reduced. 
(2A) Notwithstanding anything contained in subsection (I) and 
sub-section (2 ), a notification issued under sub-section (I) or any 
anti-dumping duty imposed under subsection (2), unless 
specifically made applicable in such notification or such imposition, 
as the case may be, shall \lOt apply to articles
imported by a hundred 
per cent. export oriented undertaking or a unit in a free trade zone 
or in a special economic zone. 
Explanation. - For the purposes of this section, the expressions 
"hundred per cent. export-oriented undertaking", "free trade zone" 
and "special economic zone" shall have the meanings assigned to 
them in Explanations 2 to sub-section (f) of section 3 of Central 
Excise Act, 1944. 
(3) If the Central Government, in respect of the dumped article 
under inquiry, is of the opinion that-
( i) there is a history of dumping which caused injury or that the 
importer was, or should have been, aware that the exporter
UNION OF INDIA v. MIS. KUMHO PETROCHEMICALS 
335 
COMPANY LIMITED [A. K. SIKRI, J.] 
practices dumping and that such dumping would cause injury; 
A 
and 
(ii) the injury is caused by massive dumping of an article imported 
in a relatively short time which in the light of the timing and the 
volume of imported article dumped and other circumstances is 
likely to seriously undermine the remedial effect of the 
B 
antidumping duty liable to be levied, 
the Central Government may, by notification in the Official Gazette, 
levy anti-dumping duty retrospectively from a date prior to the 
date of imposition of anti-dumping duty under sub-section (2) but 
not beyond ninety days from the date of notification under that 
C 
sub-section, and notwithstanding any thing contained in any other 
law for the time being in force, such duty shall be payable at such 
rate and from such date as may be specified in the notification. 
(4) The anti-dumping duty chargeable under this section shall be 
in addition to any other duty imposed under this Act or under any o 
other law for the time being in force. 
(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: 
Provided that if the Central Government, in a review, is of the 
opinion that the cessation of such duty is likely to lead to 
co:itinuation or recurrence of dumping and inj wy, 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 expi1y 
of the aforesaid period of five years has not come to a conch:sion 
before such expiry, the anti-dumping duty may continue to remain 
in force pending the outcome of such a review for a further period 
not exceeding one year. 
(6) The margin of dumping as referred to in subsection ( l) or sub-
section (2) shall, from time to time, be ascertained and detern:ined 
by the Central Government, after such inquiry as it may consider 
necessary and the Central Government may. by notification in the 
Official Gazette, make rules for the purposes of this section, and 
E 
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G 
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336 
A 
B 
c 
SUPREME COURl' REPORTS 
[2017] 4 S.C.R. 
without prejudice to the generality of the foregoing such rules 
may provide for the manner in which articles liable for any anti-
dumping duty under this section may be identified and for the 
manner in which the export price and the normal value of and the 
margin of dumping in relation to, such articles may be determined 
and for the assessment and collection of such anti-dumping duty. 
(6A) The margin of dumping in relation to an article, exported by 
·an exporter or producer, under inquiry under subsection (6) shall 
be determined on the basis of records concerning normal value 
and export price maintained, and information provided, by such 
exporter or producer: 
Provided that where an exporter or producer fails to provide such 
records or information, the margin of dumping for such exporter 
or producer shall be determined on the basis of facts available.; 
(7) Every notification issued under this section shall, as soon as 
D 
may be after it is issued, be laid before each House of Parliament. 
(8) The provisions of the Customs Act, l 962 and the rules and 
regulations made thereunder, including those relating to the date 
for determination of rate of duty, assessment, non-levy, short levy, 
refunds,. interest, appeals, offences and penalties shall, as far as 
E 
may be, apply to the duty chargeable under this section as they 
apply in relation to duties leviable under that Act." 
5. We are concerned with
sub-section (5) of Section 9A of the 
Act which lays down that anti-dumping duty imposed under the said 
provision, unless revoked earlier, ceases to have effect on the expiry of 
F 
five years from the date of such imposition. It means that such a 
notification has maximum life of 5 years. Thus, in normal course, 
Notification dated January 02, 2009 would have come to an end on 
January 0 I, 2014. However, first proviso to sub-section ( l) of Section 
9A of the Act empowers the Central Government to extend the period 
of such imposition for a further period of five years after undertaking a 
G review. Second proviso stipulates that where a review is initiated before 
the expiry of the aforesaid period of five years, but the Authority has not 
come to a conclusion before such expiry, the anti-dumping duty may 
continue to remain in force for a further period not exceeding one year. 
This second proviso, thus, is to provide a stopgap arrangement to take 
H care of those contingencies where review exercise, though initiated
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
337 
COMPANY LIMITED [A. K. SIKRI, J.] 
earlier, could not be concluded during the currency of anti-dumping duty 
A 
period specified in the notifications. It is in exercise of this power 
contained in second proviso to sub-section (5) of Section 9A of the Act 
that Notification dated January 23, 2014 was issued extending the validity 
by another year, pending outcome of the sunset review. 
6. At th is juncture, we shall reproduce relevant texts ofNotification 
B 
dated December 31, 2013 vide which sunset review was initiated, as 
well as Notification dated January 23, 2014 vide which earlier Notification 
dated January 02, 2009 was amended by extending its validity by anrither 
year: 
Notification dated December 31, 2013 
"To be published in Part-I Section-I of the Gazette of India 
Extraordinary 
F NO 15/29/2013-DGAD 
Government oflndia 
c 
Department of Commerce & Industry 
D 
(Directorate General of Anti-Dumping & Allied Duties) 
Udyog Bhavan, New Delhi - 110011 
Dated the 31" December, 2013 
NOTIFICATION 
INITIATION 
Subject: Sunset Review (SSR) Anti-dumping Investigation 
concerning imports of Acrylonitrile Butadiene Rubber (NBR), 
originating in or exported from Korea RP. 
xx 
xx 
xx 
E 
F 
2 ... Second sunset review investigations were initiated b~' the 
Authority on 8tl' October 2007 and the Authority recommended 
continued imposition of anti dumping duty on imports of the subject 
goods from Korea RP vide Notification
No. 15/6/2007 dated 41h G 
October 2008 and imposed by Finance vide Custom Notification 
No. 0 l/2009-Customs dated 2"d January 2009. 
3. Whereas, Mis Omnova Solutions (India) Pvt. Ltd. have now 
H
338 
A 
B 
c 
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
filed a duty substantiated application before the Authority, as the 
domestic industry of the subject goods in India, in accordance 
with the Act and the Rules, alleging like I ihood of continuation or 
recurrence of dumping of the subject gods, originating in or 
exported from Korea RP and consequent i1tjury to the domestic 
industry and have requested for review, continuation and 
enhancement of the anti-dumping duties imposed on the imports 
of the subject goods, originating in or expmied from Korea RP. 
xx 
xx 
Initiation of Sunset Review 
7. In view of the duly substantiated application filed and in 
accordance with Section 9A(5) of the Act, read with Rule 23 of 
the Anti-dumping Rules, the Authority hereby initiates a sunset 
review investigation to review the need for continued imposition 
of anti dumping duties in force in respect of the subject goods, 
originating in or exported from the subject country and to examine 
whether the expiry of such duty is likely to lead to continuation or 
recurrence of dumping and injury to the domestic industry." 
Notification dated Januarv 23, 2014 
"Government of India 
E 
Ministry ofFinance 
F 
G 
H 
(Depmiment of Revenue) 
Notification No. 06/2014-Customs (ADD) 
New Delhi, dated the 23'ct January, 2014 
G.S.R. 48(E). - Whereas, the designated authority vide notification 
No. 15/29/2013-DGAD dated the 31" December 2013, published 
in the Gazette oflndia, Extraordinary, Part
I, Section I, dated the 
31" December 2013, has initiated review, in terms of sub-section 
(5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975) 
read with rule 23 of the Customs Tariff (Identification, Assessment 
and Collection of Anti dumping Duty on Dumped Atiicles and for 
Determination oflnjury) Rules, 1995, in the matter of continuation 
of anti-dumping duty on 'Acrylonitrile Butadiene Rubber', 
originating in, or exported from Korea RP, imposed vide notification 
of the Government oflndia in the Ministry ofFinance (Department 
of Revenue), No. 0112009-Customs, dated the 2"ct January, 2009,
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
339 
COMPANY LIMITED [A. K. S!KRI, J.] 
published in the Gazette oflndia, Extraordinary, Part II, Section 3, 
A 
sub-section (i), vide G.S.R. 5(E), dated the 2"0 January, 2009, and 
has requested for extension of anti-dumping duty for a futiher 
period of one year, in terms of sub-section (5) of section 9Aofthe 
said Customs Tariff Act; 
Now, therefore, in exercise of the powers conferred by sub-
B 
sections ( 1) and (5) of section 9A of the Customs Tariff Act, 1975 
(51of1975) read with rule 23 of the Customs Tariff(ldentification, 
Assessment and Collection of Anti-dumping Duty on Dumped 
Articles and for Determination oflnjury) Rules, 1995, the Central 
Government hereby makes the following amendment in the 
C 
notification of the Government oflndia in the Ministty ofFinance 
(Department of Revenue), No. 01/2009-Customs, dated the 2"" 
January, 2009, published in the Gazette of India, Extraordinary, 
Pati II, Section 3, sub-section (i), vide G.S.R. S(E), dated the 2"d 
January, 2009, namely: 
In the said notification, after paragraph 2, the following shall be 
D 
inserted, namely:-
"3. Notwithstanding anything contained in paragraph 2, this 
notification shall remain in force upto and inclusive of the I" 
day of January, 2015, with respect to anti-dumping duty on 
. Aerylonitrile Butadiene Rubber originating in, or exported from 
Korea RP, unless revoked earlier." 
[F.No. 354/179/2002-TRU (Pt.V)] 
(Raj Kumar Digvijay) 
Under
Secretary to the Government of India" 
7. Having noted the material dates, the relevant text of the 
Notifications as well as the statutory scheme provided under Section 9A 
of the Ac;t, we may now formulate the two questions that arise for 
consideration in these appeals: 
E 
F 
(I) After the second sunset review investigation, Notification dated 
January 02, 2009 was issued extending the anti-dumping duty 
G 
that was imposed by the initial Notification. This Notification 
was valid for a period of five years, i.e. up to January 01, 
2014. Though, the third sunset review was initiated and 
notification dated 31" December, 2013 was issued which was 
before the expiry of five years period, i.e. January 0 I, 2014, 
H
340 
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B 
c 
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
according to the writ petitioners, this Notification proposing 
the review was made public only on January 06, 2014. As per 
them, the date ofreckoning would, therefore, be publication of 
the Notification, namely, January 06, 2014, which has to be 
taken into consideration for setting into motion the sunset review. 
Since it happened after the expiry of original Notification, the 
exercise of undertaking sunset review was impermissible. 
Therefore, the first question is: 
Whether the date of December 31, 2013 or it is January 06, 
2014, which would be the relevant date for determining initiation 
of the sunset review? 
(2) Amendment Notification dated January 23, 2014, amending 
Notification dated January 02, 2009 by allowing it to remain in 
force till January 01, 2015 was issued after the original 
Notification had expired on January 01, 2014. 
The question is: Whether such a Notification issued after 
the expiry date of the original Notification is without any legal 
authority and is, therefore, null and void? 
8. We now proceed to discuss and answer these questions in 
seriatim. 
E 
QUESTION NO.I 
9. It is not in dispute that in terms of Section 9A(5) of the Act, 
anti-dumping duty is effective for a period not exceeding five years from 
the date of its imposition. The Government is empowered to revoke the 
duty imposed even before the expiry of five years. In any case, such a 
F 
duty admittedly ceases to be
operative after five years from the date of 
imposition. At the same time, the Central Government is empowered to 
initiate review, called 'sunset review', and to investigate and decide as 
to whether it is necessary to continue the levy of anti-dumping duty. As 
in the case of original Notification imposing such a duty, the Central 
G 
Government is to satisfy itself that if the period ofanti-dumping duty is 
not extended, it is likely to lead to continuation or recurrence of dumping 
and injury to the domestic industry. The nature of exercise to be 
undertaken by the Central Government in a 'sunset review' is so.mewhat 
different from the initial exercise to determine whether anti-dumping 
duty is to be levied at all or not. When it comes to review, the focus 
H
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
34 l 
COMPANY LIMITED [A. K. SIKRI, J.] 
would be on the issue as to whether withdrawal of anti-dumping duty 
A 
would lead to continuation or recurrence of dumping as well as injury to 
the domestic industry. The nature and scope of this exercise is lucidly 
explained by this Court in Reliance Industries v. Designated 
Aut/10ritie.~
1 in the following manner:-
"38. We are of the opinion that the nature of the proceedings 
B 
before the DA are quasi-judicial, and it is well settled that a quasi-
judicial decision, or even an administrative decision which has 
civil consequences, must be in accordance with the principles of 
natural justice, and hence reasons have to be disclosed by the 
Authority in that decision vide S.N. Mukherjee v. Union of 
India [( l 990) 4 sec 594: I 990 sec (Cri) 669: 1991 sec (L&S) c 
242: (1991) 16ATC445]. 
39. We do not agree with the Tribunal that the notification of the 
Central Government under Section 9-A is a legislative act. In our 
opinion, it is clearly quasi-judicial. The proceedings before the 
DA are to determine the !is between the domestic industry on the 
D 
one hand and the importer of foreign goods from the foreign 
supplier on the other. The determination of the recommendation 
of the DA and the government notification on its basis is subject 
to an appeal before CESTAT. This also makes it clear that the 
proceedings before the DA are quasi-judicial." 
E 
10. It is a common case that
such a sunset review is to initiate 
before the expiry of five years period mentioned in the Notification. In 
the present case, no doubt, the Notification which is passed initiating 
sunset review is dated December 3 1, 2013. Though we have reproduced 
relevant portion of this Notification, a perusal of the entire Notification 
reveals that it is a detailed Notification running into almost fifteen pages 
wherein history of original investigation concerned the imports of the 
product in question from Korea RP and Germany is traced out leading to 
F 
the findings that were arrived at by the Authority on the basis of which 
anti-dumping duty was imposed on the subject goods vide Notification 
dated July 30, 1997. This Notification thereafter deals with the second G 
sunset review which led to passing offurther Notification dated January 
02, 2009. Thereafter, it mentions that Mis. Omnova Solution (Pvt.) 
Limited had filed a duly substantiated application on November l l, 2013 
before the Authority alleging likelihood ofcontinuation of recurrence of 
1 (2006) 10 sec 368 
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342 
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[2017) 4 S.C.R. 
A dumping of the subject goods, originating in or exported from Korea RP, 
and a consequent injury to the domestic market and requested for another 
review. The Notification thereafter deals with the situation of domestic 
industry, product in question and satisfaction of the Authority that a case 
was made out for initiation of sw1set review investigation to review the 
B need for continued imposition of anti-dumping duty in force in respect of 
the product in question. The Notification thereof calls upon the interested 
parties to submit relevant information in the prescribed form and manner 
and furnish their views to the Authority for its consideration. Thus, a 
detailed exercise was done taking into account all the relevant factors in 
c 
D 
E 
forming the opinion that the sunset review was desirable. 
11. Though the Notification is dated December 31, 20 l3 and 
published on the same date, it was sent for distribution to Kitab Mahal 
Book Store on January 06, 2014. The validity would depend upon the 
issue as to whether December 31, 2013 is the date of reckoning or it is 
only January 06, 2014. 
12. The High Court has answered the question in favour of the 
Government and against the writ petitioners on the ground that Section 
9A(5) of the Act and its proviso do not mandate a public notice or a 
Gazette Notification as a pre-condition for initiation of sunset review 
investigation. The reference to publication by Official
Gazette is, 
significantly, in Section 9A( I) which talks of imposition of anti-dumping 
duty. 
, 
13. Questioning the aforesaid approach of the High Court, it was 
argued by the learned counsel for the writ petitioners that this view was 
contrary to the judgment of this Court in B.K. Srinivasa11 & Or.~. v. 
F State of Karnataka & Ors. 2 wherein it was held as under: 
G 
H 
"15 .... Where the parent statute is silent, but the subordinate 
legislation itself prescribes the manner of publication, such a mode 
of publication may be sufficient, if reasonable. If the subordinate 
legislation does not prescribe the mode of publication or if the 
subordinate legislation prescribes a plainly unreasonable mode, of 
publication, it will take effect only when it is published through the 
customarily recognised official channel, namely, the Official 
Gazette or some other reasonable mode of publication ... " 
'(1987) 1sec658
UNION OF INDIA v. MIS. KUMHO PETROCHEMICALS 
343 
COMPANY LIMITED [A. K. SIKRI, J.] 
14. It was argued that the aforesaid principle was reiterated in 
A 
the case of U11ion of India & Ors. v. Ganesh Das Blwjraf. On the 
basis of this principle contained in the aforesaid judgments, it was submitted 
that even if the provisions of the statute, i.e. Section 9 A, were silent 
about the publication of the Notification, concerned Rules, namely, the 
Customs Tariff (Identification, Assessment and Collection of Anti-
8 
dumping Duty on Dumped Articles and for Determination of Injury) 
Rules, 1995 were to be followed. It was argued that Rule 6( I) of the 
said Rules required issuance of public notice of initiation of investigation 
and, thus, having regard to the dicta laid down in the aforesaid judgments 
prescribing a mode of publication, publication by 'extraordinarily 
recognised Official Gazette', namely the Official Gazette; had to be 
C 
resorted to and since it was made available to public only on January 06, 
2014, that date has to be treated as the relevant date when the Notification 
came into force, having reg~d to the ratio of judgment in Union of 
I11dia v. Param Industries Ltd.4 
15. Rule 6 of the aforesaid Rules deals with principles governing D 
investigations. Sub-rule ( 11) thereof mentions that whenever Designated 
Authority has decided to initiate investigation to determine the existence, 
degree and effect of any alleged dumping of any article, it shall issue a
public notice underlying its decision and also mention the particulars/ 
information which shall be provided in the said public notice. This Rule 
thereafter narrates the procedure which is to be followed which inclu!!.«s 
providing opportunity to the industrial user of the aiticle under investigation 
E 
and the respective consumer organisation in cases where. the article is 
commonly sold atthe retail level, to furnish information which is relevant 
to the investigation regarding dumping/injury where applicable, and 
casualty. The High Court is right that it is in this specific context that the 
said Rule mentions about issuance of public notice underlying its decision 
to initiate the investigation. Rule 23 deals with review, i.e. review to see 
F 
the need for the continued imposition of anti-dumping duty and inter 
a/ia mentions that provisions of Rule 6 shall be mutatis mutandis 
applicable in the case of review, meaning thereby the procedure which 
is mentioned in Rule 6 shall be followed while undertaking review as 
G 
well. Rule 6, thus, encompasses the principles of natural justice that are 
to be applied by the Designated Authority while undettaking the exercise 
'(20001 9 sec 461 
42015 (321) ELT 192 (SC) 
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[2017] 4 S.C.R. 
A of investigations qua imposition of dumping duty. Such a purport of 
Rule 6 of the rules is recognised in the case of Automotive Tyre 
Manufacturers Associatio11 v. De!i'ig11atedAutltori(v & Ors. 5, namely, 
the Designated Authority is to conform to the principles ofnaturaljustice, 
as can be seen from the following discussion in the said judgment: 
B 
"82. the elaborate procedure prescribed in Rule 6 of 1995 Rules, 
which the DA is obliged to adhere to while conducting 
investigations, we are convinced that duty to follow the principles 
of natural justice is implicit in the exercise of power conferred on 
him under the said Rules." 
c 
16. First proviso to Section 9A(S) of the Act, when read along 
with Rule 6 of the Rules, do not lead to the conclusion that the intention 
to review and extend the anti-dumping duty, in the facts of a given case, 
have to be necessarily published and made available to all, before the 
expiry of the original notification. Requirement of Section 9A(S) of the 
Act is that the sunset review is to be initiated before the expiry of the 
D 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. 
17. We, thus, agree with the conclusion of the High Court that 
insofar as requirement of public notice or a Gazette Notification is 
E concerned, no such stipulation is made in Section 9A(S) and
its proviso. 
· On thepther hand, Section 9A(l), which deals with imposition ofanti-
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 on a particular 
F date, that would be the relevant date and not the date on which it is 
made public. 
18. As a result, the appeals filed by the writ petitioners in which 
the finding of the High Court on the aforesaid question is challenged, are 
dismissed as without any merits. 
U 
QUESTION N0.2 
H 
19. Ms. Pinky Anand, learned Additional Solicitor General, arguing 
against the aforesaid view taken by the High Court, submitted that once 
the Central Government decides to hold sunset review and passes an 
' (2011) 2 sec zss
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
345 
COMPANY LIMITED [A. K. SIKRI, J.] 
order in this behalf, as was done in the present case vide Notification 
A 
dated March 31, 2013, it shows that the Central Government is, prima 
facie, satisfied that there is a justification in the request made by the 
indigenous industry for continuation of such a duty. Therefore, till this 
exercise is complete, necessary consequence has to be to continue anti-
dumping duty and it is for this reason the second proviso to sub-section 
B 
(5) of Section 9A of the Act is added in the statute. Otherwise, it was 
argued, the very purpose of this proviso stands defeated. 
20. She submitted thatthe word 'may' occurring in the said proviso 
should be read as 'shall'. She also pointed out that in the instant case 
itself, after the completion of'sunset review exercise', final notification 
was issued on September 04, 2015 signifying the continuation of anti-
C 
dumping duty was justified. On that basis, it was argued that there 
should not be a position of hiatus or vacuum in between, which also 
justifies the interpretation that the extension under the second proviso is 
automatic. For this purpose, learned Additional Solicitor General referred 
to the following discussion in the case of Rishiroop Po(vmers (P) Ltd. 
D 
v. Designated Authority and Additional Secretary6: 
"3 5. After going through the entire record with the assistance of 
the learned counsel for the parties, we are of the opinion
that the 
contention raised by the appellant is clearly contrary to the facts 
on record. The Designated Authority in its findings in the Mid-
Term Review proceedings has categorically stated that all the 
factors have been taken into consideration while determining 
continuance of the anti-dumping duty. That apart, at the time of 
arguments, we had the advantage of going through the original 
records/documents (original/confidential file was produced in the 
Court) which had been placed before the Designated Authority, 
which shows that along with the information provided in the pro 
forma, necessary information with respect to all the 14 parameters 
had been provided by the domestic industry and considered by 
E 
F 
the Designated Authority, after due corrections. In view of the 
foregoing consideration, the argument of the appellant that all 
G 
relevant factors have not been considered has no factual 
foundation. 
36. Otherwise also, we are of the opinion that the scope of the 
review inquiry by the Designated Authority is limited to the 
' (2006) 4 sec 303 
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B 
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
~satisfaction as to whether there is justification for continued 
imposition of such duty on the information received by it. By its 
very nature, the review inquiry would be limited to see as to whether 
the conditions which existed at the time of imposition of anti-
dumping duty have altered to such an extent that there is no longer 
justification for continued imposition of the duty. The inquiry is 
limited to the change in the various parameters like the normal 
value, export price, dumping margin, fixation ofnon-injury price 
and injury to domestic industry. The said inquiry has to be limited 
to the information received with respect to change in the various 
parameters. The entire purpose of the review inquiry is not to see 
whether there is a need for imposition of anti-dumping duty but to 
see whether in the absence of such continuance;,dumping would 
increase and the domestic industry suffers." 
21. The learned Additional Solicitor General also took the aid of 
Section 24 of the General Clauses Act, 1897. Section 24 which deals 
D with continuation of orders issued under enactments repealed and re-
enacted and reads as under: 
E 
F 
G 
H 
"Section 24 -Continuation of orders, etc., issued under enactments 
repealed and re-enacted: 
Where any [Central Act] or Regulation, is, after the 
commencement of this Act, repealed and re-enacted with or 
without modification, then, unless it is otherwise expressly provided
any [appointment notification,] order, scheme, rule, form or bye-
law, [made or] issued under the repealed Act or Regulation, shall, 
so far as it is not inconsistent with the provisions re-enacted, 
continue in force, and be deemed to have been [made or] issued 
under the provisions so re-enacted, unless and until it is superseded 
by any[ appointment notification,] order, scheme, rule, form or bye-
law, [made or] issued under the provisions so re-enacted [and 
when any [Central Act] or Regulation, which, by a notification 
under section 5 or SA of the Scheduled Districts Act, 1874, ( 14 of 
I 87 4) or any like law, has been extended to any local area, has, by 
a subsequent notification, been withdrawn from the re-extended 
to such area or any part thereof, the provisions of such Act or 
Regulation shall be deemed to have been repealed and re-enacted 
in such area or part within the meaning of this Section]. 
'
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
347 
COMPANY LIMITED [A. K. SIKRI, J.] 
22. She also relied upon the judgment in the case of Fibre Boards 
A 
Private Limited, Bangalore v. Commissioner of Income Tax, 
Bangalore7• 
23. Mr. Basava Prabhu Patil, learned senior advocate appearing 
for domestic industry manufacturing the product in-questi011', supported 
the aforesaid submission of the learned Additional Solicitor General. He 
B 
referred to Rule 23(b) of the Rules which, according to him, mandates 
the Designated Authority to initiate sunset review either suo moto or 
upon receipt of a duly substantiated petition. Duly substantiated petition 
implies that the petition should contain sufficient evidence that the 
cessation of anti dumping duty is likely to lead to continuation or recurrence 
of dumping and consequent i1tjury to the domestic industry. In a situation 
C 
where the Designated Authority has initiated the sunset review 
investigation based on duly substantiated petition, it fol lows that the 
Designated Authority is primafacie satisfied that the cessation of anti-
dumping duty is likely to lead to dumping and consequent injury to the 
domestic industry. Under these circumstances, it is imperative that the 
D 
anti-dumping duty continues to remain in force pending outcome of the 
review and there is no room for exercise of any discretion by the Finance 
Ministry under the second proviso to Section 9 A( 5). If the second proviso 
conferred a discretionary
power, it would mean that the Finance Ministry 
would have to apply its mind anp not act mechanically. However, neither 
E 
the second proviso to Section 9A(S) nor Rule 23(1B) of the Rules set 
out any basis or criteria for the Finance Ministry to exercise its discretion 
at the stage of initiation of a sunset review. 
24. He also submitted that the second proviso to Section 9A(S) 
does not contemplate issuance of a notification or order, as is in the case 
of an original levy under Section 9 A( I), or extension of duty for a further 
period of 5 years consequent to a review under the first proviso to 9 A( 5). 
This position is borne out by the Rules, where in respect of duty imposed 
consequent to a determination in an original or review investigation, a 
notification is mandated. The requirement of a notification is found only 
F 
in Rule 18, and Rule 23(3) read with Rule 18, both of which deal with 
G 
duties consequent to an investigation. On the other hand, the second 
proviso to Section 9A(S) provides only that "that anti-dumping duty 
may continue to remain in force pending the outcome of such a 
review for a further period not exceeding one year" and there is no 
7 (2015) IOSCC333 
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A mention of any affirl)lative act by the Central Government or the need 
to issue a notification providing for levy of an anti-dumping duty. 
Therefore, the proviso does not require any positive act, on the part of 
the Central Government. It is the Designated Authority, which has not 
concluded, is sufficient for continuation of the duty for a further period 
B 
c 
not exceeding one year. 
25. On the basis of the aforesaid submissions, plea of Mr. Patil 
was that the word 'may' has to be read as 'shall' because of the reason 
that if interpreted otherwise, it would frustrate the objective of the 
provision, as held in N. Nagendra Rao & Co. v. State of A.P.8 (para 3) 
as well as Dinkar Anna Patil and Anot/1er v. State of Mallaraslltra 
and Others9 (para 26). Mr. Patil also endeavoured to take sustenance 
from the judgement of this Court in Suh-Committee Oil Judicial 
Accountability v. Union of India a1td Another10 wherein this Court 
held that "the enabling words are construed as compulsory whenever 
the object of the power is to effectuate the legal right.. ...... " He 
D specifically relied upon the discussion contained in paras 85 and 86 which 
are to the following effect: 
E 
F 
G 
H 
"35. Use of the word 'may' in clause (5) indicates that for the 
'procedure for presentation ofaddress' it is an enabling provision 
and in the absence of the law the general procedure or that resolved 
by the House may apply but the'
investigation and proof' is to be 
governed by the enacted law. The word 'may' in clause (5) is no 
impediment to this view. 
86. On the other hand, if the word 'shall' was used in place of 
'may' in clause (5) it would have indicated that it was incumbent 
on the Parliament to regulate even the procedure for presentation 
of an address by enacting such a law leaving it no option even in 
the matter of its procedure after the misbehaviour or incapacity 
had been investigated and found true: 
"Sometimes, the legislature uses the word 'may' out of 
deference to the high status of the authority on whom the power 
and the obligation are intended to be conferred and imposed." 
(See: State of UP. v. Jogendra Singh [( 1964) 2 SCR 197)." 
8 (1994) 6 SCC205 
" (1999) 1 sec 354 
10 (1991)4 sec 699
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
349 
COMPANY LIMITED [A. K. SIKRI, J.] 
Indeed, when a provision is intended to effectuate a right -
here 
A 
it is to effectuate a constitutional protection to the Judges under 
A1ticle 124(4)-even a provision as in Article 124(5) which may 
otherwise seem merely enabling, becomes mandatory. The 
exercise of the powers is rendered obligatory. In Frederic Guilder 
Julius v. Right Rev. the Lord Bishop of Oxford; the ReE Thomas 
B . 
Thellusson Carter [(1879-80) SAC 214, 244] Lord Blackburn 
said: 
" ... The enabling words are constmed as compulsory whenever 
the object of the power is to effectuate a legal right." 
26. Without prejudice to the aforesaid contention, Mr. Patil also 
C 
argued the matter from another perspective as well. He contended that 
even if such a Notification was necessary, there was no requirement 
that Notification had to be issued before the expiry of the period specified 
in the original notification. According to him, there is no time limit 
prescribed in the language of the second proviso to Section 9A(S) to 
issue a Notification to extend the anti-dumping duty for a further period 
D 
of one year. In the absence of any prescription that such extension of 
anti-dumping duty must be before expiry of existing anti-dumping duty, 
the same cannot be imposed. The word "continue" cannot be read to 
mean "continue without interruption". The word continue can mean 
both continuation with or without interruption
and considering that the 
E 
Act specifically permits initiation ofinvestigations prior to expiry of duty, 
it follows that the word "continue" under the Act would include 
continuation with a break. 
27. ln support of this contention, he relied upon the decision ofa 
Constitution Bench of this Court in Life Insurance Corporatio11 of India. F 
v. Escorts Ltd. u that in the absence of expression such as "prior" or 
"previous", it cannot be contended that extension ought to have been 
granted before the expiry of the original period. He submitted that when 
a statute enacted in the national economic interest comes up for 
consideration, the traditional norms of statutory interpretation must yield 
to broader notions of national interest and that, therefore, the Court has 
G 
to interpret the statute in tune with the national interest that the statute 
sought to sub-serve. Para 63 reads as follows: 
11 (1986) 1 sec 264 
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· A 
"63. We are conscious that the word "prior" or "previous" may 
be implied if the contextual situation or the object and design of 
the legislation demands it, we find no such compelling circumstances 
justifying reading any such implication into Section 29(1) of the 
Act." 
B 
28. Building on the aforesaid edifice, the learned counsel proceeded 
c 
further to argue that in the instant case, Notification dated January 23, 
2014 was in fact issued. According to him, such a Notification is valid 
and should be treated as effective from January 02, 2014, or else, in any 
case from January 23, 2014 when a Notification was issued. 
29. Mr. V. Lakshmikumaran, Advocate appearing on the other 
side, attempted to justify the order of the High Court on this aspect with 
the reasons which the High Court has assigned in support of its conclusion. 
His argument was that the High Court was right in holding that second 
proviso to Section 9A(S) was only an enabling provision and there could 
D not be automatic extension of anti-dumping duty simply because the 
'sunset review' exercise was initiated by the Government. He further 
submitted thatthe word 'may' cannot and should not be read as 'shall' in 
this case. He pointed out that same provision, i.e., Section 9A had used 
the words 'may' and 'shall' at different places. Whereas sub-section 
E 
.F 
(I) contained the expression 'may', sub-section (5) used the expression 
'shall', while
second proviso was enacted with the stipulation 'may'. 
Likewise, Rule 23(!B) of the Rules used the expression 'shall'. From 
this, argument of Mr. Lakshmikumaran was that Legislature was fully 
conscious as to which provision was to be made mandatory and which 
provision was directory in nature. He also argued that Section 9A was 
added in the Act by way of amendment after the Indian Government 
became signatory to the agreement for implementation of Article VI of 
GATT, popularly known as 'implementation agreement'. It is in the said 
implementation agreement, need for review was contemplated in Articles 
11.1, l I .2 and 11.3 of the implementation agreement which prov is ions 
categorically provided that "the duty may remain in force pending the 
G outcome of such a review" which means it was not obligatory that such 
a duty has to necessarily remain in force during the period when the 
sunset review is to be undertaken. Since, the implementation agreement 
uses the expression 'may' for continuation of duty pending the outcome 
of sunset review, same expression was used in second proviso to Section 
9A(5) of the Act. He also submitted that second proviso uses the language 
H
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
35 l 
COMPANY LIMITED [A. K. SIKRI, J.] 
'the anti-dumping duty' may continue to remain in force pending the 
A 
outcome of such a review for a further period not exceeding one year. 
Laying stress on the words 'for a further period not exceeding one year', 
he argued that it was not necessary that the duty has to be extended for 
a full period of one year and such a period can be shorter one as well, 
i.e., less than a year. This would itself suggest that a Notification is 
mandated to prescribe the actual period which, in no case, can be more 
than one year. He also put emphasis on the word 'continue' in the 
aforesaid expression to argue that it would mean that there should be no 
discontinuance. Predicated on this, submission of Mr. Lakshmikumaran 
was that once the period prescribed by the original Notification expires, 
B 
the right to exercise power under second proviso also comes to an end 
C 
inasmuch as any notification issued after the expiry, and with a gap, 
would not be a case of anti-dumping duty 'continues to remain in force'. 
The learned counsel referred to two judgments in support of his arguments, 
viz. (i) Babu Varghese v. Bar Council of Kera/a11 and Hariva11slt Lal 
Meltra v. State of Maltarashtra13• 
30. 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 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 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 
hearingthe views ofall stakeholders by giving them adequate opportunity 
in this behalf and thereafter arriving at a conclusion that the continuation 
D 
E 
F 
of the anti-dumping duty is justified, otherwise injury to the domestic 
industry is likely to continue or reoccur, ifthe said anti-dumping duty is 
removed or varied. Since this exercise is likely to take some time and 
G 
may go beyond the period stipulated in the original notification imposing 
anti-dumping duty, in order to ensure that there is no vacuum in the 
interregnum, second proviso to sub-section (5) of Section 9A of the Act 
12 (1999) 3 sec 422 
1' (197 I J 2 sec 54 
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[2017] 4 S.C.R. 
A empowers the Central Government to continue the anti-dumping duty 
for a further period not exceeding one year, pending the outcome of 
such a review. The question, however, is as to whether this extension to 
fill the void that may be created during the pendency of the sunset review 
is exercised is automatic, once the decision is taken to have sunset review 
B of the anti-dumping duty or the continuation of such an anti-dumping 
duty has to be by a proper notification. As noted above, the High Court 
has held that second proviso is only an enabling provision and, therefore, 
power vested in the Central Government under the said proviso has to 
be specifically exercised, without which the anti-dumping duty cannot 
continue to remain in force with the lapse of original notification. 
c 
31. After giving due consideration to the arguments advanced by 
the learned counsel for the parties, we are inclined to agree with the 
High Court that proviso to sub-section (5) of Section 9A of the Act is an 
enabling provision. That is very clear from the language of the said 
provision itself. Sub-section (5) of Section 9A gives maximum life of 
D five years to the imposition of anti-dumping duty by issuing a particular 
notification. Of course, this can be extended by issuing fresh notification. 
However, the words 'unless revoked earlier' in sub-section (5) clearly 
indicate that the period of five years can be curtailed by revoking the
imposition of anti-dumping duty earlier. Of course, provision for review 
E 
F 
is there, as mentioned above, and the Central Government may extend 
the period if after undertaking the review it forms· an opinion that 
continuation of such an anti-dumping duty is necessary in public interest. 
When such a notification is issued after review, period of imposition gets 
extended by another five years. That is the effect of first proviso to 
sub-section (5) of Section 9A. However, what we intend to emphasise 
here is that even as per sub-section ( 5) it is not necessary that in all 
cases anti-dumping duty shall be imposed for a full period of five years 
as it can be revoked earlier. Likewise, when a review is initiated but 
final conclusion is not arrived at and the period of five years stipulated in 
the original notification expires in the meantime, as per second proviso 
'the anti-dumping duty may continue to remain in force'. However, it 
G cannot be said that the duty would automatically get continued after the 
expiry of five years simply because review exercise is initiated before 
the expiry of the aforesaid period. It cannot be denied, which was not 
even disputed before us, that issuance of a notification is necessary for 
extending the perio? of anti-dumping duty. Reason is simple. There no 
H
UNION OF INDIA v. J/s. KUMHO PETROCHEMICALS 
COMPANY LIMITED [A. K. SIKRI, J.] 
353 
duty or tax can be imposed without the authority of' law'. Here, such a A 
law has to be in the form of an appropriate notification and in the absence 
thereof the duty, which is in the form of a tax, cannot be extracted as, 
otherwise, it would violate the provisions of Article 265 of the Constitution 
of India. As a fortiorari, it becomes apparent that the Government is to 
exercise its power to issue a requisite notification. In this hue, the 
B 
expression 'may' in the second proviso to sub-section (5) has to be read 
as enabling power which gives discretion to the Central Government to 
determine as to whether to exercise such a power or not. It, thus, 
becomes an enabling provision. 
32. We are conscious of the fact that once sunset review is 
initiated, such initiation takes place only after a substantiated application/ c 
request is filed by the indigenous industry which is examined and a prima 
facie view is formed by the Central Government to the effect that such 
a review is necessitated as withdrawal of anti-dumping duty or cessation 
thereof may be prejudicial to the indigenous industry. Once such an 
opinion is formed and the sunset review is initiated, in all likelihood the 
D 
Central Government would make use of second proviso and issue 
notification for continuing the said anti-dumping duty. At the same time, 
it cannot be said that without any overt act on the pait of the
Central 
Government, there is an automatic continuation. The learned counsel 
for respondent rightfully pointed out that the legislature has consciously 
used the expression 'may' and 'shall' at different places in the same 
Section, i.e., Section 9A of the Act. In such a scenario, it has to be 
presumed that different expressions were consciously chosen by the 
Legislature to be used, and it clearly understood the implications thereof, 
therefore, when the word 'may' is used in the same Section in 
contradistinction to the word '.shall' at other places in that very Section, 
it is difficult to interpret the word 'may' as 'shall'. Therefore, it is difficult 
to read the word 'may' as 'shall'. Our conclusion gets strengthened 
when we keep in mind following additional factors: 
33. The anti-dumping duty may continue, pending the outcome of 
E 
F 
the review, for a further period not exceeding one year. Thus, maximum 
G 
period of one year is prescribed for this purpose which implies that the 
period can be lesser as well. The Government is, thus, to necessarily 
form an opinion as to for how much period it wants to continue the anti-
dumping duty pending outcome of such a review. Moreover, since the 
maximum period is one year, if the review exercise is not completed 
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A within one year, the effect of that would be that after the lapse of one 
year there would not be any anti-dumping duty even if the review is 
pending. In that eventuality, it is only after the review exercise is complete 
and the Central Government forms the opinion that the cessation of 
such a duty is likely to lead to continuation or recurrence of dumping and 
B 
c 
injury, it would issue a notification extending the period of imposition of 
duty. Therefore, there may be a situation where everi when the power 
is exercised under second proviso and duty period extended by full one 
year, the review exercise could not be completed within that period. ln 
that situation, vacuum shall still be created in the interregnum beyond 
the period of one year and till the review exercise is complete and fresh 
notification is issued. This situation belies the argument that extension 
under second proviso is to be treated as automatic to avoid the hiatus or 
vacuum in between. 
34. Judgment in the case of Risltiroop Polymers (P) Ltd. has no 
application to the issue whi.ch we are dealing with, namely, interpretation 
D of second proviso to sub-section (5) of Section 9A. The said judgment 
only deals with the nature of review exercise that has to be undertaken 
and mentions that the entire purpose for the review investigation is not 
to see whether there is a need for imposition of anti-dumping duty but to 
see whether in the absence of
such continuance, dumping would increase 
and the domestic industry suffers. In fact, even in the instant case, 
E review exercise was completed much after the expiry of one year from 
the date when the earlier notification, on completion of five years term, 
came to an end. Likewise, the reliance on Section 24 of the General 
Clauses Act, 1897 is also of no consequence. This provision concerns 
with the orders, etc. which have already been issued under some 
F enactments and in the meantime those enactments are repealed or re-
enacted. In those situations, Section 24 of the General Clauses Act 
provides that such orders and regulations issued under the old Act would 
remain in force so far as they are not inconsistent with the provisions of 
the re-enacted Act. Such a provision again has no relevance with the 
issue which we are dealing with. Since judgment in the case of Fibre 
G Boards Private Limited, Bangalore concerns with the interpretation 
of Section 24 of the General Clauses Act, that also would be of no help. 
35. With this, we advert to the second facet of the argument, 
namely whether it was permissible for the Central Government to issue 
Notification dated January 23, 2014 thereby extending the va:idity of 
H
UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
355 
COMPANY LIMITED [A. K. SIKRI, J.] 
duty by one year, i.e. after the period of earlier Notification came to an 
A 
end on January OJ, 2014? If so, whether this Notification would take 
effect from January 0 I, 2014 or January 23, 2014? 
36. As noticed above, the High Court has held that once the earlier 
Notification by which anti-dumping duty was extended by five years, 
i.e. up to January 0 l, 20 14, expired, the Central Government was not 
B 
empowered to issue any Notification after the said date, namely, on 
January 23, 2014, inasmuch as there was no Notification in existence. 
the period whereof could be extended. The High Court, in the process, 
has also held that the Notification extending anti-dumping duty by five 
years, i.e. up to January 0 l, 2014 was in the nature of temporary legislation 
and validity thereof could be extended, in exercise of powers contained 
C 
in second proviso to sub-section (5) of Section 9A of the Act only before 
January 01, 2014. 
3 7. We do not find any infirmity in the aforesaid approach of the 
High Court in interpreting the second proviso to Section 9A(5) of the 
Act. The High Court has rightly interpreted the aforesaid provision in 
D 
the light of Article 11.1, 11.2 and 11.3 of. the Agreement for 
Implementation and Article VI of the GATT, commonly known as 
'Implementation Agreement'. These clauses read as under: 
"11.1 An anti-dumping duty shall remain in force only as long as
and to the extent necessary to counteract dumping which is causing 
injury. 
E 
11.2 The authorities shall review the need for the continued 
imposition of the duty, where warranted, on their own initiative or, 
provided that a reasonable period of time has elapsed since the 
imposition of the definitive anti-dumping duty, upon request by 
F 
any interested party which submits positive information 
substantiating the need for a review. Interested parties shall have 
the right to request the authorities to examine whether the 
continued imposition of the duty is necessary to offset dumping 
whether the injmy would be likely to continue or recur ifthe duty 
G 
were removed or varied, or both. If, as a result of the review 
under this paragraph, the authorities determine that the anti-
dumping duty is no longer warranted, it shall be terminated 
immediately. 
11.3 Notwithstanding the provisions of paragraphs I and 2, any 
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[2017] 4 S.C.R. 
definite anti-dumping duty shall be terminated on a date not later 
than five years from its imposition (or from the date of the most 
recent review under paragraph 2 if that review has covered both 
dumping and injury, or under this paragraph), unless the authorities 
determine, in a review initiated before that date on their own initiate 
or upon a duly substantiated request made by or on behalf of the 
domestic industry within a reasonable period of time prior to that 
date, that the expiry of the duty would be likely to lead to 
continuation of recurrence of duping and injury. The duty may 
remain in force pending the outcome of such a review." 
38. Obviously, sub-section (5) of Section 9A is in tune with the 
aforesaid Articles of Implementation Agreement and is to be interpreted 
in that hue. 
39. India is a signatory to the Marrakesh Agreement establishing 
the World Trade Organization in 1994. Pursuant to this, it has implemented 
the Agreement on Implementation of Article VJ of the GATT 1994 
D referred to as the Anti-dumping Agreement (ADA), which is one of the 
Agreements that forms part of the WTO treaty. In terms of Article 18.4 
of the ADA, each Member country is required to ensure the conformity 
of its laws, regulations and administrative procedures with the provisions 
of the ADA. As a consequence, Sections 9A, Section 9AA, Section·9B 
E and Section 9C of the Act were enacted. 
40. Two things which follow
from the reading of the Section 9A(S) 
of the Act are that not only the continuation of duty is not automatic, 
such a duty during the period of review has to be imposed before the 
expiry of the period of five years, which is the life of the Notification 
F 
imposing anti-dumping duty. Even otherwise, Notification dated January 
23, 2014 amends the earlier Notification dated January 02, 2009, which 
is clear from its language, and has been reproduced above. However, 
when Notification dated January 02, 2009 itself had lapsed on the expi1y 
of five years, i.e. on January 01, 2014, and was not in existence on 
January 23, 2014 question of amending a non-existing Notification does 
G not arise at all. As a sequitur, amendment was to be carried out during 
the lifetime of the Notification dated January 02, 2009. The High Court, 
thus, rightly remarked that Notification dated January 02, 2009 was in 
the nature of temporary legislation and could not be amended after it 
lapsed. 
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UNION OF INDIA v. M/S. KUMHO PETROCHEMICALS 
357 
COMPANY LIMITED [A. K. SIKRI, J.] 
41. For this reason, plea taken by the Union of India and the 
A 
domestic industry in their appeals has to fail. Consequently, their appeals 
are also dismissed. 
Nidhi Jain 
Appeals dismissed.