Full Text
HIGH COURT OF DELHI
W.P.(C) 1501/2022, CM APPL. 4285/2022
SHANGHAI JA SOLAR TECHNOLOGY CO. LTD ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2.
TRINA SOLAR CO. LTD. AND ANR ..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates.
Through: Mr. Vineet Dhanda, CGSC for UOI.
Mr.Sanam Siddiqui, GP with Ms.Ruchika Joshi, Advs. for UOI.
JINGAO SOLAR CO. LTD. ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
JA SOLAR INTERNATIONAL LIMITED ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi,Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3
HEFEI JA SOLAR TECHNOLOGY CO. LTD. ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
2022:DHC:1429-DB
JA SOLAR (XINGTAI) CO. LTD. ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
JA SOLAR TECHNOLOGY YANGZHOU CO. LTD. .... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to3.
GUANGDONG AIKO SOLAR ENERGY TECHNOLOGY CO LTD
AND OTHERS ..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2
YINGLI ENERGY CHINA COMPANY LIMITED AND OTHERS . ..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and Mr. Hussain Taqvi, Advs. for R-1 & 2.
HENGDIAN GROUP DMEGC MAGNETICS CO LTD..... Petitioner
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2
SUZHOU TALESUN SOLAR TECHNOLOGIES CO. LTD. AND
ANR. ..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2.
HUANSHENG PHOTOVOLTAIC (JIANGSU) CO., LTD. AND
OTHERS ..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2.
RISEN ENERGY (CHANGZHOU) CO., LTD. AND ORS. ..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi,Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2.
2022:DHC:1429-DB
TONGWEI SOLAR (CHENGDU) CO., LTD AND OTHERS..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2.
LONGI SOLAR TECHNOLOGY CO. LTD. ..... Petitioner
Through: Ms. Shiraz Patodia, Mr. Ashish Singh, Ms. Divya Sharma, Advs .
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and Mr. Hussain Taqvi, Advs. for R-1 & 2.
WUXI SUNTECH POWER CO LTD ..... Petitioner
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi,Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
2022:DHC:1429-DB
CANADIAN SOLAR MANUFACTURING CHANGSHU INC..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to3
CANADIAN SOLAR INTERNATIONAL LIMITED..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
CANADIAN SOLAR MANUFACTURING (THAILAND)
COMPANY LIMITED ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava 2022:DHC:1429-DB
Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi,Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
CSI MODULES DAFENG COMPANY LIMITED ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
CSI CELLS CO. LIMITED ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi, Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 to 3.
JIANGSU ZHONGYU PHOTOVOLTAIC TECHNOLOGY CO LTD & ORS. ..... Petitioners
Through: Mr.Gaurav Duggal and Mr.Sarad Kumar Sunny, Advocates
Through: Mr. Asheesh Jain, CGSC with Mr. Jitendra Kumar Tripathi,Mr. Adarsh Kumar Gupta, Mr. Keshav Mann and
Mr. Hussain Taqvi, Advs. for R-1 & 2.
CANADIAN SOLAR MANUFACTURING VIETNAM COMPANY LIMITED ..... Petitioner
Through: Mr. Kamal Sawhney, Mr. Krishna Rao, Mr. Dhruv Gupta, Mr. Bhargava Mansatta, Ms. Anishika Gupta, Mr. Vinayak Mathur and Mr. Ankit Sachdeva, Advs.
Through: Mr. Asheesh Jain, CGSC with Mr.Adarsh Kumar Gupta, Mr Keshav
Mann and Mr. Jitendra Kumar Tripathi, Adv. for UOI.
2022:DHC:1429-DB
Date of Decision: 19th April, 2022
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
JUDGMENT
1. By way of the present writ petitions, the petitioners seek directions to the respondents to take their responses to the questionnaires on record and consider the data comprising of the facts and figures stated therein as well as the documents and other materials filed along with the said response before arriving at any finding in the anti-dumping investigation initiated vide Notification dated 15: th
2. Mr. Kamal Sawhney, Mr. Gaurav Duggal and Mr. Ashish Singh, learned counsel for the petitioners state that anti-dumping investigation in respect of import of solar cells whether or not assembled into modules/panels originating in or exported from China PR/Thailand and Vietnam were initiated vide notification dated 15 May, 2021. th May, 2021 and the petitioners were asked to file their replies to the questionnaires on or before 24th “ June, 2021. The relevant portion of the Initiation Notification is reproduced hereinbelow:-
20. In view of the special circumstances arising out of COVID-19 pandemic, all communication should be sent to the Designated Authority via email at email addresses
25. Any information relating to the present investigation should be sent to the Designated Authority via email at the email addresses
26. All the interested parties are hereby advised to intimate their interest (including the nature of interest) in the instant matter and file their questionnaire responses within the above time limit.”
3. They state that due to Covid-19 pandemic, the replies were delayed and were filed between 25th June, 2021 and 21st
4. Learned counsel for the petitioners states that the Initiation Notification dated 15 July, 2021. th May, 2021 was challenged before this Court by an association of importers in Solar Power Developers Association vs. Union of India & Ors., W.P.(C) 5882/2021 and this Court vide order dated 04th June, 2021 had extended the time limit to file response to the Initiation Notification. They state that the time limit, so extended, was for the benefit of all the interested parties and was not restricted only to the petitioners therein. The relevant portion of the order dated 4th June, 2021 passed in W.P.(C) 5882/2021 is reproduced hereinbelow:-
5. Learned counsel for the petitioners submit that the aforesaid order dated 4th
6. Learned counsel for the petitioners further state that the respondents have the power to condone delay in filing responses to the questionnaires if sufficient cause is shown. In support of their contention, they rely on Rule 6(4) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for short ‘Anti Dumping Rules’). The relevant portion of the said Rule is reproduced hereinbelow: June, 2021 is an order in rem. They state that this fact is established beyond doubt as the order itself states that the time limit provided in Para 25 of the Initiation Notification for filing information stands extended. “RULE 6. Principles governing investigations. - (1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:-
(i) the name of the exporting country or countries and the article involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the application;
(iv) a summary of the factors on which the allegation of injury is based;
(v) the address to which representations by interested parties should be directed; and
(vi) the time-limits allowed to interested parties for making their views known.
xxxx xxxx xxxx xxxx (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown.”
7. They further state that the respondents have granted extension of time to file responses to the questionnaires in all the other twenty nine antidumping investigation initiated on imports from China PR during the period 01st January, 2020 to 31st September, 2021 which is evident from the table below:- Particulars Number of anti-dumping investigations against China PR Number of anti-dumping investigations in which extension requested by interested parties Number of anti-dumping investigations in which extension granted by Authority Number of anti-dumping investigations in which extension denied by the Authority 1 (Anti-dumping investigation on imports of solar cells whether or not assembled into modules from China PR, Thailand and Vietnam)
8. They also state that repeated extensions have been granted to file responses to questionnaires in anti-dumping investigations on imports from China PR. The tabular chart referred to by learned counsel for the parties is reproduced hereinbelow:- Total extensions granted Number of cases One extension 9 Two extensions 12 Three extensions 4 Four extensions 2 Five extensions 1 Six extensions 1 Total 29
9. They further rely upon the order passed by the Apex Court extending the period of limitation in Re: Cognizance for extension of limitation, Suo Motu Writ Petition (C) No. 3 of 2020.
10. Per contra, Mr. Asheesh Jain, learned counsel for the respondents states that the decision of this Court in Solar Power Developers Association (supra) was an order in personam and not an order in rem. He draws this Court’s attention to the respondent’s letter and clarification rejecting petitioners request for extension of time. The respondent’s letters dated 24th June, 2021 and 16th December, 2021 are reproduced hereinbelow:-
2. The Authority keeping in view the factual matrix of this original investigation has not deemed it appropriate to extend the last date for filing of responses except for the specific relief granted by the Hon’ble Delhi High Court. Sd/ Garima Kapoor Deputy Director”
2021. A number of interested parties have requested the Authority to accept the delayed responses during the oral hearing held on 17th November
2021. This clarification is in response to those submissions.
2. The Authority initiated an anti-dumping investigation concerning ‘solar cells whether or not assemble into modules or panels’ vide an initiation notification dated 15th May 2021. The Authority had granted time to file questionnaire responses by 24th June 2021. On receipt of request for extension of the said timelines from other interested parties, the Authority did not extend the timeline to file the questionnaire responses. The Authority noted that the Hon’ble High Court of Delhi granted extended time to file responses only to the petitioners before them. A clarification was issued with respect to the same on the DGTR’s official website on 24th
11. He further states that Rule 17 of Anti Dumping Rules provides that the Designated Authority “shall”, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India. He further states that the first proviso to Rule 17 permits the extension of period of one year only in special circumstances leaving it to the discretion of the Central Government to June 2021. Despite the same several parties did not file the response in time.
3. The Authority has decided to consider only those questionnaire responses which were filed within the stipulated time. However, the legal submissions made by all the interested parties who registered and file the same in time has been considered. The status of questionnaire responses (considered/ not considered) by the Authority are mentioned in the Annexure. Garima Kapoor (Deputy Director)” extend the time limit for a maximum period of six months. He also states that the Rules provide for extension of timeline for acceptance of responses only if “sufficient reason” is provided for the same which was not the case in the present matters. He emphasises that similarly placed parties had filed their responses to the questionnaires within the time period prescribed. He contends that if extension of time is granted in the present batch of matters it would lead to an unending process and the anti-dumping investigation would never conclude.
12. He lastly states that the reliance of the petitioner on the order passed by the Supreme Court in Re: Cognizance for extension of limitation, Suo Motu Writ Petition (C) No. 3 of 2020 is misplaced. He states that the Supreme Court in Sagufa Ahmed & Ors. Vs. Upper Assam Plywood Products Pvt. Ltd. & Ors. (2021) 2 SCC 317 has succinctly outlined that the order extending limitation was intended to benefit the vigilant litigant who were prevented due to the pandemic and the lockdown from initiating proceedings within the period of limitation prescribed by general or special law.
13. Having heard learned counsel for the parties, this Court is of the view that the order dated 4th
14. However, this Court is of the view that since in an anti-dumping investigation, the respondent has to pass a single consolidated order after hearing the exporters as well as the importers and the time limit for filing of objections by the importers had been extended by this Court vide order June, 2021 is an order in personam as the relief had been extended by this Court to enable the petitioners therein (importers) to place information before the Designated Authority and not the petitioners herein (exporters). dated 4th June, 2021 beyond the next date of hearing i.e, 19th July, 2021, no useful purpose would be served by foreclosing the right of the exporters, i.e. the petitioners herein from filing their responses till 21st
15. Consequently, the responses filed by the petitioners between 25 July, 2021. th June, 2021 and 31st
16. It is clarified that the order has been passed in the peculiar facts and circumstances of the present case. July, 2021 are directed to be taken on record subject to the payment of costs of Rs.1,00,000/- by each of the petitioners to Armed Forces Battle Casualties Welfare Fund, Account No.90552010165915, Canara Bank, Branch-South Block, Defence Headquarters, New Delhi- 110011 within four weeks. MANMOHAN, J DINESH KUMAR SHARMA, J APRIL 19, 2022 AS