Judgment DEVADHAR. J. P. , J. ( 1 ) THE petitioners who are engaged in the manufacture of vitrified/porcelein tiles in India has challenged the validity of the notifications dated 23rd May, 2003 and 1st July, 2003 whereby a new shipper review to determine a separate margin of dumping in respect of the goods of a producer from China has been initiated and during the pendency of the said new shipper review the goods of that producer is allowed to be cleared in to the Indian Market on provisional assessment without payment of anti-dumping duty. The main grievance of the petitioners is, firstly, the initiation of new shipper review by the designated authority is in mala fide exercise of powers, because, the anti-dumping duty on exports of vitrified/porcelein tiles of Chinese origin exported from China and UAE (subject goods for short) has been levied on 1st May, 2003 after two years of investigation and within 22 days, the said anti-dumping duty has been suspended by the impugned notifications with a view to unduly favour a Chinese producer at the cost of violating the statutory Rules which permits only a periodic review. Secondly, the new shipper review has been initiated without even conducting any preliminary investigation to ascertain as to whether the conditions precedent for invoking the new shipper review under Rule 22 have been fulfilled or not and thirdly, by permitting clearance of the subject goods during the new shipper review without payment of anti-dumping duty serious injury would be caused to the domestic industry including the petitioners. ( 2 ) BEFORE dealing with the facts of the case, it would be appropriate to briefly refer to the history and the law relating to anti-dumping duty. ( 3 ) THE concept of global economy though mooted by some countries in the year 1947, it gathered momentum in the year 1994 when Compension General Agreement on Tariffs and Trade (GATT 1994) was arrived at by as many as 118 member countries. Thereafter, the World Trade Organisation (W. T. O.) was established on 1st January, 1995 by 104 members nations of GATT. With the formation of the W. T. O. GATT 1994 became part of the W. T. O. chater of agreements. Thereafter, the World Trade Organisation (W. T. O.) was established on 1st January, 1995 by 104 members nations of GATT. With the formation of the W. T. O. GATT 1994 became part of the W. T. O. chater of agreements. The main object of the W. T. O. inter alia is to play the role of a watchdog and provide the common institutional frame work for the conduct of trade relations among its members in matters related to the agreements and associated legal instruments so as to achieve greater coherence in global economic policy making. India is one of the founder members of the w. T. O. In the Uruguay round of talks the members of the W. T. O. agreed to remove quantitative restrictions on imports from one member country in to another so that the trade could flow without hindrance. It was agreed that the tariff rates and border treatment shall be made more and more predictable and uniform by member country within the stipulated time. Thus, with the globalisation, the Trade and Commerce which was hits to controlled and monitored by the respective Government, has opened up and with more and more countries being signatory to the global economy, the entire planet earth has become a market place for trade and commerce. ( 4 ) FREE flow of trade on account of globalisation had certain demerits too. More efficient producers world over would export goods at far cheaper prices than prevailing in the domestic market of the importing country thereby threatening the very survival of the domestic industry. If the domestic industry of the importing country collapses, there would be unemployment and economic unrest which would be detrimental to the interests of the Importing member country. Article VI of GATT 1996 took care of such an eventuality by permitting the member countries to take trade protection measures such as levy of anti-dumping duties, grant of subsidies and countervailing measures and safeguard measures etc. ( 5 ) IN compliance with its commitment to the W. T. O. the Government of india has taken steps, to streamline the tariff rates and has suitably enacted trade protection measures to safeguard the domestic industry in India. Section 6 of the Customs Tariff Act, 1975 (C. T. A.) empowers the Central Government to levy protective duties on certain goods imported in to India. Section 6 of the Customs Tariff Act, 1975 (C. T. A.) empowers the Central Government to levy protective duties on certain goods imported in to India. Sections 8 and 8-A of the C. T. A. deal with the Emergency power of Central Government to increase or levy export duties or import duties. Section 8-B deals with the power of the Central Government to impose safeguard duty. Section 8-C empowers the Central Government to impose transitional product specific safeguard duty on imports from the Peoples Republic of China. Section 9 deals with the countervailing duty on subsidized articles. Sections 9-A, 9-AA, 9-B and 9-C deal with anti-dumping duty on dumped articles. ( 6 ) GENERALLY, a product is said to have been dumped if it is introduced into the commerce of another country at less than the normal value of the product and it causes/threatens material injury to the established domestic industry of that country. In order to offset or prevent dumping, Article VI of the GATT provides that the importing country may levy anti-dumping duty on any product not greater than the margin of dumping. To illustrate, if a camera is exported from China to India, whose export price at the ex-works level is US $100/- and the domestic selling price of the camera within China at exworks level is US $ 125/-, then the export price being less than the domestic selling price, it is said that China is dumping the camera into India with dumping margin of US $ 25/- and under section 9-A of the CTA, anti-dumping duty to the extent of US $ 25 can be levied. ( 7 ) FINDING determination of margin of dumping, in relation to any article, the Central Government under section 9-A (2) of the CTA is empowered to impose provisional anti-dumping duty on the basis a provisional estimate and on final determination the anti-dumping duty is levied under section 9-A (l) of the CTA. If the final anti-dumping duty levied is less than the provisional duty levied and paid, then the differential amount is refundable under section 9-AA. The final anti-dumping duty imposed under section 9-A (l) of the C. T. A. , ordinarily ceases on the expiry of 5 years from the date of imposition unless revoked earlier. If the final anti-dumping duty levied is less than the provisional duty levied and paid, then the differential amount is refundable under section 9-AA. The final anti-dumping duty imposed under section 9-A (l) of the C. T. A. , ordinarily ceases on the expiry of 5 years from the date of imposition unless revoked earlier. If the Central Government on a review, finds that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, then under section 9-A (5) the Central Government can from time-to-time extend the period of such imposition for a further period of five years. Under section 9-C of C. T. A. an appeal against the order of determination of anti-dumping duty or against the order on review lies to CESTAT. ( 8 ) THE procedure for investigating determining, levying and collecting antidumping duties are contained in Customs Tariff (Identification, Assessment and collection of Anti-dumping duty on Dumped Articles and for determination of injury) Rules, 1995 (1995 Rules for short ). The Designated Authority (da for short) on an application made by the domestic industry in India, is empowered to initiate investigation into the alleged dumping of goods into India from specified countries. On such initiation the DA calls for information and particulars from the exporters, importers and other domestic industries to ascertain the margin of dumping. Based upon such information and particulars received and such other confidential information, the DA records its preliminary findings as to whether there is dumping of goods into India or not. Based on the preliminary findings and the recommendations of the DA the Central government may under Rule 13 read with section 9-A (2) of the C. T. A. levy provisional anti-dumping duty valid for a period of six months, which upon the request of the exporters is extendable to nine months. Rule 17 provides that the DA shall submit final findings to the Central Government within one year from the date of initiation of investigation. Rule 18 empowers the Central government to levy final anti-dumping duty based on the recommendations of the DA contained in its final findings. Rule 21 provides for refund of antidumping duty if the final anti-dumping duty levied is less than the provisional anti-dumping duty levied. Rule 18 empowers the Central government to levy final anti-dumping duty based on the recommendations of the DA contained in its final findings. Rule 21 provides for refund of antidumping duty if the final anti-dumping duty levied is less than the provisional anti-dumping duty levied. ( 9 ) IF a product is subject to anti-dumping duties, then under Rule 22, the designated authority is empowered to carry out periodical review to determine the individual margin of dumping for any exporter or producer in the exporting country who had not exported the product to India during the period of investigation and who are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product. Rule 22 which is relevant for the present petition reads as under: "2. Margin of dumping for exporters not originally investigated. If a product is subject to anti-dumping duties, the designated authority shall carry out a periodical review for the purpose of determining individual margins of dumping for any exporters or producers in the exporting country in question who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product. (2) The Central Government shall not levy anti-dumping duties under subsection (1) of section 9-A of the Act on imports from such exporters or producers during the period of review as referred to in sub-rule (1) of this Rule:provided that the Central Government may resort to provisional assessment and may ask a guarantee from the importer if the designated authority so recommends and if such a review results in a determination of dumping in respect of such products or exporters, it may levy duty in such cases retrospectively from the date of the initiation of the review. " (Emphasis supplied)Thus, Rule 22 (1) permits periodic review at the instance of an exporter or producer in the exporting country, provided that exporter or producer had not exported the product to India during the period of original investigation and is not related to any of the exporters or producers in the exporting country who are subjected to anti-dumping duty. This periodic review under Rule 22 is popularly known as new shipper review. This periodic review under Rule 22 is popularly known as new shipper review. Rule 22 (2) provides that the Central Government shall not levy anti-dumping duties under section 9-A (l) of the C. T. A. in respect of subject goods of the exporters or producers who are subjected to new shipper review under Rule 22 (1 ). However, proviso to Rule 22 (2) provides that the Central Government may resort to provisional assessment and may ask for a guarantee from the importer if the DA so recommends. Rule 23 deals with the general review. Under Rule 23, the DA from time-to-time is required to review the need for the continued imposition of the anti-dumping duty and if satisfied recommend for its withdrawal. In this petition, we are concerned with the validity of the initiation of new shipper review under Rule 22. ( 10 ) WITH this background let us now turn to the facts of the present case. Pursuant to complaint made by the domestic industries including the petitioner herein, to the effect that the subject goods from China and U. A. E. are dumped into India, the DA under the 1995 Rules issued a notification on 6th august, 2001 initiating anti-dumping duty investigation for the period from 1st April, 2000 to 31st March, 2001. The preliminary findings recorded by the da on investigation were published on 3rd December, 2001. The conclusions drawn in the preliminary findings were that (a) the subject goods originating in/or exported from U. A. E. and China have been exported to India below the normal value, resulting in dumping, (b) the Indian industry had suffered material injury, (c) the injury has been caused cumulatively by the imports from the subject countries. By the said preliminary findings, the DA recommended imposition of provisional anti-dumping duty, pending final determination on all imports of subject goods originating in or exported from U. A. E. and China. Accordingly, by a Notification No. 50 of 2002 issued on 2nd May, 2002, the Government of India in exercise of its powers under section 9-A (2) of the CTA levied provisional anti-dumping duty on the subject goods originating in or exported from China and U. A. E. at the rate to be calculated at the difference between US $ 13. 62 per square metre and the landed value of such imported subject goods in US $ per square metre. 62 per square metre and the landed value of such imported subject goods in US $ per square metre. The provisional anti-dumping duty levied under the said notification was to be effective up to 1st November, 2002. ( 11 ) DURING the pendency of the investigation and determination of the margin of dumping, the respondent No. 4 (nanhai for short) producer/new shipper from China made an application dated 6th September, 2002 seeking new shipper review under Rule 22 of 199. 5 Rules inter alia on the ground that it had not exported the subject goods during the period of 1st April, 2000to 31st March, 2001 which was the period being investigated and that Nanhai is not related to any of the exporters or producers from China who may have exported the subject goods to India. In the said application, it was stated that the price at which they have contracted to supply goods to India through their agent/distributor M/s. Prestige General Trading in U. A. E. (prestige for short) is the general price prevailing in the market. Nanhai, further requested the da to recommend to the Central Government not to levy the anti-dumping duty on the subject goods till the conclusion of the new shipper review. On 20th September, 2002 the DA initiated a new shipper review in the case of nanhai/prestige by stating that the conditions set out in Rule 22 have been complied with an recommended for provisional assessment of the subject goods produced by Nanhai and exported by Prestige till the review is completed. However, the said new shipper review was terminated on 12th January, 2003 as the Central Government by its letter dated 11th December, 2002 informed the DA that the provisional anti-dumping duty levied under section 9-A (2) cannot be exempted on initiation of new shipper review under Rule 22. In other words, the Government clarified that the new shipper review could be initiated only after the final anti-dumping duty is levied under section 9-A (l) of the Customs Tariff Act, 1975 and not during the pendency of the investigation when the provisional anti-dumping duty under section 9-A (2) of the Customs tariff Act is in operation. ( 12 ) ON completion of the anti-dumping investigation the DA submitted its final findings on 4th February, 2003. ( 12 ) ON completion of the anti-dumping investigation the DA submitted its final findings on 4th February, 2003. In the final findings, it was recorded that the market share of subject imports in 2000 and 2001 have gone up by 71% and that the growth of imports within the period of investigation is a sufficient indicator of the injury to the domestic industry. It was also found that the market share of imports from China and U. A. E. is 3. 66% which is on the higher side. It was further concluded in the final findings that the subject goods exported to India from U. A. E. and China were below its normal value and as a result of dumping of the subject goods the Indian industry had suffered material injury and accordingly recommended anti-dumping duty on all export of subject goods from China at 8. 28 US $ per square metre. The DA recommended anti-dumping duty on RAK Ceramics from U. A. E. at 0. 74 US $ per square metre and all other exporters from U. A. E. at 5. 54 US $ per square metre. The Central Government accepted the final findings of the DA and by a Notification No. 73/2003 dated 1st May, 2003 levied final anti-dumping duty on subject goods under section 9-A (l) of the CTA read with Rules 18 and 20 of the 1995 Rules as follows: china All exporters 8. 28 US $ per square metre. U. A. E. RAK Ceramics 0. 74 US $ per square metre. All others 5. 54 US $ per square metre. ( 13 ) IN the meanwhile, on publication of final findings, Nanhai, by their advocates letter dated 15th March, 2003 submitted their second new shipper review application dated 28th February, 2003 to the DA once again stating therein that they had not exported goods to India during the period of investigation from April, 2000 to March, 2001, that they are not related to any other exporter or producer from China who may have exported the subject goods to India and that the price at which the Nanhai contracted to supply subject goods is the general price prevailing in the market. It was further stated that the price of the subject goods agreed to be sold in India through their agents M/s. Prestige, prima facie do not show any dumping and as all conditions laid down in Rule 22 are complied with, new shipper review be initiated and pending determination of separate margin of dumping, the anti-dumping duty be suspended in respect of the subject goods produced by Nanhai. ( 14 ) ON 23rd May, 2003, the DA initiated a new shipper review on the request of Nanhai as producer and Prestige as exporter, on the ground that nanhai has furnished prima facie evidence to show that the conditions set out in Rule 22 are satisfied and accordingly recommended to the Central Government that the export of subject goods made by Nanhai as producer and Prestige as exporter of into india be permitted to be cleared on provisional assessment basis till the new shipper review for the period of investigation i. e. 1st july, 2002 to 30th June, 2003 is completed. It was further stated that the exporters and importers known to be concerned with the subject goods as well as the domestic industry are being called upon to submit relevant information and to make their views known to the DA. On 4th June, 2003 the director General of anti-dumping and allied duties addressed letters to all the domestic industries including the petitioners herein calling upon them to submit their say regarding the margin of dumping to be determined in respect of the goods produced by Nanhai. By their letter dated 18th June, 2003, addressed to the Central Board of Excise and Customs as well as the Government of india the petitioners objected to the initiation of new shipper review within 22 days of levying final anti-dumping duty. The petitioners contended that when the final anti-dumping duty was levied on 1st May, 2003, it was not open to the designated authority to initiate new shipper review within 22 days, because, periodic review under Rule 22 can only be either after six months or after one year of levying final anti-dumping duty. The petitioners contended that when the final anti-dumping duty was levied on 1st May, 2003, it was not open to the designated authority to initiate new shipper review within 22 days, because, periodic review under Rule 22 can only be either after six months or after one year of levying final anti-dumping duty. However, by a notification No. 98 of 2003 dated 1st July, 2003 the Central Government under Rule 22 (2) directed that pending the investigation under new shipper review, clearance of subject goods produced by Nanhai and exported by Prestige, shall be on provisional assessment basis with such security and guarantee as the customs Authorities deem fit. Challenging the said Notification dated 23rd May, 2003 initiating new shipper review and the Notification dated 1st July, 2003 suspending the anti-dumping duty on the subject goods produced by nanhai during the new shipper review the present petition is filed. We have permitted M/s. NITCO Tiles Limited, who are the importers of the subject to be impleaded as interveners. ( 15 ) MR. Hidaytullah, learned Senior Advocate appearing for the petitioners submitted that the impugned Notification dated 23rd May, 2003 and 1st July, 2003 have been issued in mala fide exercise of power of the following grounds:- A) Within 22 days of levying final anti-dumping duty on 1st May, 2003, the impugned notification initiating new shipper review has been issued on 23rd May, 2003 with undue haste. b) Rule 22 provides for periodical review and not review within 22 days of levying final anti-dumping duty. c) When the initiation of first new shipper review was terminated on the ground that thesame cannot be entertained before the levy of final levy of antidumping duty, the second new shipper review application dated 28th february, 2003 made before the levy of final anti-dumping duty could not be entertained. d) Second new shipper review application dated 28th February, 2003 made by Nanhai before the levy of final anti-dumping duty was premature and non est. e) Under Rule 22, the DA gets jurisdiction to initiate the new shipper review only if the anti-dumping duty is imposed under section 9-A (l) of the customs Tariff Act. In the present case since the application of Nanhai dated 28th February, 2003 is prior to the levy of anti-dumping duty on 1st May, 2003, the DA had no jurisdiction to entertain the premature application of Nanhai dated 28-2-2003. In the present case since the application of Nanhai dated 28th February, 2003 is prior to the levy of anti-dumping duty on 1st May, 2003, the DA had no jurisdiction to entertain the premature application of Nanhai dated 28-2-2003. f) When the DA had terminated the first new shipper review application on the ground that the initiation of new shipper review is not permissible before the levy of final anti-dumping duty, the second new shipper review application could not be made on 28-2-2003 by wrongly interpreting that the new shipper review application is permissible after the publication of final finding. The fact that such wrong interpretation has its origin in the Nanhais Advocates letter dated 15th March, 2003 and the said wrong interpretation which is contrary to the Rules and contrary to Government letter dated 11th December, 2002 is the basis for initiating new shipper review, clearly shows that the exercise of power by the DA is mala fide. g) As the first application was terminated and the second application was premature, the DA could not have issued Notification dated 23rd May, 2003 under Rule 22 (1), because in law there was no application made after the levy of anti-dumping duty seeking new shipper review. h) At the time when the application for second new shipper review was made neither the final anti-dumping duty was levied under Rule 18 nor there was any certainty that the Central Government would levy the antidumping duty and, therefore, the DA having no jurisdiction ought to have returned the application forthwith. Instead the DA kept the 2nd application of Nanhai pending for one and half month waiting for the central Government to issue notification, whereas the first application was disposed of within 11 days of receiving Government letter dated 11th December, 2002. i) Rule 22 permits new shipper review only if the exporter has not exported the subject goods to India during the period of investigation. In the present case no such declaration has been made by Prestige, the exporter. j) In the absence of a declaration by Prestige, that they are not related to the known exporters in China, who might have exported the goods, the initiation of review is bad-in-law. In the present case no such declaration has been made by Prestige, the exporter. j) In the absence of a declaration by Prestige, that they are not related to the known exporters in China, who might have exported the goods, the initiation of review is bad-in-law. k) There is no declaration by Nanhai that they are not related to any Exporter or Producer in U. A. E. 1) In the absence or a declaration filed by Prestige as required under Rule 22, the DA without holding any preliminary enquiry could not have said that the conditions of Rule 22 are complied with. Thus according to the learned Counsel, there is volumnous evidence on record which conclusively establishes that the impugned notification has been issued in mala fide exercise of power and, hence, the same is liable to be quashed and set aside. ( 16 ) THE next submission was that the Notification dated 23rd May, 2003 issued by the DA is untravirds Rule 22. It was submitted that a Notification is a result of the delegated legislation and such a legislation is valid only if it conforms exactly to the powers granted. Such a legislation must be intravirus the parent law under which the power has been delegated and if such a legislation is in excess of that power, then it would be void and the validity of such a legislation would be open to challenge. It was submitted that the mandate of Rule 22 is that before initiating new shipper review, the DA must objectively satisfy himself that all the preconditions set out in Rule 22 are complied with. According to the learned Counsel five conditions are required to be satisfied before the DA could exercise the power for initiating new shipper review. They are: A) there must be final anti-dumping duty levied on the subject goods. b) the review should be periodic, c) the Exporter or Producer in the exporting country must not have exported the subject goods to India during the period of investigation. d) there should be no relationship between the producer and the exporter especially when the producer is in one country and the exporter is in another country. e) the Producer or the exporter in the exporting country should not be related to the known Exporters in the exporting country. ( 17 ) ELABORATING the above submissions Mr. d) there should be no relationship between the producer and the exporter especially when the producer is in one country and the exporter is in another country. e) the Producer or the exporter in the exporting country should not be related to the known Exporters in the exporting country. ( 17 ) ELABORATING the above submissions Mr. Hindaytullah submitted that the 2nd application of Nanhai dated 28th February, 2003 made prior to the levy of anti-dumping duty was premature and non cst. The suo motto initiation of new shipper review by Notification dated 23rd May, 2003 within 22 days of levy of anti-dumping duty on 1st May, 2003 was in breach of Rule 22. He submitted that even under the US law which calls for "prompt review", the new shipper review can be initiated only after one year plus one month or six months plus one month, as the case may be, after the levy of anti-dumping duty. ( 18 ) MR. Hidaytullah referred to the meaning of the words "prompt" and "periodic" given in Blacks Law Dictionary-5th Edition, which reads as under: "periodic" means : "recurring at fixed intervals, to be made or done, or to happen, at successive periods separated by determined intervals of time, as periodic payments of interest on a bond, or periodic alimony payments. ". ""promptly" means : "promptly quickly, at once, straight away, directly, right away, immediately, without delay or hesitation, unhesitatingly, swiftly, speedily, readily, instantly, instantaneously, punctually, expeditiously. "accordingly it was submitted that the periodic review under Rule 22 could only be at fixed intervals and not within 22 days of levying anti-dumping duty. ( 19 ) REFERRING to Article 9. 5 of GATT 1994 which calls for new shipper review on prompt and accelerated basis, it was submitted that when the Indian legislation has consciously departed from the language used in GATT 1994 and the legislature has chosen the words "periodic review" instead of "prompt review", proper meaning must be given to the words used in the legislation. It was submitted that before initiating the new shipper review, the DA must investigate as to whether the application falls within the period which is ripe for review. If he finds that the application is not ripe for review, he must reject the application forthwith and cannot keep it pending. It was submitted that before initiating the new shipper review, the DA must investigate as to whether the application falls within the period which is ripe for review. If he finds that the application is not ripe for review, he must reject the application forthwith and cannot keep it pending. Similarly, the DA must satisfy himself as to whether the Producer or the Exporter had not exported the produce to India during the period of investigation. Thereafter, the DA has to satisfy himself and/or pursue the evidence produced by the Exporter or the Producer that they are not related to any of the Exporters or the Producers in the exporting country which are subject to the anti-dumping duty. It was submitted that in the context and scope of the investigation and to minimise any injury to the domestic industry, the word or appearing between the words "exporters or the Producers" has to be read as "and" for the purpose of determining the link between the two. It was submitted that this investigation has to be carried out even more carefully when the Producer is in one country and the Exporter is in another country and the margin of dumping fixed under a Notification is different for each country. In the present case since the above preconditions have not been fulfilled, it was submitted that the initiation of new shipper review under Rule 22 is bad-in-law. ( 20 ) IT was further submitted that Rule 22 (2) comes into operation only if the periodic review is initiated by the DA after being satisfied with the conditions precedent for carrying out a periodic review has been complied with. The DA cannot recommend provisional assessment or ask the Central Government to obtain a guarantee from the importer. Referring to the ratio laid down by the Apex Court (Hidaytulla, J.) in the case of (Sainath Motors v. State of Rajasthan), reported in A. I. R. 1961 S. C. 1480 (at 1485) it was submitted that, the words "shall not levy anti-dumping duties" in Rule 22 (2) should not be construed to be mandatory and it must be construed that the anti-dumping duties shall not be levied only if the conditions precedent set out in Rule 22 (1) are satisfied. It was submitted that when the purpose of imposing duty is to rectify the trade distorting effect caused by dumping and to re-establish fair trade so as to ensure fair competition and to have the protective measure of domestic industry, it would be unthinkable that such a measure, should be lost, to favour one applicant, when the imports of subject goods of all other producers and/or exporters are subjected to anti-dumping duties. Referring to R. K. Jains publication (Safeguards Countervailing and Anti-Dumping Measures-2nd edition) it was submitted that in determining whether the activity is a genuine commercial activity or an effort to circumvent the anti-dumping duty has to be examined very carefully before arriving at a decision. 17. Elaborating the above submissions Mr. Hindaytullah submitted that the 2nd application of Nanhai dated 28th February, 2003 made prior to the levy of anti-dumping duty was premature and non est. The suo motto initiation of new shipper review by Notification dated 23rd May, 2003 within 22 days of levy of anti-dumping duty on 1st May, 2003 was in breach of Rule 22. He submitted that even under the US law which calls for "prompt review", the new shipper review can be initiated only after one year plus one month or six months plus one month, as the case may be, after the levy of anti-dumping duty. 18. Mr. Hidaytullah referred to the meaning of the words "Prompt" and "Periodic" given in Black's Law Dictionary-5th Edition, which reads as under:-- "Periodic" means : "Recurring at fixed intervals, to be made or done, or to happen, at successive periods separated by determined intervals of time, as periodic payments of interest on a bond, or periodic alimony payments.". ""Promptly" means : "promptly quickly, at once, straight away, directly, right away, immediately, without delay or hesitation, unhesitatingly, swiftly, speedily, readily, instantly, instantaneously, punctually, expeditiously." Accordingly it was submitted that the periodic review under Rule 22 could only be at fixed intervals and not within 22 days of levying anti-dumping duty. 19. Referring to Article 9.5 of GATT 1994 which calls for new shipper review on prompt and accelerated basis, it was submitted that when the Indian legislation has consciously departed from the language used in GATT 1994 and the legislature has chosen the words "periodic review" instead of "prompt review", proper meaning must be given to the words used in the legislation. It was submitted that before initiating the new shipper review, the DA must investigate as to whether the application falls within the period which is ripe for review. If he finds that the application is not ripe for review, he must reject the application forthwith and cannot keep it pending. Similarly, the DA must satisfy himself as to whether the Producer or the Exporter had not exported the produce to India during the period of investigation. Thereafter, the DA has to satisfy himself and/or pursue the evidence produced by the Exporter or the Producer that they are not related to any of the Exporters or the Producers in the exporting country which are subject to the anti-dumping duty. It was submitted that in the context and scope of the investigation and to minimise any injury to the domestic industry, the word 'or' appearing between the words "Exporters or the Producers" has to be read as "and" for the purpose of determining the link between the two. It was submitted that this investigation has to be carried out even more carefully when the Producer is in one country and the Exporter is in another country and the margin of dumping fixed under a Notification is different for each country. In the present case since the above preconditions have not been fulfilled, it was submitted that the initiation of new shipper review under Rule 22 is bad-in-law. 20. It was further submitted that Rule 22(2) comes into operation only if the periodic review is initiated by the DA after being satisfied with the conditions precedent for carrying out a periodic review has been complied with. The DA cannot recommend provisional assessment or ask the Central Government to obtain a guarantee from the importer. Referring to the ratio laid down by the Apex Court (Hidaytulla, J.) in the case of (Sainath Motors v. State of Rajasthan)1, reported in A.I.R. 1961 S.C. 1480 (at 1485) it was submitted that, the words "shall not levy anti-dumping duties" in Rule 22(2) should not be construed to be mandatory and it must be construed that the anti-dumping duties shall not be levied only if the conditions precedent set out in Rule 22(1) are satisfied. It was submitted that when the purpose of imposing duty is to rectify the trade distorting effect caused by dumping and to re-establish fair trade so as to ensure fair competition and to have the protective measure of domestic industry, it would be unthinkable that such a measure, should be lost, to favour one applicant, when the imports of subject goods of all other producers and/or exporters are subjected to anti-dumping duties. Referring to R.K. Jain's publication (Safeguards Countervailing Anti-Dumping Measures-2nd Edition) it was submitted that in determining whether the activity is a genuine commercial activity or an effort to circumvent the anti-dumping duty has to be examined very carefully before arriving at a decision. 21. The next submission of the Counsel was that in the first as well as the second application for review, it was stated by Nanhai that they would be selling goods to Prestige who would be exporting the same to India. At no stage Prestige who has only a Post Office Box Number and no address in Dubai has filed application under Rule 22. However, contrary to the application, the subject goods have been directly exported by Nanhai to NITCO, a consumer in India. The price of the goods to be sold by Nanhai to Prestige ranges from US$ 2.75 to US$ 5.90. It was submitted that even if the FOB price is to be taken for import into India it is apparent that there is gross dumping because the margin of dumping imposed under the Notification dated 1st May, 2003 is US$ 8.28 for China and US$ 5.54 for U.A.E. It was submitted that the dumping has been resorted to by Nanhai, Prestige and NITCO for commercial gains and profits, so that on suspension of anti-dumping duty during new shipper review, huge quantities of subject goods can be imported into India and distributed by NITCO which has All India Dealers Network. As per the purchase order placed before the Court, 15 lakhs square metres of subject goods produced by Nanhai are to be exported to India. As per the purchase order placed before the Court, 15 lakhs square metres of subject goods produced by Nanhai are to be exported to India. 2.14 lakhs square metres of subject goods have already been imported by NITCO in July, 2003 itself and if the remaining quantity is allowed to be imported, injury will be continuously inflicted on the domestic industry and the petitioners stand to suffer irreparable financial injury as well as irreversible loss of market share if these uneven playing field is allowed to continue. Referring to the decision of the Apex Court in the case of (Haridas Exports v. All India Class IV Manufacturers Association)2, reported in 145 E.L.T. 241 it was submitted that NITCO as a customer of Nanhai had no right to be heard in the matter. It was submitted that the alleged financial loss to NITCO can be mitigated so as to achieve a level playing field by directing NITCO to pay the anti-dumping duty in full and then seek refund under section 9-AA of the Customs Tariff Act. 22. Mr. Rana, learned Counsel appearing for the Secretary, Ministry of Finance, New Delhi (respondent No. 3) submitted that once the DA in its final findings has recommended levy of anti-dumping duty on the subject goods, then the Central Government has no option but to accept it and levy the anti-dumping duty under Rule 18 of 1995 Rules. Similarly, if the DA decides to initiate new shipper review under Rule 22(1), then the Central Government is bound to suspend the duty for the new shipper whose case is recommended for investigation. Mr. Rana submitted that unlike in Rule 13 (which provides for limitation for levy of provisional anti-dumping duty), Rule 17 (which provides for the period of limitation for recording final finding) and Rule 23(2) (which requires the DA to conclude the general review initiated under Rule 23(1) within twelve months from the date of initiation), the legislature has not fixed any specific time limit for initiation or completion of new shipper review under Rule 22, however, such investigation is expected to be completed expeditiously. In these circumstances, Mr. In these circumstances, Mr. Rana submitted that the DA was justified in initiating the new shipper review within 22 days of levying the final anti-dumping duty and the Central Government was justified in suspending the anti-dumping duty on the subject goods produced by Nanhai permitting clearance of their goods of provisional assessment with such security or guarantee as the Customs authorities deemed fit. 23. Mr. Rana further submitted that by suspending the anti-dumping duty during the period of new shipper investigation, no prejudice is caused to the petitioners because the clearance of the goods is subject to provisional assessment and on investigation if the anti-dumping duty is levied, then the Importer of the said goods is liable to pay the duty with retrospective effect from the day of initiation of new shipper review. Mr. Rana submitted that on account of provisional clearance of the subject goods on initiation of new shipper review, if any prejudice is caused to the domestic industry, it cannot be helped because suspension of the anti-dumping duty during the period of investigation is a statutory requirement. Mr. Rana relied upon the judgment in the case of (Walter v. Howe)3, reported in 1881(XVII) Ch.D. 707 wherein it was held that the word "any periodical work" would include a newspaper which is published daily. Accordingly, it was submitted that the words "periodic" in Rule 22 should be construed liberally. In any event, Mr. Rana submitted that as the word "periodic" is not defined, it would be proper to look into the provisions contained in the parent document i.e. Article 9.5 of GATT, 1994 which calls for new shipper review on prompt basis. For this purpose, he relied upon the decision in the case of (Salomon v. Commissioners of Customs Excise)4, reported in 1966(3) All.E.R. 871 and submitted that when the Statute is in compliance with the international convention, then the statute must be interpreted in conformity with the international convention. Relying upon the decision of the Apex Court in the case of (Union of India others v. Kannadapara Sanghatanegala Okkuta Kannadigara others)5, reported in 2002(10) S.C.C. 226. Mr. Rana submitted that an action taken in accordance with law cannot be challenged on the ground of legal mala fides. Relying upon the decision of the Apex Court in the case of (Union of India others v. Kannadapara Sanghatanegala Okkuta Kannadigara others)5, reported in 2002(10) S.C.C. 226. Mr. Rana submitted that an action taken in accordance with law cannot be challenged on the ground of legal mala fides. He submitted that though the application for new shipper review was made before the levy of final duty, the application was entertained by the DA only after the final anti-dumping duty was levied. 24. According to Mr. Rana, new shipper review application filed before the levy of anti-dumping duty does not become non est. He submitted that the petitioners do not want competition and even against the Notification dated 1st May, 2003 levying anti-dumping duty, the petitioners have filed an appeal and the same is pending before the CESTAT. He submitted that on account of competition if there is likelihood of fall in the margin of profit to a domestic industry, that cannot be a ground for invoking jurisdiction of this Court under Article 226 of the Constitution of India. Mr. Rana finally submitted that the initiation of new shipper review has been undertaken only after the condition precedent set out in Rule 22 were fulfilled. Under these circumstances, Mr. Rana submitted that there is no merit in the contention of the petitioners that the impugned Notification has been issued mala fide or in breach of Rule 22 of the 1995 Rule, and therefore, the petition be dismissed, with costs. 25. Mr. R.V. Desai, learned Senior Advocate appearing on behalf of the DA (respondent No. 2) while adopting the arguments of Mr. Rana submitted that the DA has initiated the new shipper review on being prima facie satisfied that the new shipper has complied with all the conditions set out in Rule 22. He submitted that there was no reason to disbelieve the statements made in the application filed by Nanhai that it had not exported during the period of investigation and that it is not related to any of the known Exporters in China. Accordingly, Mr. Desai submitted that the notifications issued for initiating the new shipper review and suspending the duty during the pendency of the new shipper investigation are in accordance with law. 26. Mr. Shreedharan, learned Counsel appearing on behalf of Nanhai, from China and prestige from U.A.E. (respondent Nos. Accordingly, Mr. Desai submitted that the notifications issued for initiating the new shipper review and suspending the duty during the pendency of the new shipper investigation are in accordance with law. 26. Mr. Shreedharan, learned Counsel appearing on behalf of Nanhai, from China and prestige from U.A.E. (respondent Nos. 4 and 5) submitted that the plain and unambiguous words used in Rule 2 are that during the period of investigation under new shipper review, the revenue cannot levy anti-dumping duty. He submitted that the contention of the petitioners that even during such investigation, the anti-lumping duty must be collected from the new shipper amounts to rewriting the section in a way which will destroy the very purpose for which Rule 22 was enacted. He submitted that the submissions of the petitioners that the importer must pay now and later on claim refund, runs counter to the basic concept of Rule 22. He submitted that the DA while initiating new shipper review on 23rd May, 2003 had categorically recorded that he is prima facie satisfied that the conditions precedent set out in Rule 22 are complied with and, therefore, he is initiating the review to determine a separate margin of dumping in the case of Nanhai and Prestige. Once the new shipper review is initiated under the Rule 22(1), it is obligatory on the part of the Central Government under Rule 22(2), not to levy anti-dumping duty on the goods exported by the new shipper and the goods of the new shipper exported to India are liable to be cleared on provisional assessment basis with security/guarantee as deemed fit by the Customs Authorities. On investigation if it is found that the anti-dumping duty is leviable, then the Central Government is entitled to levy anti-dumping duty retrospectively from the date of initiation of new shipper review. Moreover, if there is a history of dumping which has caused injury, then the Central Government is empowered under section 9-A(3) of the CTA to levy anti-dumping duty upto 90 days prior to the date of initiation of new shipper review. 27. Mr. Shreedharan further submitted that the condition precedent for invoking new shipper review are: A) The applicant i.e. new shipper has not exported the subject goods to India during the period of investigation. 27. Mr. Shreedharan further submitted that the condition precedent for invoking new shipper review are: A) The applicant i.e. new shipper has not exported the subject goods to India during the period of investigation. B) The applicant certifies that he is not related to any producer or exporter in the exporting country who are already subjected to anti-dumping duty. If the above condition are satisfied by a new shipper, the DA recommends suspension of anti-dumping duty in respect of the goods of the new shipper. He submitted that there are no other requirements to be fulfilled under Rule 22(1) for invoking the new shipper review. The limited enquiry to be made by the DA under the new shipper review is to find out the dumping margin of the new shipper by determining the domestic sale price of the new shipper in China and his ex-factory export price for exports to India. Once the DA initiates new shipper review then Rule 22(2) mandates that the Central Government shall not levy anti-dumping duty in respect of import of subject goods of the new shipper till the investigation is completed by the DA. On completion of investigation and determination of the dumping margin, the anti-dumping duty can be levied with retrospective effect from the date of initiation of new shipper review. He submitted that this is the practice followed in U.S.A. as well as Europian Unions and that is also in conformity with Article 9.5 of GATT, 1994. 28. As regards the allegations of the petitioners that there is nothing to show that the DA was prima facie satisfied before initiating new shipper review, Mr. Shreedharan submitted that there is no such averment made in the petition. After the initiation, of new shipper review the domestic industries including the petitioners were called upon to give their say in the matter. The petitioners accordingly made three representations and in none of those representations it was stated that there was no prima facie satisfaction on the part of the DA before initiating the new shipper review. He submitted that both the requirements contained in Rule 22 set out hereinabove were fulfilled in the present case and there is no statutory requirement to find out whether the new shipper is dumping the goods or not, or, whether such imports would cause injury to the domestic industry in India, or not. He submitted that both the requirements contained in Rule 22 set out hereinabove were fulfilled in the present case and there is no statutory requirement to find out whether the new shipper is dumping the goods or not, or, whether such imports would cause injury to the domestic industry in India, or not. He submitted that Rule 22(1) does not require the DA to form an opinion or record satisfaction that he has reason to believe that the conditions precedent for invoking the new shipper review under Rule 22 are satisfied. According to the Counsel, the statements made by the new shipper that he has not exported the goods during the period of investigation and that he is not related to the producer or the exporter in the exporting country were sufficient for the DA to initiate the new shipper review. 29. As regards the grievance of the petitioners that there was no evidence/material available before the DA regarding the fulfilment of the conditions set out in Rule 22(1), Mr. Shreedharan submitted that while levying anti-dumping duty in respect of imports from China into India, the list of Exporters in China were already before the DA as can be seen from the final findings of the DA dated 4th February, 2003. It is also on record that the DA has obtained the details of imports of subject goods from the Central Board of Excise and Customs for the three years preceding the date of investigation and also particulars of imports during the period of investigation. Moreover, the domestic industries including the petitioner company had furnished particular about the producers and exporters in China. As regards other requirement that Nanhai was not related to any producer or exporter in the exporting country. Mr. Shreedharan submitted that the self certification by the new shipper was sufficient to initiate new shipper review. He submitted that even in U.S.A. and Europian Union, the self certification by the new shipper is sufficient to initiate the new shipper review and there is no requirement for the new shipper to adduce evidence along with the application. 30. As regards the allegation of the petitioners that in undue haste the new shipper review has been initiated within the period of 22 days of levying anti-dumping duty, Mr. Shreedharan submitted that there is no time limit specified in the Rules for initiation of new shipper review. 30. As regards the allegation of the petitioners that in undue haste the new shipper review has been initiated within the period of 22 days of levying anti-dumping duty, Mr. Shreedharan submitted that there is no time limit specified in the Rules for initiation of new shipper review. Relying upon the decision of the Apex Court in the case of (Uttam Namdeo Mahale v. Vitthal Deo)6, reported in 1998(1) Bom.C.R. (S.C.)786 : 1997(6) S.C.C. 73 (S.C.), and the decision of the Apex Court in the case of (Commissioner of Central Excise v. Raghuvar (India) Limited)7, reported in 2000(118) E.L.T. 311 . Mr. Shreedharan submitted that in the absence of specific time limit, the DA was justified in initiating the new shipper review within the reasonable time. The Counsel submitted that in the present case M/s. Nanhai has been seeking review since 6th September, 2002, but the same could not be initiated because the investigation already initiated was not completed by the DA. Therefore, after the investigation was completed and the anti-dumping duty was levied, the DA was justified in initiating the new shipper review. 31. With reference to the contention of the petitioners that the application of Nanhai dated 28th February, 2003 is non est, Mr. Shreedharan submitted that Rule 22 does not require that at the time of making the application seeking new shipper review, the anti-dumping duty should be in force. He submitted that Rule 22 requires that on the date of initiating new shipper the duty should be in force. In the present case when the new shipper review was initiated on 23rd May, 2003, the anti-dumping duty levied on 1st May, 2003, was already in force and hence, the initiation of new shipper review is in accordance with law. 32. With reference to the grievance of the petitioners that the new shipper review can be initiated after six months or one year of levying anti-dumping duty, Mr. Shreedharan submitted that the proper context of the words "periodical review" in Rule 22 would be to initiate new shipper review "as and when" the application is made by a new shipper. 32. With reference to the grievance of the petitioners that the new shipper review can be initiated after six months or one year of levying anti-dumping duty, Mr. Shreedharan submitted that the proper context of the words "periodical review" in Rule 22 would be to initiate new shipper review "as and when" the application is made by a new shipper. He referred to section 9-A(6) of the CTA which provides that the margin of dumping referred to in section 9-A(1) is to be ascertained from time-to-time by making such inquiry as the Central Government considers necessary and for that purpose the Central Government was empowered to make Rules. Accordingly, it was submitted that 'periodic review' implies review "from time to time" or "as and when" the application is made by the new shipper. As regards the contention of the petitioners that by suspending the anti-dumping duty there is no protection to the domestic industry, Mr. Shreedharan submitted that on initiation of new shipper review the liability to anti-dumping duty exists but, the levy and collection of duty is only postponed till the investigation is completed by the DA. He submitted that the very fact that Rule 22 provides for restoring to the provisional assessment clearly shows that on determination of the margin of dumping the applicant is bound and liable to pay the anti-dumping duty retrospectively from the date of initiation of review. He submitted that the Indian Laws are modelled on the basis of the laws prevailing in the Europian Union and therefore, reliance placed on Laws prevailing in U.S.A. is not relevant in the present case. 33. Mr. Shreedharan submitted that if two or more methods of adjustment of an economic measure are available, the legislative preference in favour of one of them cannot be questioned on the ground of lack of legislative wisdom or that the method adopted is not the best or that there were better ways of adjusting the competing interests and claims. He submitted that the legislature possesses the greatest freedom in such areas and the judicial review is restricted. He submitted that the legislature possesses the greatest freedom in such areas and the judicial review is restricted. In this connection he relied upon the decision of the Apex Court in the case of (Kerala Hotel Restaurant Association others v. State of Kerala others)8, reported in 1990(2) S.C.C. at 513 para 27, and the decision of the Apex Court in the case of (P.M. Ashwathanarayana Setty v. State of Karnataka)9, reported in 1989 Supp. (1) S.C.C. 696, at 723-725 para 79 and 81-83. 34. Mr. Shreedharan submitted that the grievance of the petitioners that on account of provisional clearance, the subject goods will be sold in the market at a much lessor price thereby injuring the domestic industry is unfounded. Relying upon the decision of the Apex Court in the case of (Mafatlal Industries Limited v. Union of India)10, reported in 1997(89) E.L.T. 247 (S.C.) at 323-324 para 91, he submitted that when the sword of anti-dumping duty is hanging upon the importer on account of provisional clearance of the goods, it is unthinkable that the importer would not pass on the duty element to the customer while selling the subject goods in the market. 35. Mr. Shreedharan submitted that the proviso to Rule 22(2) which empowers the Central Government to ask for guarantee at the time of provisional assessment cannot be construed to mean cash payment of duty, especially when Rule 22(2) specifically provide that the Central Government shall not levy anti-dumping duty during the period of investigation. Relying upon the decision of the Apex Court in the case of (Director of Education (Secondary) v. Pushpendra Kumar)11, reported in A.I.R. 1998 S.C. 2230, at 2234 and the decision of the Apex Court in the case of (Madan Gopal v. Additional District Judge)12, reported in A.I.R. 1989 S.C. 155 at 157, he submitted that a proviso cannot be interpreted in a manner so as to defeat the main provision. 36. Relying upon the decision of the Apex Court in the case of (Subhash Photographics v. Union of India)13, reported in 1993(66) E.L.T. 3 (S.C.) at para 15. Mr. Shreedharan submitted that the statute like the Customs Act and Customs Tariff Act can be administered only by constantly adjusting it to the needs of the situation. This calls for good amount of discretion to be allowed to the delegate. Mr. Shreedharan submitted that the statute like the Customs Act and Customs Tariff Act can be administered only by constantly adjusting it to the needs of the situation. This calls for good amount of discretion to be allowed to the delegate. Flexibility is essential in law making and it is one of the advantages of having Rules and Regulations so that they can be altered much more quickly and easily than the Acts of Parliament. Relying upon the decision of the Apex Court in the case of (K. Nagaraj v. State of Andhra Pradesh)14, reported in 1985(1) S.C.C. 523 at 538 para 13 and the decision of the Apex Court in the case of (Post Graduate Institute v. Dr. J.B. Dilawari)15, reported in 1988 (Supp.) S.C.C. 355 at 358-359 para 10, he submitted that the prompt action taken by the DA cannot be a ground for alleging unreasonableness or arbitrariness. 37. It was submitted that to construe any word in a statute, the context in which it is used is significant. Meaning of the words and expressions in an Act must take colour from the context in which they appear. Therefore, the expression "time to time" appearing in section 9-A(6) and the expression "periodical" appearing in Rule 22(1) would mean "as and when the need arises for the same". In that context he relied upon the decision of the Apex Court in the case of (Special Reference No. 1 of 2002 Gujarat Assembly Election Matter)16, reported in 2002(8) S.C.C. 237 at 318-319 para 136-137, and the decision of the Apex Court in the case of (Shabir Ahmed v. Sham Lal)17, reported in 2002(3) S.C.C. 118 at 121-122, para 10-11. 38. Lastly Mr. Shreedharan submitted that even if the impugned notifications are struck down the matter needs to be remanded back for determining the separate margin of dumping in the case of Nanhai in accordance with the guidelines laid down by the Court. In this connection reliance was placed on the judgment of Apex Court in the case of (Indian Express Newspapers v. Union of India)18, reported in 1999(110) E.L.T. 3(S.C.), at 50-51 (paras 106 to 109). 39. Mr. In this connection reliance was placed on the judgment of Apex Court in the case of (Indian Express Newspapers v. Union of India)18, reported in 1999(110) E.L.T. 3(S.C.), at 50-51 (paras 106 to 109). 39. Mr. Dada, learned Senior Advocate appearing on behalf of the intervenors (importers) submitted that while the anti-dumping investigation (vide Notification dated 6th August, 2001) for the period 1-4-2000 to 31-3-2001 was going on, Nanhai by its letter dated 6-9-2002 had approached the DA seeking determination of separate margin of dumping on the subject goods produced by it. However, the same was turned down, firstly, because Nanhai had not exported the subject goods during the period under investigation i.e. 1-4-2000 to 31-3-2001, therefore, the case of Nanhai cannot be investigated, and secondly, under Rule 22 new shipper review could be initiated only after the completion of the investigation and levy of final anti-dumping duty under section 9-A(1) of the C.T.A. Thus, the new shipper who has been requesting the DA to investigate and determine the margin of dumping in respect of his goods since 6th September, 2002 had to wait till completion of investigation and levy of duty on 1st May, 2003. Therefore, the DA was justified in taking up the case of Nanhai for investigation under Rule 22 immediately after the levy of duty. Any further delay in initiating the new shipper review would have caused great injustice to Nanhai, because, it would mean refusing to investigate the case of Nanhai before and after the levy of anti-dumping duty and at the same time subjecting the new shipper to the levy of duty. Mr. Dada submitted that this type of damnifying an exporter without the facts relating his product and prices being considered or investigated, is not what is contemplated in law. He further submitted that there was no requirement in law that the new shipper review application should be made after the levy of final anti dumping duty and, therefore, the initiation under Rule 22 on the basis of the application made after the publication of final findings is in accordance with law. 40. Mr. Dada further submitted that the purpose of anti-dumping duty is to prevent the exporters from dumping their goods at prices lesser than the price they charge in their domestic market. 40. Mr. Dada further submitted that the purpose of anti-dumping duty is to prevent the exporters from dumping their goods at prices lesser than the price they charge in their domestic market. If the price of the exporter is superior to the price in the Indian market, the exporter is entitled to take advantage of the Indian market so long as he was not dumping the goods in to the Indian market. He submitted that the whole object of W.T.O. is to treat the world as a market place and to apply anti-dumping provisions to prevent the misuse of any domestic market. He submitted that while the petitioners are entitled to compete with other producing in the world, they cannot knock out competition and seek large monopoly for themselves. 41. Mr. Dada further submitted that from the invoice which is referred to in the bill of entry filed by the importers it is seen that the invoice is given by Prestige General Trading in U.A.E. and the goods are despatched from China by Nanhai. Mr. Dada submitted that neither in the writ petition nor at the time of argument, the petitioners have produced at material to show that the statement made by Nanhai in their application seeking new shipper review is incorrect. He submitted that based on the impugned notifications the importers have imported the subject goods produced by Nanhai and, therefore, the importers cannot be subjected to anti-dumping duty without investigating the margin of dumping. Relying upon the decisions of the Apex Court in the case of (Kasinka Trading another v. Union of India)19, reported in 1995(1) S.C.C. 274 (paras 16 21) and in the case of Subhash Photographics v. Union of India, reported in 1993(66) E.L.T. 3 (para 13) and also the decision in the case of (D.K. Trivedi v. A.M. Patel)20, reported in A.I.R. 1986 S.C. 1323 (para 47), the Counsel submitted that the power to impose duty includes power to suspend and similarly he power to exempt includes power to modify or withdraw the same. Therefore, on initiation of new shipper review, suspension of anti-dumping duty in respect of the subject goods produced by the new shipper is justified. Therefore, on initiation of new shipper review, suspension of anti-dumping duty in respect of the subject goods produced by the new shipper is justified. Counsel relied upon the decision of the Apex Court in the case of Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, reported in 1999(110) E.L.T. 3 (S.C.), and submitted that even if for any reason it is held that the impugned notifications cannot be sustained, then, appropriate orders be passed in the matter so that without any investigation the anti-dumping duty is not required to be paid on the subject goods produced by Nanhai and imported by the intervenors. 42. In rejoinder, Mr. Hidaytullah submitted that the power given to the DA under Rule 22 is a discretionary power based on subjective satisfaction which is reviewable in a writ jurisdiction. He submitted that the DA should have conducted at least prima facie investigation especially when there was another company in China with the name Nanhai who was already investigated. In India unlike in U.S.A. U.K. where the Rules itself provide that the applicant himself can certify that he is not related to other exporters, there is no such Rule and, therefore, it was obligatory on the part of Nanhai to show that it is not related to other exporters and the DA must have subjective satisfaction that the new shipper is not related to the other exporter. In the absence of any such satisfaction the entire action on the part of the DA must fail. Relying on the decision of the Apex Court in the case of (Zora Singh v. J.M. Tandon)21, reported in A.I.R. 1971 S.C. 1537 (para 10) it was submitted that the subjective satisfaction must be such that a reasonable man would arrived at such conclusion. Relying upon the decision of the Apex Court in the case of (Saurashtra Chemicals Limited v. Union of India)22, reported in 118 E.L.T. 305(S.C.) it was submitted that the order of the DA being purely recommendatory it could not be said that the final findings of the DA were binding on the Central Government and, therefore, the application made by Nanhai prior to the order passed by the Central Government levying anti-dumping duty could not be entertained. It was submitted that when the DA admitted that no prima facie investigation was carried out before recommending the new shipper review, it is not open to Nanhai to contend that prima facie investigation was carried out by the DA. It was submitted that the fact that the Prestige which has its existence only through a P.O. Box has not made any application and though in its application Nanhai has stated that the subject goods would be exported through Prestige, in fact goods have been exported directly from China, clearly show that there are apparent contradictions in the application of Nanhai itself and, therefore, there being no subjective satisfaction of DA, the entire action initiated is liable to be quashed and set aside. 43. We have carefully considered the submissions made by the Counsel on both sides. The first question to be answered in this petition is whether the initiation of new shipper review within 22 days of levying anti-dumping duty can be said to be periodic review within the meaning of Rule 22? Rule 22 permits periodic review of anti-dumping duty levied under section 9-A(1) of the CTA for the purpose of determining individual margin of dumping for any exporters or producers in the exporting country. Although, GATT 1994 calls for new shipper review on prompt and accelerated basis, the Indian legislation has authorised the DA to initiate new shipper review on periodic basis. The term 'periodic review' is neither defined under the CTA nor under the 1995 Rules. In general parlance the word 'periodic' means 'at fixed intervals'. Thus, periodic review under Rule 22 means review at regular intervals and not as and when applications are made seeking new shipper review. 44. By new shipper review the individual margin of dumping is determined for exporters who were not originally investigated. In other words, the basic purpose for providing new shipper review is to see that in a global economy the exporters whose margin of dumping has not been determined are not burdened with the anti-dumping duty levied by the importing country. Unlike the general review provided under Rule 23, initiation of periodic review under Rule 22 for determination of individual margin depends upon the applications made for new shipper review. If there are no applications made, there is no question of initiating new shipper review at regular intervals. Unlike the general review provided under Rule 23, initiation of periodic review under Rule 22 for determination of individual margin depends upon the applications made for new shipper review. If there are no applications made, there is no question of initiating new shipper review at regular intervals. Therefore, the periodic review under Rule 22 although means review at regular intervals, it cannot be construed too rigidly so as to refuse new shipper review in a deserving case. In the present case, Nanhai has been seeking new shipper review since 6th September, 2002. However, the same could not be considered till the original investigation was completed and anti-dumping duty was levied on 1st May, 2003. The case of Nanhai could not be considered under the original investigating because Nanhai had not exported the goods during the period under investigation. Although the final findings as per Rule 17 of 1995 Rules were required to be submitted by the DA to the Central Government by August, 2002, the same was submitted belatedly in February, 2003. Thereafter, the Central Government levied the final anti-dumping duty on 1-5-2003. Thus, in the facts of the present case, where there has been delay of more than 6 months in completing the original investigation and levying final anti-dumping duty and Nanhai has been seeking separate margin of dumping for its product since September, 2002, we are of the opinion that the initiation of new shipper review dated 23-5-2003 eventhough within 22 days of levying final anti-dumping duty was justified. 45. The next question to be considered is whether the initiation of new shipper review was in mala fide exercise of power. According to the petitioners, when the initiation of the first new shipper review at the instance of Nanhai was terminated on the ground that the same cannot be entertained before the levy of final anti-dumping duty, the second new shipper review application dated 28th February, 2003 made before the levy of anti-dumping duty could not be entertained. As rightly pointed out by the Counsel for the respondents, there is nothing in the Rules to suggest that the application for new shipper review cannot be made before the levy of anti-dumping duty. If an application for new shipper is made after the publication of the final findings but before the levy of final anti-dumping duty, the application does not become non est. If an application for new shipper is made after the publication of the final findings but before the levy of final anti-dumping duty, the application does not become non est. It was open to the DA to reject the application or keep it pending till the final anti-dumping duty is levied. In the present case, the DA has kept the application pending upto the date of levy of anti-dumping duty and only thereafter entertained the application of the new shipper. Under the circumstances, merely because the application for new shipper review was made before the levy of final anti-dumping duty it cannot be said that the said application was invalid or that the DA had no jurisdiction to entertain that application even after the levy of anti-dumping duty. Therefore, merely because the application for new shipper review was made before the levy of final anti-dumping duty, it cannot be said that the initiation is bad or mala fide. 46. Another grievance of the petitioners is that since Prestige had not applied for new shipper review and he Prestige had not declared that it had not exported the subject goods to India and is not related to the exporters who might have exported the subject goods to India, the initiation of new shipper review is bad in law. For determining the margin of dumping what is relevant is the ex-factory export price and the ex-factory sale price or the normal value of the subject good in the domestic market for domestic consumption. If the export price is lower than the normal value, than it amounts to dumping. Therefore, determination of the normal value of the subject goods in the country of origin i.e. the country in which the subject goods are produce assumes greater importance in determining the margin of dumping. Whether the producer or the exporter, as the case may be, are from the same country or from different country is not relevant for determining the normal value of the subject goods. In this view of the matter to determine the individual margin of dumping in the case of Nanhai by way of new shipper review, what is relevant is, whether the subject goods produced by Nanhai were exported to India during the original investigation period and whether Nanhai is related to any of the exporters in China who might have exported the subject goods to India. Once a declaration is made by Nanhai to the effect that the goods produced by them have not been exported and but they are not related to the exporters who might have exported the goods to India, then any application or declaration by Prestige, who is the exporter of the goods produced by Nanhai is not necessary. The fact that the subject goods produced to Nanhai in China have been exported into India directly from China instead from U.A.E. as stated in the new shipper review application does not make any difference to the new shipper investigation. Even if, the subject goods produced by Nanhai at China were to be exported into India from U.A.E., for determining the normal value what would be relevant is the domestic price of the subject goods in the domestic market at China. Therefore, for determining the margin of dumping in respect of the goods produced by Nanhai, neither the application for the declaration by Prestige was necessary. 47. It was next contended that the identification dated 23rd May, 2003 is ultra vires Rule 22 because there is nothing to show that before initiating new shipper review, the DA was satisfied that all the preconditions set out in Rule 22 are complied with. The basic requirements for initiating the periodic review under Rule 22 are (a) the subject goods or the product must be subject to anti-dumping duty, and (b) the exporters or producers who are seeking determination of individual margin of dumping must not have exported the product or subject goods to India during the period of investigation and they must show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product. The new shipper who is seeking review, apart from making a declaration in the application that he fulfils the above conditions set out in Rule 22, cannot be expected to adduce any evidence that he had not exported the goods during the period of investigation or that he is not related to the exporters in the exporting country who are subject to anti-dumping duty on the product. For prima facie satisfaction though the DA is not required to conduct a detailed enquiry before initiating new shipper review, it cannot be said that the statements made by the new shipper must be accepted as gospel truth. For prima facie satisfaction though the DA is not required to conduct a detailed enquiry before initiating new shipper review, it cannot be said that the statements made by the new shipper must be accepted as gospel truth. It will be open to the DA to look into the evidence collected at the time of original investigation or any other material that is available to him to prima facie ascertain the veractify of the statements made by the new shipper. If there is material evidence to contradict the statements made in the application, then the DA can refuse to initiate new shipper review. In the present case, on the date of the initiation of new shipper review, there was no material on record to show that the statements made by Nanhai were not correct. Neither in the petition nor at the time of arguments any material has been produced by the petitioners to show that the declaration made by the new shipper is not correct. In this view of the matter no fault can be found with the order of DA in recommending initiation of new shipper review. Once the statements made in the application filed by Nanhai were prima facie found to be correct, the DA was justified in initiating the new shipper review. In our opinion, there was no requirement under the Rules for the DA to ascertain the linkage between the exporter and the producer or any other exporters in U.A.E. before initiating new shipper review. Neither in the petition nor at the time of argument any material has been produced before us to show that the declaration made by Nanhai were incorrect. Therefore, in the facts of the present case, it cannot be said that there was no prima facie satisfaction on the part of the DA before initiating the new shipper review. 48. The next contention seriously urged was that, on initiation of new shipper review, whether the Central Government is prohibited from recovering the anti-dumping duty even provisionally? According to the petitioners, when anti-dumping duty on subject goods is levied after years of investigation, the new shipper cannot be treated separately and absolved from payment of anti-dumping duty during new shipper review. According to the petitioners, the proper course is to direct the new shipper to pay anti-dumping duty and then seek refund if on investigation it is found that there is no dumping. According to the petitioners, the proper course is to direct the new shipper to pay anti-dumping duty and then seek refund if on investigation it is found that there is no dumping. We partly agree with the above submission. Merely because anti-dumping duty is levied on the subject goods, it does not mean that in the case of a new shipper whose case is not investigated and who claims that he has not practised dumping, the anti-dumping duty can be levied. However, while initiating the new shipper review if there is prima facie evidence of dumping then the provisional anti-dumping duty could be levied to the extent of margin of dumping noticed. However, the legislature in its wisdom has deemed it fit to seek a guarantee instead of levying provisional anti-dumping duty on the new shipper even in a case where there is prima facie evidence of dumping the goods of the new shipper in to India. Validity of Rule 22 is not challenged before us. Moreover, in the present case, there is no material brought on record to show that on the date of initiation of new shipper review there was prima facie evidence suggesting that the new shipper was dumping his goods into India. In this view of the matter, we are of the opinion, that in the facts of the present case seeking a guarantee instead of provisional anti-dumping duty is justified. 49. The contention of the petitioners that if the goods of the new shipper are allowed to be dumped in to India, then it would cause grave prejudice to the domestic industry including the petitioners is not well founded. Because, as stated hereinabove, there is no prima facie material on record to show that there is dumping. The fact that the price of the new shipper is less than the anti-dumping duty levied under section 9-A(1) of the CTA cannot a ground to levy anti-dumping duty on the new shipper. It is the margin of dumping which is relevant for levying anti-dumping duty. In the present case, there is no prima facie material to show that the goods of the new shipper are dumped in to India. The margin of dumping can be ascertained only after the detail investigation. In a free market economy, the domestic industry cannot complain about the competitive price of the exporter. In the present case, there is no prima facie material to show that the goods of the new shipper are dumped in to India. The margin of dumping can be ascertained only after the detail investigation. In a free market economy, the domestic industry cannot complain about the competitive price of the exporter. However, on account of the competitive price of the new shipper if the domestic industry is seriously prejudiced, there are other provisions under the CTA which can be invoked to safeguard the domestic industry. However, anti-dumping duty can be levied only if there is dumping and to the extent of margin of dumping. The apprehension of the petitioners that the goods of the new shipper cleared on guarantee may be sold in the market at a much lesser price so as to cause material injury to the domestic industry cannot be a ground for levying provisional anti-dumping duty. The price at which the imported goods are sold in India is not the criteria for determining the anti-dumping duty. As stated hereinabove, it is a margin of dumping which is relevant for levying anti-dumping duty. 50. We are not dealing with various decisions cited by the Counsel on both sides as there is no dispute regarding the ratio laid down therein. However, we should take the observe that in future, the DA, must ensure that the investigation is completed and the final findings are submitted within the time stipulated under the 1995 Rules. As regards the new shipper review is concerned, although there is no time limit prescribed under Rule 22, it is expected that the same is completed expeditiously. Looking to the limited investigation required to be carried out in the new shipper review, we think a period of 3 months from the date of initiation would be reasonable for completing the new shipper review. 51. For all the aforesaid reasons, the petition fails. Rule is discharged with no order as to costs. 52. This judgment will come into operation with effect from 20th December, 2003. Petition fails. ( 21 ) THE next submission of the Counsel was that in the first as well as the second application for review, it was stated by Nanhai that they would be selling goods to Prestige who would be exporting the same to India. 52. This judgment will come into operation with effect from 20th December, 2003. Petition fails. ( 21 ) THE next submission of the Counsel was that in the first as well as the second application for review, it was stated by Nanhai that they would be selling goods to Prestige who would be exporting the same to India. At no stage Prestige who has only a Post Office Box Number and no address in dubai has filed application under Rule 22. However, contrary to the application, the subject goods have been directly exported by Nanhai to NITCO, a consumer in India. The price of the goods to be sold by Nanhai to Prestige ranges from US$ 2. 75 to US$ 5. 90. It was submitted that even if the FOB price is to be taken for import into India it is apparent that there is gross dumping because the margin of dumping imposed under the Notification dated 1st May, 2003 is US$ 8. 28 for China and US$ 5. 54 for U. A. E. It was submitted that the dumping has been resorted to by Nanhai, Prestige and NITCO for commercial gains and profits, so that on suspension of anti-dumping duty during new shipper review, huge quantities of subject goods can be imported into India and distributed by NITCO which has All India Dealers Network. As per the purchase order placed before the Court, 15 lakhs square metres of subject goods produced by Nanhai are to be exported to India. 2. 14 lakhs square metres of subject goods have already been imported by NITCO in July, 2003 itself and if the remaining quantity is allowed to be imported, injury will be continuously inflicted on the domestic industry and the petitioners stand to suffer irreparable financial injury as well as irreversible loss of market share if these uneven playing field is allowed to continue. Referring to the decision of the Apex Court in the case of (Haridas Exports v. All India Class IV manufacturers Association), reported in 145 E. L. T. 241 it was submitted that nitco as a customer of Nanhai had no right to be heard in the matter. Referring to the decision of the Apex Court in the case of (Haridas Exports v. All India Class IV manufacturers Association), reported in 145 E. L. T. 241 it was submitted that nitco as a customer of Nanhai had no right to be heard in the matter. It was submitted that the alleged financial loss to NITCO can be mitigated so as to achieve a level playing field by directing NITCO to pay the anti-dumping duty in full and then seek refund under section 9-AA of the Customs Tariff Act. ( 22 ) MR. Rana, learned Counsel appearing for the Secretary, Ministry of Finance, new Delhi (respondent No. 3) submitted that once the DA in its final findings has recommended levy of anti-dumping duty on the subject goods, then the Central Government has no option but to accept it and levy the antidumping duty under Rule 18 of 1995 Rules. Similarly, if the DA decides to initiate new shipper review under Rule 22 (1), then the Central Government is bound to suspend the duty for the new shipper whose case is recommended for investigation. Mr. Rana submitted that unlike in Rule 13 (which provides for limitation for levy of provisional anti-dumping duty), Rule 17 (which provides for the period of limitation for recording final finding) and Rule 23 (2) (which requires the DA to conclude the general review initiated under Rule 23 (1) within twelve months from the date of initiation), the legislature has not fixed any specific time limit for initiation or completion of new shipper reviewunder Rule 22, however, such investigation is expected to be completed expeditiously. In these circumstances, Mr. Rana submitted that the DA was justified in initiating the new shipper review within 22 days of levying the final anti-dumping duty and the Central Government was justified in suspending the anti-dumping duty on the subject goods produced by Nanhai and permitting clearance of their goods of provisional assessment with such security or guarantee as the Customs authorities deemed fit. ( 23 ) MR. ( 23 ) MR. Rana further submitted that by suspending the anti-dumping duty during the period of new shipper investigation, no prejudice is caused to the petitioners because the clearance of the goods is subject to provisional assessment and on investigation if the anti-dumping duty is levied, then the importer of the said goods is liable to pay the duty with retrospective effect from the day of initiation of new shipper review. Mr. Rana submitted that on account of provisional clearance of the subject goods on initiation of new shipper review, if any prejudice is caused to the domestic industry, it cannot be helped because suspension of the anti-dumping duty during the period of investigation is a statutory requirement. Mr. Rana relied upon the judgment in the case of (Walter v. Howe), reported in 1881 (XVII) Ch. D. 707 wherein it was held that the word "any periodical work" would include a newspaper which is published daily. Accordingly, it was submitted that the words "periodic" in rule 22 should be construed liberally. In any event, Mr. Rana submitted that as the word " periodic" is not defined, it would be proper to look into the provisions contained in the parent document i. e. Article 9. 5 of GATT, 1994 which calls for new shipper review on prompt basis. For this purpose, he relied upon the decision in the case of (Salomon v. Commissioners of Customs and Excise), reported in 1966 (3) All. E. R. 871 and submitted that when the Statute is in compliance with the international convention, then the statute must be interpreted in conformity with the international convention. Relying upon the decision of the Apex Court in the case of (Union of India and others v. Kannadapara sanghatanegala Okkuta and Kannadigara and others), reported in 2002 (10) s. C. C. 226. Mr. Rana submitted that an action taken in accordance with law cannot be challenged on the ground of legal mala fides. He submitted that though the application for new shipper review was made before the levy of final duty, the application was entertained by the DA only after the final anti-dumping duty was levied. ( 24 ) ACCORDING to Mr. Rana, new shipper review application filed before the levy of anti-dumping duty does not become non est. He submitted that though the application for new shipper review was made before the levy of final duty, the application was entertained by the DA only after the final anti-dumping duty was levied. ( 24 ) ACCORDING to Mr. Rana, new shipper review application filed before the levy of anti-dumping duty does not become non est. He submitted that the petitioners do not want competition and even against the Notification dated 1st May, 2003 levying anti-dumping duty, the petitioners have filed an appeal and the same is pending before the CESTAT. He submitted that on account of competition if there is likelihood of fall in the margin of profit to a domestic industry, that cannot be a ground for invoking jurisdiction of this Court under article 226 of the Constitution of India. Mr. Rana finally submitted that the initiation of new shipper review has been undertaken only after the condition precedent set out in Rule 22 were fulfilled. Under these circumstances, mr. Rana submitted that there is no merit in the contention of the petitioners that the impugned Notification has been issued mala fide or in breach of Rule 22 of the 1995 Rule, and therefore, the petition be dismissed, with costs. ( 25 ) MR. R. V. Desai, learned Senior Advocate appearing on behalf of the DA (respondent No. 2) while adopting the arguments of Mr. Rana submitted that the DA has initiated the new shipper review on being prima facie satisfied that the new shipper has complied with all the conditions set out in Rule 22. He submitted that" there was no reason to disbelieve the statements made in the application filed by Nanhai that it had not exported during the period of investigation and that it is not related to any of the known Exporters in China. Accordingly, Mr. Desai submitted that the notifications issued for initiating the new shipper review and suspending the duty during the pendency of the new shipper investigation are in accordance with law. ( 26 ) MR. Shreedharan, learned Counsel appearing on behalf of Nanhai, from china and prestige from U. A. E. (respondent Nos. 4 and 5) submitted that the plain and unambiguous words used in Rule 2 are that during the period of investigation under new shipper review, the revenue cannot levy anti-dumping duty. ( 26 ) MR. Shreedharan, learned Counsel appearing on behalf of Nanhai, from china and prestige from U. A. E. (respondent Nos. 4 and 5) submitted that the plain and unambiguous words used in Rule 2 are that during the period of investigation under new shipper review, the revenue cannot levy anti-dumping duty. He submitted that the contention of the petitioners that even during such investigation, the anti-lumping duty must be collected from the new shipper amounts to rewriting the section in a way which will destroy the very purpose for which Rule 22 was enacted. He submitted that submissions of the petitioners that the importer must pay now and later on claim refund, runs counter to the basic concept of Rule 22. He submitted that the DA while initiating new shipper review on 23rd May, 2003 had categorically recorded that he is prima facie satisfied that the conditions precedent set out in Rule 22 are complied with and, therefore, he is initiating the review to determine a separate margin of dumping in the case of Nanhai and Prestige. Once the new shipper review is initiated under the Rule 22 (1), it is obligatory on the part of the Central Government under Rule 22 (2), not to levy anti-dumping duty on the goods exported by the new shipper and the goods of the new shipper exported to India are liable to be cleared on provisional assessment basis with security/guarantee as deemed fit by the Customs Authorities. On investigation if it is found that the anti-dumping duty is leviable, then the Central government is entitled to levy anti-dumping duty retrospectively from the date of initiation of new shipper review. Moreover, if there is a history of dumping which has caused injury, then the Central Government is empowered under section 9-A (3) of the CTA to levy anti-dumping duty upto 90 days prior to the date of initiation of new shipper review. ( 27 ) MR, Shreedharan further submitted that the condition precedent for invoking new shipper review are: a) The applicant i. e. new shipper has not exported the subject goods to India during the period of investigation, b) The applicant certifies that he is not related to any producer or exporter in the exporting country who are already subjected to anti-dumping duty. If the above condition are satisfied by a new shipper, the DA recommends suspension of anti-dumping duty in respect of the goods of the new shipper. He submitted that there are no other requirements to be fulfilled under Rule 22 (1) for invoking the new shipper review. The limited enquiry to be made by the DA under the new shipper review is to find out the dumping margin of the new shipper by determining the domestic sale price of the new shipper in China and his ex-factory export price for exports to India. Once the da initiates new shipper review then Rule 22 (2) mandates that the Central government shall not levy anti-dumping duty in respect of import of subject goods of the new shipper till the investigation is completed by the DA. On completion of investigation and determination of the dumping margin, the anti-dumping duty can be levied with retrospective effect from the date of initiation of new shipper review. He submitted that this is the practice followed in U. S. A. as well as Europian Unions and that is also in conformity with Article 9. 5 of GATT, 1994. ( 28 ) AS regards the allegations of the petitioners that there is nothing to show that the DA was prima fade satisfied before initiating new shipper review, mr. Shreedharan submitted that there is no such averment made in the petition. After the initiation, of new shipper review the domestic industries including the petitioners were called upon to give their say in the matter. The petitioners accordingly made three representations and in none of those representations it was stated that there was no prima fade satisfaction on the part of the DA before initiating the new shipper review. He submitted that both the requirements contained in Rule 22 set out hereinabove were fulfilled in the present case and there is no statutory requirement to find out whether the new shipper is dumping the goods or not, or, whether such imports would cause injury to the domestic industry in India, or not. He submitted that Rule 22 (1) does not require the DA to form an opinion or record satisfaction that he has reason to believe that the conditions precedent for invoking the new shipper review under Rule 22 are satisfied. He submitted that Rule 22 (1) does not require the DA to form an opinion or record satisfaction that he has reason to believe that the conditions precedent for invoking the new shipper review under Rule 22 are satisfied. According to the Counsel, the statements made by the new shipper that he has not exported the goods during the period of investigation and that he is not related to the producer or the exporter in the exporting country were sufficient for the DA to initiate the new shipper review. ( 29 ) AS regards the grievance of the petitioners that there was no evidence/material available before the DA regarding the fulfilment of the conditions set out in Rule 22 (1), Mr. Shreedharan submitted that while levying anti-dumping duty in respect of imports from China into India, the list of Exporters in china were already before the DA as can be seen from the final findings of the da dated 4th February, 2003. It is also on record that the DA has obtained the details of imports of subject goods from the Central Board of Excise and customs for the three years preceding the date of investigation and also particulars of imports during the period of investigation. Moreover, the domestic industries including the petitioner company had furnished particular about the producers and exporters in China. As regards other requirement that nanhai was not related to any producer or exporter in the exporting country. Mr. Shreedharan submitted that the self certification by the new shipper was sufficient to initiate new shipper review. He submitted that even in U. S. A. and europian Union, the self certification by the new shipper is sufficient to initiate the new shipper review and there is no requirement for the new shipper to adduce evidence along with the application. ( 30 ) AS regards the allegation of the petitioners that in undue haste the new shipper review has been initiated within the period of 22 days of levying antidumping duty, Mr. Shreedharan submitted that there is no time limit specified in the Rules for initiation of new shipper review. ( 30 ) AS regards the allegation of the petitioners that in undue haste the new shipper review has been initiated within the period of 22 days of levying antidumping duty, Mr. Shreedharan submitted that there is no time limit specified in the Rules for initiation of new shipper review. Relying upon the decision of the Apex court in the case of (Uttam Namdeo Mahale v. Vitthal Deo), reported in 1997 (6) S. C. C. 73 (S. C.), and the decision of the Apex Court in the case of (Commissioner of Centred Excise v. Raghuvar (India) Limited), reported in 2000 (118) E. L. T. 311. Mr. Shreedharan submitted that in the absence of specific time limit, the DA was justified in initiating the new shipper review within the reasonable time. The Counsel submitted that in the present case M/s. Nanhai has been seeking review since 6th September, 2002, but the same could not be initiated because the investigation already initiated was not completed by the DA. Therefore, after the investigation was completed and the anti-dumping duty was levied, the da was justified in initiating the new shipper review. ( 31 ) WITH reference to the contention of the petitioners that the application of Nanhai dated 28th February, 2003 is non est, Mr. Shreedharan submitted that Rule 22 does not require that at the time of making the application seeking new shipper review, the anti-dumping duty should be in force. He submitted that Rule 22 requires that on the date of initiating new shipper the duty should be in force. In the present case when the new shipper review was initiated on 23rd May, 2003, the anti-dumping duty levied on 1st May, 2003, was already in force and hence, the initiation of new shipper review is in accordance with law. ( 32 ) WITH reference to the grievance of the petitioners that the new shipper review can be initiated after six months or one year of levying anti-dumping duty, Mr. Shreedharan submitted that the proper context of the words "periodical review" in Rule 22 would be to initiate new shipper review "as and when" the application is made by a new shipper. Shreedharan submitted that the proper context of the words "periodical review" in Rule 22 would be to initiate new shipper review "as and when" the application is made by a new shipper. He referred to section 9-A (6) of the CTA which provides that the margin of dumping referred to in section 9-A (1) is to be ascertained from time-to-time by making such inquiry as the central Government considers necessary and for that purpose the Central government wasempowered to make Rules. Accordingly, it was submitted that 'periodic review' implies review "from time to time" or "as and when" the application is made by the new shipper. As regards the contention of the petitioners that by suspending the anti-dumping duty there is no protection to the domestic industry, Mr. Shreedharan submitted that on initiation of new shipper review the liability to anti-dumping duty exists but, the levy and collection of duty is only postponed till the investigation is completed by the da. He submitted that the very fact that Rule 22 provides for restoring to the provisional assessment clearly shows that on determination of the margin of dumping the applicant is bound and liable to pay the anti-dumping duty retrospectively from the date of initiation of review. He submitted that the indian Laws are modelled on the basis of the laws prevailing in the Europian union and therefore, reliance placed on Laws prevailing in U. S. A. is not relevant in the present case. ( 33 ) MR. Shreedharan submitted that if two or more methods of adjustment of an economic measure are available, the legislative preference in favour of one of them cannot be questioned on the ground of lack of legislative wisdom or that the method adopted is not the best or that there were better ways of adjusting the competing interests and claims. He submitted that the legislature possesses the greatest freedom in such areas and the judicial review is restricted. In this connection he relied upon the decision of the Apex Court in the case of (Kerala Hotel and Restaurant Association and others v. State of Kerala and others), reported in 1990 (2) S. C. C. at 513 para 27, and the decision of the apex Court in the case of (P. M. Ashwathanarayana Setty v. State of Karnataka), reported in 1989 Supp. (1) S. C. C. 696, at 723-725 para 79 and 81-83. (1) S. C. C. 696, at 723-725 para 79 and 81-83. ( 34 ) MR. Shreedharan submitted that the grievance of the petitioners that on account of provisional clearance, the subject goods will be sold in the market at a much lessor price thereby injuring the domestic industry is unfounded. Relying upon the decision of the Apex Court in the case of (Mafatlal industries Limited v. Union of India), reported in 1997 (89) E. L. T. 247 (S. C.) at 323-324 para 91, he submitted that when the sword of anti-dumping duty is hanging upon the importer on account of provisional clearance of the goods, it is unthinkable that the importer would not pass on the duty element to the customer while selling the subject goods in the market. ( 35 ) MR. Shreedharan submitted that the proviso to Rule 22 (2) which empowers the central Government to ask for guarantee at the time of provisional assessment cannot be construed to mean cash payment of duty, especially when Rule 22 (2) specifically provide that the Central Government shall not levy anti-dumping duty during the period of investigation. Relying upon the decision of the Apex Court in the case of (Director of Education (Secondary) v. Pushpendra Kumar), reported in A. I. R. 1998 S. C. 2230, at 2234 and the decision of the Apex Court in the case of (Madan Gopal v. Additional District judge), reported in A. I. R. 1989 S. C. 155 at 157, he submitted that a proviso cannot be interpreted in a manner so as to defeat the main provision. ( 36 ) RELYING upon the decision of the Apex Court in the case of (Subhash photographies v. Union of India), reported in 1993 (66) E. L. T. 3 (S. C.) at para 15. Mr, Shreedharan submitted that the statute like the Customs Act and customs Tariff Act can be administered only by constantly adjusting it to the needs of the situation. This calls for good amount of discretion to be allowed to the delegate. Mr, Shreedharan submitted that the statute like the Customs Act and customs Tariff Act can be administered only by constantly adjusting it to the needs of the situation. This calls for good amount of discretion to be allowed to the delegate. Flexibility is essential in law making and it is one of the advantages of having Rules and Regulations so that they can be altered much more quickly and easily than the Acts of Parliament Relying upon the decision of the Apex Court in the case of (K. Nagaraj v. State of Andhra Pradesh), reported in 1985 (1) S. C. C. 523 at 538 para 13 and the decision of the Apex Court in the case of (Post Graduate Institute v. Dr. J. B. Dilawan), reported in 1988 (Supp.) s. C. C. 355 at 358-359 para 10, he submitted that the prompt action taken by the da cannot be a ground for alleging unreasonableness or arbitrariness. ( 37 ) IT was submitted that to construe any word in a statute, the context in which it is used is significant. Meaning of the words and expressions in an Act must take colour from the context in which they appear. Therefore, the expression "time to time" appearing in section 9-A (6) and the expression "periodical" appearing in Rule 22 (1) would mean "as and when the need arises for the same". In that context he relied upon the decision of the Apex Court in the case of (Special Reference No. 1 of 2002 Gujarat Assembly Election Matter), reported in 2002 (8) S. C. C. 237 at 318-319 para 136-137, and the decision of the Apex Court in the case of (Shabirahmed v. Sham Lal ), reported in 2002 (3) s. C. C. 118 at 121-122, para 10-11. ( 38 ) LASTLY Mr. Shreedharan submitted that even if the impugned notifications are struck down the matter needs to be remanded back for determining the separate margin of dumping in the case of Nanhai in accordance with the guidelines laid down by the Court. In this connection reliance was placed on the judgment of Apex Court in the case of (Indian Express Newspapers v. Union of india), reported in 1999 (110) E. L. T. 3 (S. C.), at 50-51 (paras 106 to 109 ). ( 39 ) MR. In this connection reliance was placed on the judgment of Apex Court in the case of (Indian Express Newspapers v. Union of india), reported in 1999 (110) E. L. T. 3 (S. C.), at 50-51 (paras 106 to 109 ). ( 39 ) MR. Dada, learned Senior Advocate appearing on behalf of the intervenors (importers) submitted that while the anti-dumping investigation (vide Notification dated 6th August, 2001) for the period 1-4-2000 to 31-3-2001 was going on, Nanhai by its letter dated 6-9-2002 had approached the DA seeking determination of separate margin of dumping on the subject goods produced by it. However, the same was turned down, firstly, because Nanhai had not exported the subject goods during the period under investigation i. e. 1-4-2000 to 31-3-2001, therefore, the case of Nanhai cannot be investigated, andsecondly, under Rule 22 new shipper review could be initiated only after the completion of the investigation and levy of final anti-dumping duty under section 9-A (l) of the C. T. A. Thus, the new shipper who has been requesting the DA to investigate and determine the margin of dumping in respect of his goods since 6th September, 2002 had to wait till completion of investigation and levy of duty on 1st May, 2003. Therefore, the DA was justified in taking up the case of Nanhai for investigation under Rule 22 immediately after the levy of duty. Any further delay in initiating the new shipper review would have caused great injustice to Nanhai, because, it would mean refusing to investigate the case of Nanhai before and after the levy of anti-dumping duty and at the same time subjecting the new shipper to the levy of duty. Mr. Dada submitted that this type of damnifying an exporter without the facts relating his product and prices being considered or investigated, is not what is contemplated in law. He further submitted that there was no requirement in law that the new shipper review application should be made after the levy of final anti dumping duty and, therefore, the initiation under Rule 22 on the basis of the application made after the publication of final findings is in accordance with law. ( 40 ) MR. Dada further submitted that the purpose of anti-dumping duty is to prevent the exporters from dumping their goods at prices lesser than the price they charge in their domestic market. ( 40 ) MR. Dada further submitted that the purpose of anti-dumping duty is to prevent the exporters from dumping their goods at prices lesser than the price they charge in their domestic market. If the price of the exporter is superior to the price in the Indian market, the exporter is entitled to take advantage of the Indian market so long as he was not dumping the goods in to the Indian market. He submitted that the whole object of W. T. O. is to treat the world as a market place and to apply anti-dumping provisions to prevent the misuse of any domestic market. He submitted that while the petitioners are entitled to compete with other producing in the world, they cannot knock out competition and seek large monopoly for themselves. ( 41 ) MR. Dada further submitted that from the invoice which is referred to in the bill of entry filed by the importers it is seen that the invoice is given by prestige General Trading in U. A. E. and the goods are despatched from China by Nanhai. Mr. Dada submitted that neither in the writ petition nor at the time of argument, the petitioners have produced at material to show that the statement made by Nanhai in their application seeking new shipper review is incorrect. He submitted that based on the impugned notifications the importers have imported the subject goods produced by Nanhai and, therefore, the importers cannot be subjected to anti-dumping duty without investigating the margin of dumping. Relying upon the decisions of the Apex Court in the case of (Kasinka Trading and another v. Union of India), reported in 1995 (1) s. C. C. 274 (paras 16 and 21) and in the case of Subhash Photographies v. Union of India, reported in 1993 (66) E. L. T. 3 (para 13) and also the decision in the case of (D. K. Trivedi v. A. M. Patel), reported in A. I. R. 1986 S. C. 1323 (para 47), the Counsel submitted that the power to impose duty includes power to suspend and similarly he power to exempt includes power to modify or withdraw the same. Therefore, on initiation of new shipper review, suspension of anti-dumping duty in respect of the subject goods produced by the new shipper is justified. Therefore, on initiation of new shipper review, suspension of anti-dumping duty in respect of the subject goods produced by the new shipper is justified. Counsel-relied upon the decision of the Apex Court in the case of Indian Express Newspapers (Bombay) Put. Ltd. v. Union of India, reported in 1999 (110) E. L. T. 3 (S. C.), and submitted that even if for any reason it is held that the impugned notifications cannot be sustained, then, appropriate orders be passed in the matter so that without any investigation the anti-dumping duty is not required to be paid on the subject goods produced by Nanhai and imported by the intervenors. ( 42 ) IN rejoinder, Mr. Hidaytullah submitted that the power given to the DA under Rule 22 is a discretionary power based on subjective satisfaction which is reviewable in a writ jurisdiction. He submitted that the DA should have conducted at least prima facie investigation especially when there was another company in China with the name Nanhai who was already investigated. In India unlike in U. S. A. and U. K. where the Rules itself provide that the applicant himself can certify that he is not related to other exporters, there is no such Rule and, therefore, it was obligatory on the part of Nanhai to show that it is not related to other exporters and the DA must have subjective satisfaction that the new shipper is not related to the other exporter. In the absence of any such satisfaction the entire action on the part of the DA must fail. Relying on the decision of the Apex Court in the case of (Zora Singh v. J. M. Tandon) reported in A. I. R. 1971 S. C. 1537 (para 10) it was submitted that the subjective satisfaction must be such that a reasonable man would arrived at such conclusion. Relying upon the decision of the Apex Court in the case of (Saurashtra Chemicals Limited v. Union of India), reported in 118 E. L. T. 305 (S. C.) it was submitted that the order of the DA being purely recommendatory it could not be said that the final findings of the DA were binding on the Central Government and, therefore, the application made by nanhai prior to the order passed by the Central Government levying antidumping duty could not be entertained. It was submitted that when the DA admitted that no prima facie investigation was carried out before recommending the new shipper review, it is not open to Nanhai to contend that prima facie investigation was carried out by the DA. It was submitted that the fact that the Prestige which has its existence only through a P. O. Box has not made any application and though in its application Nanhai has stated that the subject goods would be exported through Prestige, in fact goods have been exported directly from China, clearly show that there are apparent contradictions in the application of Nanhai itself and, therefore, there being no subjective satisfaction of DA, the entire action initiated is liable to be quashed and set aside. ( 43 ) WE have carefully considered the submissions made by the Counsel on both sides. The first question to be answered in this petition is whether the initiation of new shipper review within 22 days of levying anti-dumping duty can be said to be periodic review within the meaning of Rule 22? Rule 22 permits periodic review of anti-dumping duty levied under section 9-A (l) of the CTA for the purpose of determining individual margin of dumping for any exporters or producers in the exporting country. Although, GATT 1994 calls for new shipper review on prompt and accelerated basis, the Indian legislation has authorised the DA to initiate new shipper review on periodic basis. The term 'periodic review' is neither defined under the CTA nor under the 1995 Rules. In general parlance the word 'periodic' means 'at fixed intervals'. Thus, periodic review under Rule 22 means review at regular intervals and not as and when applications are made seeking new shipper review. ( 44 ) BY new shipper review the individual margin of dumping is determined for exporters who were not originally investigated. In other words, the basic purpose for providing new shipper review is to see that in a global economy the exporters whose margin of dumping has not been determined are not burdened with the anti-dumping duty levied by the importing country. Unlike the general review provided under Rule 23, initiation of periodic review under rule 22 for determination of individual margin depends upon the applications made for new shipper review. If there are no applications made, there is no question of initiating new shipper review at regular intervals. Unlike the general review provided under Rule 23, initiation of periodic review under rule 22 for determination of individual margin depends upon the applications made for new shipper review. If there are no applications made, there is no question of initiating new shipper review at regular intervals. Therefore, the periodic review under Rule 22 although means review at regular intervals, it cannot be construed too rigidly so as to refuse new shipper review in a deserving case. In the present case, Nanhai has been seeking new shipper review since 6th September, 2002. However, the same could not be considered till the original investigation was completed and anti-dumping duty was levied on 1st May, 2003. The case of Nanhai could not be considered under the original investigating because Nanhai had not exported the goods during the period under investigation. Although the final findings as per Rule 17 of 1995 Rules were required to be submitted by the DA to the Central Government by August, 2002, the same was submitted belatedly in February, 2003. Thereafter, the Central Government levied the final anti-dumping duty on 1-5-2003. Thus, in the facts of the present case, where there has been delay of more than 6 months in completing the original investigation and levying final anti-dumping duty and Nanhai has been seeking separate margin of dumping for its product since September, 2002, we are of the opinion that the initiation of new shipper review dated 23-5-2003 eventhough within 22 days of levying final anti-dumping duty was justified. ( 45 ) THE next question to be considered is whether the initiation of new shipper review was in mala fide exercise of power. According to the petitioners, when the initiation of the first new shipper review at the instance of nanhai was terminated on the ground that the same cannot be entertained before the levy of final anti-dumping duty, the second new shipper review application dated 28th February, 2003 made before the levy of anti-dumping duty could not be entertained. As rightly pointed out by the Counsel for the respondents, there is nothing in the Rules to suggest that the application for new shipper review cannot be made before the levy of anti-dumping duty. If an application for new shipper is made after the publication of the final findings but before the levy of final anti-dumping duty, the application does not become non est. If an application for new shipper is made after the publication of the final findings but before the levy of final anti-dumping duty, the application does not become non est. It was open to the DA to reject the application or keep it pending till the final anti-dumping duty is levied. In the present case, the DA has kept the application pending upto the date of levy of anti-dumping duty and only thereafter entertained the application of the new shipper. Under the circumstances, merely because the application for new shipper review was made before the levy of final anti-dumping duty it cannot be said that the said application was invalid or that the DA had no jurisdiction to entertain that application even after the levy of anti-dumping duty. Therefore, merely because the application for new shipper review was made before the levy of final anti-dumping duty, it cannot be said that the initiation is bad or mala fide. ( 46 ) ANOTHER grievance of the petitioners is that since Prestige had not applied for new shipper review and he Prestige had not declared that it had not exported the subject goods to India and is not related to the exporters who might have exported the subject goods to India, the initiation of new shipper review is bad in law. For determining the margin of dumping what is relevant is the ex-factory export price and the ex-factory sale price or the normal value of the subject good in the domestic market for domestic consumption. If the export price is lower than the normal value, than it amounts to dumping. Therefore, determination of the normal value of the subject goods in the country of origin i. e. the country in which the subject goods are produce assumes greater importance in determining the margin of dumping. Whether the producer or the exporter, as the case may be, are from the same country or from different country is not relevant for determining the normal value of the subject goods. In this view of the matter to determine the individual margin of dumping in the case of Nanhai by way of new shipper review, what is relevant is, whether the subject goods produced by Nanhai were exported to India during the original investigation period and whether Nanhai is related to any of the exporters in China who might have exported the subject goods to India. Once a declaration is made by Nanhai to the effect that the goods produced by them have not been exported and but they are not related to the exporters who might have exported the goods to India, then any application or declaration by Prestige, who is the exporter of the goods produced by Nanhai is not necessary. The fact that the subject goods produced to Nanhai in China have been exported into India directly from China instead from U. A. E. as stated in the new shipper review application does not make any difference to the new shipper investigation. Even if, the subject goods produced by Nanhai at China were to be exported into India from U. A. E. , for determining the normal value what would be relevant is the domestic price of the subject goods in the domestic market at China. Therefore, for determining the margin of dumping in respect of the goods produced by Nanhai, neither the application for the declaration by Prestige was necessary. ( 47 ) IT was next contended that the identification dated 23rd May, 2003 is ultra vires Rule 22 because there is nothing to show that before initiating new shipper review, the DA was satisfied that all the preconditions set out in Rule 22 are complied with. The basic requirements for initiating the periodic review under Rule 22 are (a) the subject goods or the product must be subject to anti-dumping duty, and (b) the exporters or producers who are seeking determination of individual margin ofdumping must not have exported the product or subject goods to India during the period of investigation and they must show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product. The new shipper who is seeking review, apart from making a declaration in the application that he fulfils the above conditions set out in Rule 22, cannot be expected to adduce any evidence that he had not exported the goods during the period of investigation or that he is not related to the exporters in the exporting country who are subject to anti-dumping duty on the product. For prima facie satisfaction though the DA is not required to conduct a detailed enquiry before initiating new shipper review, it cannot be said that the statements made by the new shipper must be accepted as gospel truth. It will be open to the DA to look into the evidence collected at the time of original investigation or any other material that is available to him to prima facie ascertain the veractify of the statements made by the new shipper. If there is material evidence to contradict the statements made in the application, then the DA can refuse to initiate new shipper review. In the present case, on the date of the initiation of new shipper review, there was no material on record to show that the statements made by Nanhai were not correct. Neither in the petition nor at the time of arguments any material has been produced by the petitioners to show that the declaration made by the new shipper is not correct. In this view of the matter no fault can be found with the order of DA in recommending initiation of new shipper review. Once the statements made in the application filed by Nanhai were prima facie found to be correct, the DA was justified in initiating the new shipper review. In our opinion, there was no requirement under the Rules for the DA to ascertain the linkage between the exporter and the producer or any other exporters in U. A. E. before initiating new shipper review. Neither in the petition nor at the time of argument any material has been produced before us to show that the declaration made by nanhai were incorrect. Therefore, in the facts of the present case, it cannot be said that there was no prima facie satisfaction on the part of the DA before initiating the new shipper review. ( 48 ) THE next contention seriously urged was that, on initiation of new shipper review, whether the Central Government is prohibited from recovering the anti-dumping duty even provisionally? According to the petitioners, when anti-dumping duty on subject goods is levied after years of investigation, the new shipper cannot be treated separately and absolved from payment of anti-dumping duty during new shipper review. According to the petitioners, when anti-dumping duty on subject goods is levied after years of investigation, the new shipper cannot be treated separately and absolved from payment of anti-dumping duty during new shipper review. According to the petitioners, the proper course is to direct the new shipper to pay anti-dumping duty and then seek refund if on investigation it is found that there is no dumping. We partly agree with the above submission. Merely because anti-dumping duty is levied on the subject goods, it does not mean that in the case of a new shipper whose case is not investigated and who claims that he has not practised dumping, the anti-dumping duty can be levied. However, while initiating the new shipper review if there is prima facie evidence of dumping then the provisional anti-dumping duty could be levied to the extent of margin of dumping noticed. However, the legislature in its wisdom has deemed it fit to seek a guarantee instead of levying provisional anti-dumping duty on the new shipper even in a case where there is prima facie evidence of dumping the goods of the new shipper in to india. Validity of Rule 22 is not challenged before us. Moreover, in the present case, there is no material brought on record to show that on the date of initiation of new shipper review there was prima facie evidence suggesting that the new shipper was dumping his goods into India. In this view of the matter, we are of the opinion, that in the facts of the present case seeking a guarantee instead of provisional anti-dumping duty is justified. ( 49 ) THE contention of the petitioners that if the goods of the new shipper are allowed to be dumped in to India, then it would cause grave prejudice to the domestic industry including the petitioners is not well founded. Because, as stated hereinabove, there is no prima facie material on record to show that there is dumping. The fact that the price of the new shipper is less than the anti-dumping duty levied under section 9-A (l) of the CTA cannot a ground to levy anti-dumping duty on the new shipper. It is the margin of dumping which is relevant for levying anti-dumping duty. In the present case, there is no prima facie material to show that the goods of the new shipper are dumped in to India. It is the margin of dumping which is relevant for levying anti-dumping duty. In the present case, there is no prima facie material to show that the goods of the new shipper are dumped in to India. The margin of dumping can be ascertained only after the detail investigation. In a free market economy, the domestic industry cannot complain about the competitive price of the exporter. However, on account of the competitive price of the new shipper if the domestic industry is seriously prejudiced, there are other provisions under the CTA which can be invoked to safeguard the domestic industry. However, anti-dumping duty can be levied only if there is dumping and to the extent of margin of dumping. The apprehension of the petitioners that the goods of the new shipper cleared on guarantee may be sold in the market at a much lesser price so as to cause material injury to the domestic industry cannot be a ground for levying provisional anti-dumping duty. The price at which the imported goods are sold in India is not the criteria for determining the anti-dumping duty. As stated hereinabove, it is a margin of dumping which is relevant for levying anti-dumping duty. ( 50 ) WE are not dealing with various decisions cited by the Counsel on both sides as there is no dispute regarding the ratio laid down therein. However, we should take the observe that in future, the DA, must ensure that the investigation is completed and the final findings are submitted within the time stipulated under the 1995 Rules. As regards the new shipper review is concerned, although there is no time limit prescribed under Rule 22, it is expected that the same is completed expeditiously. Looking to the limited investigation required to be carried out in the new shipper review, we think a period of 3 months from the date of initiation would be reasonable for completing the new shipper review.