Case Summary & Legal Holding

This judicial decision was delivered by the ISLAMABAD. The matter involves proceedings between ZAHID HUSSAIN and NATIONAL TARIFF COMMISSION, GOVERNMENT OF PAKISTANHonorable Justice Babar SattarFeisal Hussain Naqvi,Dr. Farhat Zafar and Sheikh Anwar-ul-Haq, officially reported as 2025 PTD 1532. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

2025 P T D 1532 [Islamabad High Court] Before Babar Sattar, J ZAHID HUSSAIN through Attorney and another Versus NATIONAL TARIFF COMMISSION, GOVERNMENT OF PAKISTAN through Secretary and another Writ Petition No.3910 of 2023, decided on 13th June, 2025. Anti-Dumping Duties Act (XIV of 2015)--- ----S. 58---Constitution of Pakistan, Art. 199---Constitutional petition---Sunset review---Preconditions---National Tariff Commission---Jurisdiction---Petitioners were aggrieved of issuance of notice by National Tariff Commission for sunset review in relation to Anti-Dumping Duty beyond five years---Validity---Relevant trigger for the purposes of a sunset review is impending expiry of Anti-Dumping Duty---It is in the context of approaching expiry of Anti-Dumping Duty that a forward-looking analysis and prospective determination is to be made as to whether the expiry may result in continuation or recurrence of dumping and injury---Such prospective or forward-looking analysis cannot take place once Anti-Dumping Duty stands expired upon completion of its five-year term---Purpose of a sunset review was to prevent dumping and injury where that was likely effect of expiry of Anti-Dumping Duty---Once Anti-Dumping Duty stood expired and had remained expired for a few months, a sunset review no longer remained a useful tool and could not be employed thereafter---High Court declared sunset review notice issued in relation to Anti-Dumping Duty that had already stood expired, as issued without lawful authority and was set-aside---Constitutional petition was allowed, in circumstances. M/s Hana Clothings v. National Tariff Commission (Appeal No. 518 of 2022); M/s Z.A Corporation v. Federation of Pakistan (Writ Petition No. 80288 of 2023); Province of East Pakistan v. Abdul Hamid Darr 1970 SCMR 558; Khushi Muhammad v. Mst. Fazal Bibi PLD 2016 SC 872; Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala 2008 PTD 60; Nagina Silk Mill, Lyallpur v. The Income Tax Officer PLD 1963 SC 322; Collector of Sales Tax v. Super Asia Muhammad Din Sons 2017 SCMR 1427; Messrs Mujahid Soap and Chemical Industries (Pvt.) Ltd. v. Customs Appellate Tribunal, Bench-I, Islamabad and others 2019 SCMR 1735; Muhammad Saleem Bikiya v. Pakistan through Secretary Ministry of Commerce and another 2018 PTD 2026; Sadia Jabbar v. Federation of Pakistan and others PTCL 2014 CL 537; Union of India v. Kumho Petrochemicals Company Ltd. (2017) 8 SCC 307 and Al-Samrez Enterprises v. Federation of Pakistan 1986 SCMR 1917 rel. Barrister Yousaf Khosa, Barrister Omair Saleem Malik and Barrister Momin Khan Taufiq for Petitioners (in W.Ps. Nos. 3910/2023, 1757/2024 and 1758/2024) Feisal Hussain Naqvi, Advocate Supreme Court, Ahmad Abdul Rehman and Nasir Mehmood for Petitioner (in W.P No. 3945/2023). Basil Nabi Malik, Asad Ladha and Muhammad Shakeel Mughal for Petitioner (in W.P No. 4455/2023). Nazma Perveen Malik and Mr. Ashiq Hussain Tarar for Petitioners (in W.Ps. Nos. 1444, 2384, 2533, 2681, 3221 and 3714 of 2024). Abdul Moiz Jaferii for Petitioner (in W.P. No. 697/2024). Waqas Amir and Abu Azfar Naeem for NTC. Fahad Khan Tareen, Assistant Attorney General. Saif Ullah Khan, Saeed Hasan Khan, Rais Mehmood Ali and Ayman Asahad for Bulleh Shah Packaging (Pvt.) Ltd. Dr. Farhat Zafar and Sheikh Anwar-ul-Haq for Respondent Nos. 2 and 3 (in W.P No. 697/2024). Ch. Muhammad Nawaz, Legal Advisor, FBR for Respondent No.3 (in W.P No. 3945/2023). Date of hearing: 6th May, 2025. JUDGMENT BABAR SATTAR, J.----This judgment will dispose of the aforementioned petition as well as the petitions listed in Annexure-A as all of them involve the legality of notice of initiation of sunset review issued by the National Tariff Commission ("NTC") dated 02.11.2023. 2. Learned counsel for the petitioners, including Mr. Faisal Hussain Naqvi, Barrister Yusuf Khosa, Mr. Abdul Moiz Jaferii and Mr. Basil Nabi Malik, amongst others, made detailed arguments and also filed their written submissions which form part of the record in the instant matter. They cited relevant case law, which is also mentioned in the written submissions as part of the grounds for challenge. In order not to burden this judgment, this Court will not list their arguments in detail and will only outline their contentions in a summary fashion. 3. It was submitted that the final determination was dated 30.03.2018 and was to expire after a period of five years on 29.03.2023, pursuant to section 58(1) of the Anti-Dumping Duties Act, 2015 ("ADD Act"). A notice under section 58(2) of the ADD Act with regard to the date of expiry of the duty had to be issued at least ninety days prior to the expiration of the Anti-Dumping Duty ("ADD"). Such notice of expiry was issued on 28.12.2022. A notice for initiation of sunset review for purposes of section 58(3) of the ADD Act could only have been issued prior to 29.03.2023 (i.e. within a five-year period from the imposition of the ADD), which was not done. The period of review mentioned in the impugned notice was also from 01.07.2020 to 30.06.2023, which was not the same period for which ADD had been imposed by virtue of the final determination dated 30.03.2018. Thus, under the garb of sunset review, NTC was essentially undertaking a fresh investigation, which it could undertake, but not within the scope of provisions of section 58(3) of the ADD Act. It was submitted that after the expiry of the five-year period of ADD's validity, NTC, for purposes of the ADD imposed through final determination dated 30.03.2018, had become functus officio and was vested with no authority under provisions of the ADD Act to initiate a sunset review and order the continuation of the ADD that stood expired on 29.03.2023. A mandatory precondition for initiating sunset review was that such review must be initiated prior to the expiry of the ADD. Where the sunset review was not so initiated and the ADD stood expired, no sunset review could subsequently be issued to bring back to life an expired ADD. It was submitted that a writ petition against the sunset review notice was maintainable as there was no appeal provided against such notice in terms of section 70(1) of the ADD Act, and in M/s Hana Clothings v. National Tariff Commission (Appeal No. 518 of 2022) by order dated 21.03.2023, the Anti-Dumping Appellate Tribunal declared that an appeal against initiation of sunset review was not maintainable. It was submitted that ADD could not be applied retrospectively to concluded contracts through exercise of authority in terms of section 58(3) of the ADD Act. And the Lahore High Court in M/s Z.A Corporation v. Federation of Pakistan (Writ Petition No. 80288 of 2023), by judgment dated 11.11.2024, had already declared the impugned sunset review notice to be devoid of legal authority. It was submitted that for purposes of interpreting the scope of section 58(3) of the ADD Act, the decisions rendered as part of the dispute resolution mechanism of the WTO needed to be taken into account. Section 58(3) of the ADD Act was pari materia to Article 11.3 of the Anti-Dumping Agreement of WTO. And WTO precedents clearly established that the requirement to initiate a sunset review prior to expiry of the ADD was a mandatory condition for such review. It was also argued that the continuation of ADD in exercise of authority under sunset review was not automatic and even an interim order during the pendency of sunset review for purposes of section 58(3) of the ADD Act had to be a reasoned order in terms of section 24A of the General Clauses Act, 1897. 4. Mr. Waqas Amir, learned counsel for NTC, submitted that the timeframe for initiation of sunset review under section 58(3) was directory and not mandatory. The sunset review could not be initiated prior to the expiry of ADD as NTC had become dysfunctional. The domestic industry had filed an appropriate application requesting the initiation of a sunset review within time, which was duly acknowledged. However, a notice of initiation of sunset review could not be issued as NTC was not duly constituted at the relevant time. Once NTC was properly constituted by the Federal Government, the sunset review notice was issued without delay. It was submitted that the timeframe mentioned for initiating sunset review in section 58(3) of the ADD Act ought to be treated as directory as the sunset review may or may not lead to imposition of ADD. As the purpose of the sunset review was to protect domestic industry, in the event that the timeframe mentioned in section 58(3) of the ADD Act was found to be mandatory, the domestic industry would suffer as its review application would not be adjudicated for no fault of its own. In this context purposive interpretation of section 58(3) of the ADD Act was required to be undertaken. The learned counsel for NTC cited various judgments of the Supreme Court enumerating relevant principles of statutory interpretation. 5. Mr. Saif Ullah Khan, Advocate on behalf of Bhulley Shah Packaging (Pvt.) Limited also furnished arguments that overlapped with the arguments of the learned counsel for NTC. The crux of his submissions also was that Bhulley Shah (Pvt.) Limited, on behalf of the domestic industry, had filed an application in terms of section 58(3) of the ADD Act within the period prescribed therein and as a consequence of NTC being dysfunctional, the remedy afforded to the domestic industry by the statute ought not to be frustrated. 6. The issue requiring adjudication in the instant matter is fairly straightforward: Whether a sunset review can be initiated after the date of expiry of the ADD in terms of section 58(3) of the ADD Act and whether the condition prescribed in section 58(3) to initiate a review prior to expiry of the ADD is directory or mandatory? 7. Section 58 of the ADD Act states the following: 58. Review of anti-dumping duty. (1) Any definitive anti-dumping duty imposed under this Act shall be terminated on a date not later than five years from the date of its imposition or from the date of the most recent review under section 59, if such review has covered both dumping and injury. (2) The Commission shall, not later than ninety days preceding the date of expiry of a definitive anti-dumping duty, publish a notice of impending expiry of such anti-dumping duty in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan. (3) A definitive anti-dumping duty shall not expire if the Commission determines, in a review initiated before the date of expiry on its own initiative or upon a duly substantiated request made by or on behalf of domestic industry within forty-five days from public notice of impending termination of the definitive anti-dumping duty concerned, that the expiry of such anti-dumping duty would be likely to lead to continuation or recurrence of dumping and injury and such anti-dumping duty shall remain in force pending the outcome of such a review. 8. We will need to decipher the legislative intent manifest in section 58 of the ADD Act. Section 58(1) of the ADD Act provides that the ADD imposed under provisions of the ADD Act terminates at the expiry of five years from the date of its imposition, unless it terminates earlier by virtue of a review undertaken by NTC in terms of section 59 of the ADD Act. The exception to the five-year expiry period of the ADD is provided in section 58(3) of the ADD Act, which provides the conditions to be satisfied for the ADD to be extended beyond the period of five years, in terms of a review that has come to be known as sunset review (under the jurisprudence in relation to Article VI of the General Agreement on Tariffs and Trade, 1994 (GATT), to give effect to Pakistan's obligations under which the ADD Act was promulgated). In view of the plain language of section 58(3) of the ADD Act, the conditions mentioned therein can be identified as follows: 1. A review of the ADD, by the NTC on its own initiative or upon a request by the domestic industry, is to be initiated before the date of expiry of the ADD; 2. NTC determines that the expiry of the ADD would be likely to lead to continuation or recurrence of dumping; and 3. NTC determines that the expiry of the ADD would be likely to lead to injury. Section 58(3) of the ADD Act further provides that the ADD under review, "shall remain in force pending the outcome of such a review." 9. The first condition highlighted above regulates the prescribed time period for initiation of the sunset review. The two conditions that follow relate to the substantive determinations to be made by NTC in order to extend the imposition of the ADD beyond the five-year period prescribed in section 58(1) of the ADD Act. The last sentence of section 58(3) of the ADD Act is an enabling provision, providing that the ADD is to remain in force pending the sunset review. 10. Learned counsel for the NTC and Domestic Industry have argued that the condition prescribed with regard to timing of the initiation of sunset review is directory and the review initiated after the expiry of the ADD, by virtue of NTC being dysfunctional at the time of expiry of the ADD, cannot be treated as void for failure to comply with a directory condition. Learned counsels for the petitioners have argued to the contrary that initiation of sunset review must be prior to the expiry of the ADD and the initiation of sunset review in question was after expiry of the ADD, which is not contested as a matter of fact, is void for being in breach of the mandatory precondition re timing. 11. There are provisions in various laws that prescribe a time period for asserting rights or taking action and law in relation to how such periods of limitation for asserting legal rights are to be understood is fairly well settled. The question of condonation of delay on account of initiation of action beyond the period of limitation came before the Supreme Court in Province of East Pakistan v. Abdul Hamid Darr (1970 SCMR 558). The Supreme Court while interpreting what constituted sufficient cause for purposes of an application under section 5 of the Limitation Act, 1908, noted that each case had to be considered on its own facts, but "this much is certain that where by lapse of time a valuable right has accrued to the other side, it should not be lightly taken away." More recently in Khushi Muhammad v. Mst. Fazal Bibi (PLD 2016 SC 872), the body of case law on the question of condonation of delay was considered by the Supreme Court and the propositions settled in such regard were summarized. It was held that, "The law of limitation is a statute of repose, designed to quieten title and to bar stale and waterlogged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The act does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation..." It was further held that, "It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable defence. There is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law. It is indeed often a righteous defence. The court has to only see if the defence is good in law and not if it is moral or conscientious." The Supreme Court, while summarizing the principles with regard to condonation of delay, cited with approval the law laid down in Abdul Hamid Darr reproduced above. It went on to reiterate that, "as per the rule of casus omissus, the courts are not entitled to read words into an Act of Parliament unless clear reasons for it are found within the four corners of the Act itself." 12. Before us is not a question of condonation of delay in terms of section 5 of the Limitation Act, 1908. However, to the extent that section 58(1) of the ADD Act prescribes a period for expiry of ADD and section 58(3) is in the nature of an exception to the rule stated in section 58(1), the principles enumerated in relation to the permissibility of pursuing remedies beyond the statutorily prescribed time period become relevant. 13. Let us next consider the approach of superior courts to dealing with timelines prescribed to take certain actions within fiscal statutes. In Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala (2008 PTD 60), the question before the Lahore High Court was whether the period prescribed for completing an assessment after issuance of a show cause notice under provisions of the Sales Tax Act, 1990, was directory or mandatory. The Lahore High Court relied on the law laid down by the Supreme Court in Nagina Silk Mill, Lyallpur v. The Income Tax Officer (PLD 1963 SC 322), wherein it was held that, "it is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails [i.e. courts must lean against giving a statute retrospective operation] Even if two interpretations are equally possible, the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute." The Lahore High Court in Super Asia Muhammad Din Sons went on to hold that, "it is settled law that where inaction on the part of a public functionary within the prescribed time is likely to affect the rights of a citizen, the prescription of time is deemed directory. However, where a public functionary is empowered to create liability against a citizen only within the prescribed time, it is mandatory. The acceptance of contention of the revenue in that regard will make a provision of law redundant and nugatory. Redundancy or superfluity of an act of Parliament and a provision of law cannot be readily accepted. All the more so when the prescribed limit is beneficial for the citizen and restricts the executive power to touch the pocket of a taxpayer, thereby creating certainty that after its expiry, even if there was a good case for creation of liability, he will not be dragged in." The law laid down in Super Asia Muhammad Din Sons was upheld by the Supreme Court in Collector of Sales Tax v. Super Asia Muhammad Din Sons (2017 SCMR 1427). In doing so, the Supreme Court held that, "The ultimate test to determine whether a provision is mandatory or directory is that of ascertaining the legislative intent. While the use of the word 'shall' is not the sole factor which determines the mandatory or directory nature of a provision, it is certainly one of the indicators of legislative intent. Other factors include the presence of penal consequences in case of non-compliance, but perhaps the clearest indicator is the object and purpose of the statute and the provision in question. It is the duty of the court to garner the real intent of the legislature as expressed in the law itself." The Supreme Court further reiterated that, "when a statute requires that a thing should be done in a particular manner or form, it has to be done in such manner. But if such provision is directory, the act done in breach thereof would not be void, even though non-compliance may entail penal consequences. However, non-compliance of a mandatory provision would invalidate such act." The Supreme Court affirmed the view of the Lahore High Court that the period prescribed for passing an order under section 36 of the Sales Tax Act was mandatory. 14. The Supreme Court once again considered whether the period prescribed in section 179(3) of the Customs Act, 1969, for passing an order was mandatory. While relying on the law laid down in Super Asia Muhammad Din Sons (2017 SCMR 1427), it was held in Messrs Mujahid Soap and Chemical Industries (Pvt.) Ltd. v. Customs Appellate Tribunal, Bench-I, Islamabad and others (2019 SCMR 1735) that the prescribed period was mandatory and any decision issued beyond such period was invalid. 15. In ascertaining the legislative intent underlying section 58 of the ADD Act, it is imperative to note that the preamble of the Act provides that it has been enacted "to give effect in Pakistan to the provisions of Article VI of the General Agreement on Tariffs and Trade, 1994, and to the Agreement on Implementation thereof " 16. The object and purpose of the ADD Act was considered by the Sindh High Court in Muhammad Saleem Bikiya v. Pakistan through Secretary Ministry of Commerce and another (2018 PTD 2026) and it was observed that, "as is clear from the preambles of both the ADD Act and the predecessor Ordinance, they were enacted to give effect in the municipal law to Pakistan's obligations under the World Trade Organization treaties which have set up the principal system of international trade, the WTO system. In particular, the legislation gives municipal effect to Article VI of the General Agreement on Tariffs and Trade, (GATT) 1994 and the Agreement on Implementation of Article VI The WTO system was the culmination of several years and rounds of multi-lateral negotiations known as the Uruguay Round. The member states of the WTO entered into a whole series of agreements relating to different aspects of international trade, which have been given effect in our municipal law either by various statutes relatable to specific agreements (as is the case at hand) or by extensive amendments in existing legislation An important aspect of the WTO system is an elaborate dispute resolution mechanism." One of the primary questions before the Sindh High Court was the nature of levy imposed under provisions of the ADD Act. The Sindh High Court held that "in its essence, it imposes a condition on the import of goods into the country, namely that they will not be brought into Pakistan at a price (i.e., the export price) lower than the normal price. If there is a violation of this condition, and the further condition of injury to domestic industry is also established, then a penalty, i.e., the anti-dumping duty will have to be paid." It was in these terms that the Sindh High Court found that the ADD was in the nature of penalty for breach of requirements of import as prescribed in the ADD Act. 17. The manner in which the WTO dispute resolution system works and how municipal law enacted to give effect to agreements under the WTO system is to be interpreted was considered by the Sindh High Court in Sadia Jabbar v. Federation of Pakistan and others (PTCL 2014 CL 537) where the following was held: "If it is clear that a statute or statutory provision embodies a WTO agreement, and especially where the statutory language essentially reproduces or closely follows the text of the agreement, then the interpretation should invariably be that which is consistent with the agreement and obligations thereunder. In other words, the threshold for concluding that a meaning consistent with the WTO agreement was intended must be regarded as higher than would be the situation in the general case. To the maximum extent possible, the relevant provision should be understood and applied in its WTO context Parliament is presumed to know and keep in mind the country's international treaty obligations, and the consequences that could flow from any non-compliance with such obligations. The court should, therefore, to the maximum extent possible, avoid an interpretation that conflicts with the WTO agreement concerned, and thereby has the potential of exposing Pakistan to the possibility of retaliatory measures being adopted by other member states under the WTO system." It was further explained in Sadia Jabbar that, "the WTO provides for a detailed formal mechanism for dispute resolution, to which any member state can resort if it is of the view that another member state is not fulfilling its WTO obligations. This mechanism is contained in a separate agreement known as the "Understanding on Rules and Procedures governing the Settlement of Disputes" (generally referred to as the "Dispute Settlement Understanding" or "DSU") The DSU provides for an adjudicatory mechanism by which binding rulings can be made by "panels" and, on appeal, by appellate bodies Thus, the WTO system has a lot of bite in it, and member states must be, and generally are, careful to ensure that they are compliant with their obligations under its various agreements." 18. WTO also issues a WTO Analytical Index, which is an article-by-article guide to the interpretation and…

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