2013 (4) TMI 597 - HC - Customs

Appellant's Challenge Rejected: Melamine Dumping Investigation Valid under Rule 2(b)

The Court found that the notification initiating an investigation into alleged dumping of Melamine was valid, rejecting the appellant's challenge. It held ... Anti-dumping duty - request for imposition of anti-dumping duty on imported Melamine. - scope of the term 'importer' - Section 9A of CTA, 1975 - held that:- while ascertaining the meaning or definition of any particular word the subject and context of the Act or Rule has to be understood in rational way avoiding absurdity and keeping in view the real intention and object to be achieved by framing of such Act or Rules. The Superior Court is empowered to do so if for this reason there may be little conflict with the apparent expression of a particular provision. Nearly 15% of its total production is imported by it and that too casually and to meet customer’s demand during the time when the production was disrupted, and this quantity of import is very insignificant portion of the total import from the same exporting countries. - Realistic and logical meaning should be the person who is carrying on business of import exclusively for trading purpose is the importer under the said Rule. Appellant does not carry on business principally, of import of Melamine. It is carrying on business amongst other of manufacturing of heavy chemicals of every description, whether required for civil, commercial or military defence purposes. - definition of importer in Customs Act, 1962, can not be applied here. The definition in this Act is of general application of any import, which includes both for regular trader and exclusive consumer. Moreover Anti-Dumping Rules have not been framed under the Customs Act. This Rule has been framed under Section 9A of CTA, 1975 which is meant as correctly urged by Mr. Bajoria for imposition of rate of various duties under Act of 1962. In this Act there is no definition of the word import. But the Central Government being subordinate legislature has described importer differently and independently and for specific purpose and it would be absurd to borrow any expression from Act of 1962 by the Court, when by the Rule 2(g) of the said Rules provide no other definition of any unexplained word can be adopted other than in the Tariff Act, 1975, therefore the definition given in the Rule has to be accepted in the context of object of the Rule. - Designated authority directed to proceed with investigations. Issues Involved:1. Eligibility of the appellant to file an application for anti-dumping duty.2. Jurisdiction of the authority to issue the notification for investigation.3. Interpretation of the term 'importer' under Rule 2(b) of the 1995 Rules.4. Prematurity of the writ petition.Detailed Analysis:1. Eligibility of the Appellant to File an Application for Anti-Dumping Duty:The appellant, a producer of Melamine, filed an application for the imposition of anti-dumping duty on imported Melamine. The respondent contended that the appellant was ineligible to file the application as per Rule 2(b) of the Customs Tariff (Identification, Assessment, and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. The learned Trial Judge held that the appellant, being an importer of the same material from the same countries, was ineligible to make the application, and thus, the authority had no jurisdiction to initiate an investigation based on the appellant's complaint.2. Jurisdiction of the Authority to Issue the Notification for Investigation:The Directorate General of Anti-Dumping and Allied Duties issued a notification initiating an investigation into the alleged dumping of Melamine. The writ petitioner argued that the authority had no jurisdiction to issue the notification based on the appellant's application. The learned Trial Judge supported this view, stating that the appellant's status as an importer disqualified it from making the application.3. Interpretation of the Term 'Importer' under Rule 2(b) of the 1995 Rules:The central issue was the interpretation of the term 'importer' in Rule 2(b) of the 1995 Rules. The appellant argued that its occasional import of Melamine did not render it an importer within the meaning of the Rule, as its principal business was domestic production. The Court referred to the Supreme Court's decisions in Whirlpool Corporation v. Registrar of Trade Marks and Reliance Industries Ltd. v. Designated Authority, emphasizing that the term 'importer' should be interpreted in context and not literally. The Court concluded that the term 'importer' in Rule 2(b) refers to traders who import for trading purposes, not producers who import occasionally to meet demand.4. Prematurity of the Writ Petition:The respondent-authority argued that the writ petition was premature since the investigation had just begun and no one was prejudiced by it. The Court agreed, stating that the Writ Court should not have entertained the petition at such an early stage. The Court emphasized that the appropriate authority should first examine the facts and determine whether there was any merit in the appellant's complaint.Conclusion:The Court found that the notification did not suffer from any infirmity and that the investigation was rightly initiated. The judgment and order of the learned Trial Judge were set aside. The Court directed the respondent-authority to complete the investigation within the statutory period and allowed the writ petitioner-respondent to take action against any adverse order in the future. The appeal was allowed, and all points on merit were kept open for future consideration.