2005 (11) TMI 89 - HC - Customs

Petition Disposed with Appeal Liberty: Notification Gazetting Impugned Findings Stayed Pending CESTAT Hearing

The writ petition was disposed of with the liberty granted to the petitioner to file an appeal before CESTAT within fifteen days. If a notification based ... Writ jurisdiction - Maintainability of - Anti-dumping duty - Precedent Issues Involved:1. Maintainability of the Writ Petition.2. Appealability of the Final Finding to CESTAT.3. Prima facie case for continuance of anti-dumping duties.4. Non-cooperation of exporters from EU, USA, Canada, and Japan.5. Legal precedents and their binding nature.Detailed Analysis:1. Maintainability of the Writ Petition:The primary issue raised by the respondents concerns the maintainability of the Writ Petition. The impugned order mentions that an appeal against it lies before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in accordance with the Customs Tariff Act. The court referenced a similar case, Kalyani Steels v. Union of India, where the petitioner was granted time to file an appeal before CESTAT, and the notification was stayed until the tribunal fixed the matter for public hearing.2. Appealability of the Final Finding to CESTAT:The petitioner's counsel conceded that an appeal is a more comprehensive remedy than a writ petition. However, they argued that CESTAT had previously expressed in Indian Spinners Association v. Designated Authority that an appeal against a final finding is not maintainable based on the Supreme Court's decision in Saurashtra Chemicals Ltd. v. Union of India. The court disagreed with the tribunal's view, clarifying that the Supreme Court's dismissal of an SLP in limine does not constitute a binding precedent under Article 141 of the Constitution. The court emphasized that the law declared by the Supreme Court is binding, but the facts of the case must be considered to determine its applicability.3. Prima Facie Case for Continuance of Anti-Dumping Duties:In the referenced Kalyani Steels case, the court noted that a prima facie case for the continuance of anti-dumping duties was evident. Similarly, in the present case, the court found that there was no scope for contending that a prima facie case had not been made out for the continuance of anti-dumping duties. The court granted the petitioner fifteen days to file an appeal before CESTAT, and the notification would remain stayed until the tribunal fixed the matter for public hearing.4. Non-Cooperation of Exporters from EU, USA, Canada, and Japan:The court noted that none of the exporters from the EU, USA, and Canada provided information on the questionnaire, and the exporters from Japan were non-cooperative. The complaint from Acerinox S.A., Spain, was not prosecuted as no evidence was furnished. The court found that the petition was not devoid of prima facie substance and emphasized that CESTAT should adjudicate the matter comprehensively.5. Legal Precedents and Their Binding Nature:The court discussed several cases to clarify the binding nature of legal precedents. It cited the Supreme Court's observations in cases like State of U.P. v. Synthetics Ltd., Ajit Kumar Rath v. State of Orissa, and Thingujam Brojen Meetei, emphasizing that orders dismissing SLPs in limine do not constitute binding precedents. The court reiterated that a decision is binding not because of its conclusions but due to its ratio and principles laid down. The court also highlighted that the Central Government has discretion in imposing anti-dumping duties based on the designated authority's recommendations, but must withdraw provisional duties if the final finding is negative.Conclusion:The writ petition was disposed of with the liberty granted to the petitioner to file an appeal before CESTAT within fifteen days. If a notification based on the impugned final findings is gazetted before the interim/stay application is heard by CESTAT, its operation shall be held in abeyance. The court emphasized that henceforth, an appeal to CESTAT is the proper remedy for such matters.