TaxTMI 
TaxTMI 
2013 (6) TMI 92
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....e Act', in respect of the goods classified as Plain Gypsum Plaster Boards (hereinafter referred to as the `subject goods'), originating in or exported from China PR, Indonesia, Thailand and United Arab Emirates and consequently, to forbear the first respondent from proceeding further, based on the impugned Disclosure Statement, dated 6.9.2012, and to further direct the first respondent to reconsider the submissions made by the petitioner, in accordance with law and to issue a fresh Disclosure Statement, in terms of Rule 16 of the said Rules. 3. It has been stated that the petitioner is engaged in the business of Gypsum Plaster Boards of various dimensions. The petitioner has been importing the subject goods at the inland container depot located, at Chennai. The subject goods have to be cleared from the bonded customs warehouse, at Chennai, by filing the Bills of entry, as per the provisions of the Customs Act, 1962, on payment of the Anti-Dumping duties, if any, as recommended by the first respondent Designated Authority. 4. It has also been stated that the assessment of duties upon the clearance of the subject goods, imported by the petitoiner, has been taking place, at Chennai.....
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.... vide Notification No.14/45/2010-DGAD, dated 19.3.2012, recommending the imposition of provisional Anti-Dumping Duties on the import of the subject goods. In accordance with Rule 6(6), the authority had provided another opportunity to all the known interested parties to present their views. Accordingly, an oral hearing had been held, on 10.4.2012. Written submissions and re-joinders had also been filed by the parties concerned. At that stage, a writ petition had been filed, before this court, by the fifth respondent herein, in W.P.No.10348 of 2012. By an order, dated 2.7.2012, this Court had directed the first respondent to consider the relevant objections raised by the petitioner, in the said writ petition, at the time of the rendering of the Final Findings and to pass appropriate orders, in accordance with law, after giving an opportunity to the petitioner, to substantiate its case. In view of the said directions issued by this Court, the first respondent Designated authority had granted an opportunity to the fifth respondent herein and the other interested parties, to make their submissions. However, no opportunity of hearing had been granted to the said parties. The interested ....
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.... the subject goods, from foreign countries. Such observations made in the Disclosure Statement, by the first respondent Designated Authority, is totally contrary to the factual position prevailing in the domestic industry. In such circumstances, if Anti-Dumpting Duties are levied, based on the Disclosure Statement of the first respondent Designated authority, it would lead to an artifical increase in the price of the product manufactured by the petitioner and the other parties concerned. It is to be noted that the impugned Disclosure Statement, issued by the first respondent Designated Authority, would be the basis for his final decision. Further, the petitioner has received a copy of hte Disclosure Statement, at Chennai, through E-mail. Accordingly, the petitioner has preferred the present writ petition before this Court, challenging the Disclosure Statement, dated 6.9.2012, issued by the first respondent Designated Authority. 9. In the writ petition filed by the petitioner, in W.P.No.25669 of 2012, it has been stated that the petitioner is engaged in the business of manufacturing, importing and trading in non-combustible building materials, including plain gypsum boards, high qu....
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....s clear from the order passed by this Court that, before passing the Final Findings, the first respondent ought to consider the objections raised by the petitioner, by giving an opportunity to the petitioner to substantiate its case and by following the procedures provided under the Customs Tariff Act, 1975, and the Rules applicable to the case. 11. It has been further stated that an opportunity had been provided, by the first respondent, as per the order issued by this Court, on 2.7.2012, by asking for comments. The petitioner had made its submissions, dated 25.7.2012, and had also filed a rejoinder to the submissions made by the third respondent. Under Rule 16 of the Rules, the first respondent is required to inform all interested parties of the essential facts under consideration, which would be forming the basis of its decision. Accordingly, the Disclosure Statement containing the facts considered by the first respondent Designated Authority had been issued, on 6.9.2012. Based on the impugned Disclosure Statement the respondent would be issuing the Final Findings. 12. It has been further stated that the petitioner is aggrieved by the partial recording of its submissions, as w....
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....vide its order, dated 10.7.2012, that as no Anti-Dumping Duty is levied at the stage prior to the Final Findings rendered, under Rule 17 of the Anti-Dumping Rules, 1995, and, as such the assessment and payment of Anti-Dumpting Duty on the subject goods is only an anticipatory event and therefore, it would not give rise to any cause of action, at that stage. Anti-Dumping Duty, if any, would be payable only when the goods concerned are cleared. 14. It has been further stated that this Court, after considering the decisions of the Supreme Court, in Kusum Ingots and Alloys Limited Vs. Union of India and another, (2004) 6 SCC 254 and Alchemist Limited Vs. State Bank of Sikkim, (2007) 11 SCC 335, has held that no cause of action would arise at the stage of the Final Findings and that a cause of action should exist as a condition precedent for the filing of a writ petition. In the present writ petitions, the petitioners have stated that they would have to pay Anti-Dumping Duties, if the payment of such duties is recommended by the Designated Authority and levied by the Union of India. As such, it is clear that no prejudice had been caused to the petitioners, at this stage. Further, the p....
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....nated Authority, is an abuse of the process of law. If the process is not completed within the specified time limit it would result in the entire process being started afresh, from the beginning, resulting in huge loss of time and money. Further, the present writ petitions, filed by the petitioners, are contrary to the order passed by this Court, on 2.7.2012, in W.P.No.10348 of 2012. Further, if Final Findings are issued in terms of Rule 17 of the Anti-Dumping Rules, 1995, and after the Central Government notifies the same, in terms of Rule 18 of the said Rules, it may be open to the petitioners to challenge the levy of Anti-Dumpting Duties, if any, as per Section 9C of the Customs Tariff Act, 1975, by filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal concerned. Further, the submission made on behalf of the petitioner, in W.P.No.25669 of 2012, that the Designated Authority concerned cannot render the Final Findings, without referring the matter to the Competition Commission, under the provisions of the Competition Act, 2002, cannot be held to be valid in the eye of law. The issuance of the Disclosure Statement, by the Designated Authority, under Rule 16....
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....nability. Similarly, a Division Bench of this court had passed an order, dated 27.4.2012, in W.A.No.193 of 2012 etc. (batch) holding that a writ petition against the Preliminary Findings published by the Designated Authority is maintainable, especiallly, when the writ petitioner has raised the point of jurisdiction. The learned counsel had also relied on the decision of the Supreme Court, reported in Union of India and others Vs. Adani Exports Ltd. And another, 2002(1) SCC 567, to state that the bundle of facts which would constitute a cause of action giving rise to the dispute should be looked at, as a whole, while examining the issue relating to the territorial jurisdiction of this Court. Accordingly, this Court would have the jurisdiction to hear and dispose of the matter, on merits and in accordance with law. Even if a part of the cause of action arises witin the territorial jurisdiction of this Court it would be sufficient for this Court to entertain the writ petition and to pass appropriate orders, as prayed for by the petitioner, in the present writ petition. Similar submissions have been made by the learned counsel appearing on behalf of the petitoner in the writ petition, ....
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....this Court, being aggrieved by the Disclosure Statement issued by the Designated Authority, dated 6.9.2012. 23. However, the learned counsels appearing on behalf of the respondents concerned had submitted that there is no need for the Designated Authority to refer the matter to the Competition Commission, for obtaining its opinion, as per Section 21 of the Competitoin Act, 2002. It had been stated that Section 62 of the Competition Act, 2002, makes it clear that the provisions of the said Act shall be in addition to and not in derrogation of the provisoins of any other law for the time being in force. Accordingly, Section 21 of the Act could not have a binding force on the Designated Authority, especially, in view of the fact that the said provision states that the authority concerned may make a reference, in respect of the relevant issue, to obtain the opinion of the Competition Commission, in appropriate cases. It had been further stated that the petitioner is raising such grounds only with the mala fide intention of delaying the proceedings before the Designated Authority. 24. Mr.Arvind P.Datar, the learned counsel appearing on behalf of the fourth respondent, in W.P.No.25304 ....
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....26. The learned counsel had also relied on the decision of the Supreme Court, in Kusum Ingots and Alloys Limited Vs. Union of Another, (2004) 6 SCC 254 and Alchemist Limited Vs. State Bank of Sikkim, (2007) 11 SCC 335 that no cause of action lies, even at the stage of the Final Findings, and that the cause of action must exist as a condition precedent before the initiation of a writ petition. Further, the levying of provisional Anti-Dumping Duty, under Rule 13 of the Anti- Dumping Rules, 1995, cannot give rise to a cause of action for the filing of the present writ petitions. 27. He had further submitted that this Court would not have the territorial jurisdiction to entertain the present writ petitions, as per the decision of the Supreme Court, in ONGC Vs. Utpak Kumar Basu, (1994) 4 SCC 711. Further, no prejudice had been caused to the petitioners by the Disclosure Statement issued by the Designated Authority, under Rule 16 of the Anti-Dumping Rules, 1995. The Disclosure Statement issued by the designated authority is only a disclosure of all the essential facts under consideration, by the said Designated Authority before arriving at the Final Findings, under Rule 17 of the said R....
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....sponsive to consumer preferences. The advantages of perfect competition are threefold: allocative efficiency, which ensures the effective allocation of resources; productive efficiency, which ensures that costs of production are kept at a minimum and dynamic efficiency to promote innovative practices. These factors, by and large, had been accepted all over the world as the guiding principles for effective implementation of competition law. 32. Mr.G.Masilamani, the learned Additional Solicitor General, appearing on behalf of the first and the second respondents in the writ petitions had relied on the decision of the Supreme Court, reported in Alchemist Ltd. Vs.State Bank of Sikkim, (2007) 11 SCC 335, to submit that this Court has no territorial jurisdiction to entertain the present writ petitions filed by the petitioners. No cause of action had arisen for the petitioners to file the present writ petitions challenging the Disclosure Statement issued by the Designated Authority, under Rule 16 of the Anti-Dumping rules. He had further submitted that the writ petitions filed by the petitioners are premature in nature, as it would not be open to the petitioners to challenge the Disclosu....
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....rts of the subject goods are being made through the Chennai and the Tuticorin Ports. Provisional Anti-Dumpting Duties have also been levied on the imported goods, by the authorities in Chennai. As such, it can be held that, atleast a part of the cause of action for the filing of the writ petitoins had arisen within the territorial jurisdiction of this Court. Further, it is noted that, on certain earlier occasions, this Court had entertained writ petitions, wherein, similar issues had arisen, as in the present cases. Therefore, the contentions raised on behalf of the respondents concerned stating that this Court does not have the jurisdiction to entertain the writ petitions cannot be accepted. Accordingly, this Court holds that the writ petitions are maintainable, before this Court. 34. However, the contentions raised on behalf of the respondents stating that the present writ petitions filed by the petitioners, challenging the Disclosure Statement, dated 6.9.2012, issued by the Designated Authority, are not sustainable in law. It is noted that the Designated Authority has issued the Disclosure Statement, dated 6.9.2012, under Rule 16 of Anti-Dumping Rules, 1995. The Disclosure Stat....