TaxTMI 
TaxTMI 
2005 (5) TMI 643
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....dent No. 2 issued a letter dated 5.3.2004 to some of the manufacturers of compressors in India and specified the product under consideration as "compressors of a kind with cooling capacity below 600 BTU per hour used in refrigerating equipment or hermetically sealed compressors." Through the aforesaid letter the petitioner was called upon to furnish the following information: - a) Whether the Indian manufactures support, oppose or are neutral to the proposed investigation? b) Whether the manufacturers in India manufacture subject goods for self-consumption or sale. c) The manufacturers were asked to provide production figures, self-consumption figures, domestic sale and export sale figures from 2000-01 to December 2003. The respondent No. 2 also called for the said information for January 2003 to December 2003. d) The manufactures were also called upon to state whether the manufacturers themselves imported subject goods. 6. The respondent No. 2 also initiated the investigation vide initiation notification dated 19.7.2004 into the alleged dumping of certain compressors originating in or exported from China and Malaysia. 7. The period of inve....
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.... or on behalf of the domestic industry: Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the like article by the domestic industry, and (b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that that there is sufficient evidence regarding (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. Explanation-For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by the portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. 12. After referring Rule 5 Mr. Kuhad submits that there are certain mandatory requirements for valid initiation of an investigation and after being satisf....
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....sthan. 19. The maintainability of writ petition is also challenged on the ground of alternative remedy as the petitioner has not approached with clean hands and it has concealed the fact that its registered office and the corporate office are in Delhi and Gurgaon respectively. 20. So far as the preliminary objections are concerned, learned counsel for the respondent Nos. 3 and 5 submitted that the petition is premature as in the petition the petitioner has challenged initiation of anti dumping investigation. After investigation if the Designated Authority arrives at preliminary findings or final findings that the exporters from China and Malaysia have been dumping certain compressors in India, which has caused material injury to the domestic industry, the Designated Authority can only make a recommendation to impose anti-dumping duties. It is only when the Central Government accepts these recommendations that anti-dumping duties would be imposed, it is only at that stage that the petitioner would suffer any harm on the basis of which it could maintain a writ petition but even then it has the alternative remedy of an appeal. 21. While raising the preliminary objections lear....
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.... Malaysia and that it is open to the Petitioner to participate in the proceedings before the Designated Authority and put forth its views, which admittedly the petitioner has done. Ultimately, in case the Designated Authority arrives at a conclusion that no imposition of anti- dumping duty is called for, the investigation would be terminated/closed under Rule 14 of the Rules. Further, even in case the Designated Authority arrives at the preliminary finding under Rule 12 or final findings under Rule 17 that it is desirable to impose anti-dumping duty on the goods in question, it can only make a recommendation in this regard to the Central Government and the final decision regarding the imposition of provisional duties under Rule 13 or final duties under Rule 18 can be made only by the Central Government. 26. Learned counsel for the respondents also referred the case of Rajasthan Textile Mills v. Dir. General of Anti-Dumping (2002 (149) E.L.T. 45), wherein the Court has held that a writ petition against an anti-dumping investigation is maintainable. After referring this judgment it was submitted that this was in the context of a case where preliminary findings had already been iss....
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.... by the petitioner herein was premature. We enquired from the learned counsel for the Union of India as to what action, if any, the Union of India proposes to take in this matter. Learned counsel was unable to say anything in the absence of instructions to him in this behalf. With this kind of response of the Union of India, it is difficult to doubt the correctness of the decision of the High Court that the writ petition was premature. It is difficult to doubt the correctness of the decision of the High Court that the writ petition was premature. This being so, we do not consider it necessary to examine the question raised in this special leave petition because there does not appear to be any likelihood of any imminent prejudice to the petitioner." 30. The petitioner replied the preliminary objections and submitted that this Court lias territorial jurisdiction because of the reason that the petitioner has a plant to manufacture refrigerators at Vigyan Nagar, Opposite RIICO Office, Shahjahanpur, District Alwar (Rajasthan). Anti-dumping Rules provide specific right to the industrial user under Rule 6(5). It is also undisputed position that the petitioner is an industrial user of s....
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....e matter. 36. Learned counsel for the petitioner also tried to distinguish all the judgments, which are referred by the respondents so far as the territorial jurisdiction is concerned. The concept of cause of action has been explained in the case of Rajasthan High Court Advocate Association v. Union of India (2001(2) SCC 294 : RLW 2001(1) SC 73), wherein the Hon'ble Supreme Court has held as under:- "The expression "cause of action" has acquired a judicial-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. 37. So far as the argument advanced on behalf of the respondents that the writ petition is not maintainable as being premature, learned counsel for the petitioner referred a judgment passed by the Division Bench of this Court in Rajasthan Textile Mills v. Designated Authority (D.B. Civil Writ Petition Nos. 4629/2001 and 718/2002 decided on 29.5.2002 reported in 2002 (149) E....
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....es (1997(96) ELT 21 (SC) and CCE v. Charminar (). 43. On merit also learned counsel for the petitioner submits that Rule 5 creates jurisdiction for initiation of investigation confers the power in conditional terms. He referred Rule 5(1), (2) and (3). After referring Rule 5 Mr. Kuhad submits that the Designated Authority's power to initiate an investigation is conditioned by a statutory obligations to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of domestic industry. There is a condition precedent that the Designated Authority is restricted to not initiate an investigation unless (a) it determines that the application is on behalf of domestic industry and (b) it examines and satisfies itself that there is sufficient evidence regarding dumping injury and casual link etc. 44. In the instant case, the Designated Authority did not even apply its mind to this issue. To this effect he referred the order dated 19.7.2004 wherein under para 2 at para 69 of paper book, the designated Authority merely held ipse-dixit that "after examining the details of evidences and responses from the known procedures i....
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....sel for the respondents also controverted the fact that any part of the cause of action has arisen within the territorial jurisdiction of this Court as the petitioner has its registered office at New Delhi and Corporate office at Global Business Park, Gurgaon. 49. Learned counsel for the respondents also submits that the writ petition challenges the initiation of the anti-dumping investigation, which took place at New Delhi. All of the actions taken by the Designated Authority that have been complained against by the petitioner in the writ petition in support of the cause of action also took place at New Delhi. The petitioner has its registered office at New Delhi and has also been participating in the investigation from New Delhi through its consultants. The prayer in the writ petition is to quash the initiation notification made at New Delhi and to restrain the respondent No. 2 Designated Authority from proceed in with the investigation, which is taking place at New Delhi. It is therefore, submitted that no part of the cause of action arises or has arisen within the territorial jurisdiction of this Court. 50. It is also contended that the petitioner has not approached this ....
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....ed 19.7.2004. The reliefs are claimed by the petitioner to issue a writ of certiorari for quashing and setting aside initiation notification dated 19.7.2004 and to restrain the respondent No. 2 from proceeding further in the matter of investigation. 57. I carefully considered rival submissions on this point and examined the judgments referred by the respective parties. Considering the submissions advanced on behalf of the respondents it is not disputed that the petitioner has challenged the initiation notification dated 19.7.2004 and it is also not disputed that the notification dated 19.7.2004 is nothing but mere a show cause notice issued by the Designated Authority to exporters as to why anti-dumping duties should not be levied on their exports of certain compressors originating in or exported from China and malaysia on the basis that such compressors are being dumped. 58. I carefully considered the judgment of Hon'ble Supreme Court rendered in the case of Dr. Shashank v. Commissioner of Customs (supra) wherein the Hon'ble Supreme Court has held as under:- "We see no reason to interfere with the order of the High Court which dismissed the writ petition fil....