TaxTMI 
TaxTMI 
2016 (12) TMI 899
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.... Bench of this court while issuing notice and granting ad-interim relief, passed the following order: "1. Heard learned counsels appearing for the petitioners. 2. As, in this group of four petitions there is a common challenge to the Disclosure Statements dated 14.09.2016 under Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury Rules, 1995 (hereinafter referred to as the Rules for the sake of brevity), inviting the domestic industries to reflect upon and make their submissions on the mid-term review of dumping duty existing on the product called Soda Ash since 03.07.2012 and 18.04.2013, came to be imposed under Section 9A of the Customs Tariff Act, hence, they were heard together and this order is passed after hearing the counsels on the aspects of challenge to the said Disclosure Statements. 3. Learned counsels for the petitioners invited Court's attention to the provision of Section 9(A), 9(B) and the facts of the matter to indicate that the Anti-Dumping duty imposed and being levied from 03.07.2012 is ordinarily to enure for a period of five years, which would end on 03.07.....
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.... for validly undertaken exercise. In the instant case, the Disclosure Statement contains conclusion and it does not adverted to the aspects of injury and when the statement contains a positive findings qua the price under cutting and that increased in dumping activities, then the paragraphs characterized to be final conclusion, would reveal lack of proper appreciation of even the facts, which were otherwise available to the authorities. 7. In that view of the matter, it was urged that let the authorities may not at least render its final findings, and it be directed to afford sufficient opportunity with all the requisite material to the petitioners, or else the petitioners and other interested parties will be subjected to a decision and a finding in which there will be clear breach of principles of natural justice. 8. We are of the considered view that prima facie the submissions made on behalf of the petitioners appears to be correct, as the essential aspects on the threat of injury to the domestic industries is conspicuously absent in its advertence, as could be seen from the Statements of Disclosure in question. 9. The counsels for the petitioners also are prima facie c....
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....r; (i) in case of Meghani Organics Ltd. Vs. Union of India, reported in 2011 (267) E.L.T. 440 (Guj.). (ii) in case of Sandisk International Ltd. Vs. Designated Authority, reported in 2015 (322) E.L.T. 846 (Del.). (iii) in case of Designated Authority, Ministry of Commerce And Industry And Another Vs. Indian Metals & Ferro Alloys Limited, reported in (2009) 2 Supreme Court Cases 510. The authorities be permitted to go on with the inquiry and petitioners may also shall place on record with the authorities their submissions, but the final findings may not be rendered without there being sufficient opportunity and supply of material legitimately admissible to the petitioners, as the Disclosure Statements, as on date, clearly indicates that there are vital information, which has gone into consideration by the authorities without they being available to the petitioners, as many columns have been containing asterisk marks, and figures have been withheld from the interested parties. 13. In that view of the matter, let there be Notice returnable on 17.10.2016. 14. In the meantime and till the returnable date, the respondent no.2 is restrained from rendering the final findi....
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.... captioned petitions: "1. Mr.Nirzar Desai, learned Standing Counsel for respondents No.1 and 2, states that he would be filing an affidavit-in-reply on behalf of the Designated Authority during the course of the day. 2. Mr.S.N.Soparkar, learned Senior Advocate, with Mr.Gaurav Mathur, learned advocate for the petitioner in each of the petitions, submits that the matters may be kept in the next week to enable the petitioner to deal with the affidavit-in-reply filed on behalf of respondent No.2. 3. The learned advocates for the newly joined parties have objected to the extension of the interim relief. However, considering the fact that Court is inclined to hear the matters on the next date of hearing, such objection is not entertained at this stage. 4. Stand over to 30.11.2016. The parties are expected to complete all their pleadings by then. Ad-interim relief granted earlier to continue till then." 5. On 26.11.2016, the petitioners moved applications being Civil Applications No.11929 of 2016 and No.11930 of 2016 in Special Civil Applications No.16426 and 16427 of 2016 respectively, praying that the respondent No.1 be restrained from acting upon the final findings dated....
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....unsel, it appeared that in effect and substance, what the respondent wanted to contend was that having regard to the facts and circumstances of the case and the statutory scheme governing the anti-dumping duty, the petition should not be entertained and hence, the court proceeded to hear the learned counsel for the petitioner on the merits of the main case in view of the fact that vide order dated 15.11.2016, it was observed that the matters were to be heard on the next date of hearing and the parties were also directed to complete their pleadings by then. The hearing spilled over to 08.12.2016 and the matter was taken up for hearing at the commencement of the first session. After the learned counsel for the petitioners had argued for the entire session, at the end of the session, Mr. Nankani, learned counsel for the respondent No.7 submitted that the pleadings are not yet complete and that the matter may only be heard on the question of maintainability, admission and interim relief. It was submitted that the respondent No.7 had been joined only on 29.11.2016 and has not had the opportunity to file a counter and that considering the detailed submissions made by the learned counsel ....
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....6 of the Constitution of India and dismiss the special leave petition." 9.1 Reliance was also made upon the decision of the Supreme Court in the case of Tata Chemicals Ltd. (2) v. Union of India, (2008) 17 SCC 180, to submit that having regard to the provisions of rules 17 and 18 read with section 9C of the Tariff Act, the petition is not maintainable as there is no decision of the Central Government accepting the determination. It was, accordingly, urged that the petitions deserve to be dismissed at the threshold on the ground of being not maintainable. 10. Mr. Vikram Nankani, learned counsel for the respondent No.7 in Special Civil Application No.16426 of 2016, submitted that the petition was filed at the stage of disclosure statement made under rule 16 of the rules. The petitioner has simultaneously participated as a member of the Alkali Manufacturers Association of India which raised objections which were duly considered by the designated authority. It was contended that the petitions which were filed at the stage of disclosure statement have been rendered infructuous in view of the subsequent events which have occurred. Now, the challenge is to the final findings, which ....
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.... Gujarat Ceramic Floor Tiles Mfg. Association, (2005) 12 SCC 454, and more particularly, paragraphs 3 and 4 thereof, to submit that in view of the provisions of section 9C of the Tariff Act, whereby the appeal lies to the Tribunal, this court ought not to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. It was submitted that while it is true that there is no remedy against a final disclosure, however, in exercise of powers under article 226 of the Constitution of India, the High Court will not pre-empt the Central Government from exercising powers under the Act and the rules. It was submitted that the final findings are mere recommendations which may or may not be accepted. The Central Government is vested with powers under rule 18 of the rules to accept or not to accept such recommendations. It was submitted that when final findings are subject to approval of the Central Government, it is that power of the Central Government which is sought to be taken away and the entire machinery under the rules is sought to be frustrated. It was submitted that the power of the Central Government is discretionary, plenary and not restricted under rule 18 of....
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....on of the court was invited to the averments made in paragraph-19 of the memorandum of petition wherein, it has been averred that the petitioner is also a member of the Alkali Manufacturers' Association of India and it is possible that the said Association or any other member may, without any intimation to the petitioner, prefer proceedings before this court or any other High Court. It was submitted that in this background, the withdrawal of the petition before the Delhi High Court may not be taken into consideration. It was submitted that moreover, the order of the Delhi High Court does not say that the petition was withdrawn with a view to prefer an appeal before the CESTAT. It was, accordingly, submitted that the only course of redressal available to the petitioners is by way of the present writ petitions. 11.2 As regards why the High Court should exercise powers under article 226 of the Constitution of India, it was submitted that the designated authority is an officer of the Central Government and that designated authority and the Central Government are one and the same. The Central Government is not an appellate body over the designated authority and that the role of the C....
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.... duty. It was submitted that presently the situation is such that despite levy of anti- dumping duty, the designated authority has found that there is dumping, therefore, in case the anti-dumping duty is lifted, there is possibility of immense threat to the domestic industry as there is all likelihood that the immediate result would be that huge quantities of Soda Ash would be flooded in the Indian market at prices lower than the normal prices. It was submitted that another aspect of the matter is that if the final findings go unchallenged, the petitioners' case for continuation at the end of the period is irretrievably gone as the designated authority has found that the injury margin has gone. It was submitted that in these circumstances, given the final findings recorded by the designated authority, the notification has to follow, and even otherwise, the final findings would come in the way of the petitioner when it seeks extension of imposition of antidumping duty. 11.3 Adverting to the merits of the case, it was pointed out that the notification of levy of anti-dumping duty is dated 03.07.2012, which is for a period of five years. The midterm review notification is dated 21.....
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....conclusion that the injury is negligible, he can terminate the investigation. It was submitted that, therefore, when a finding of no injury is recorded by the designated authority, the Central Government has no discretion in the matter. 11.6 The attention of the court was invited to the provisions of rule 23 of the anti-dumping rules, which provide for review and more particularly, to clause (1B) thereof, to submit that under the said sub-rule, the petitioners' right to extension is integrated with review. It was submitted that the final findings seriously prejudice the petitioners' right to seek extension and that if the final findings are erroneous, they can take away such right of the petitioners. 11.7 On the merits of the final findings, it was argued that the entire exercise carried out by the designated authority is without taking into consideration that the domestic injury was operating under a protected regime and that he was dealing with a healthy growth in a protected regime. It was submitted that there is no application of mind that determination is for the period of protective regime. It was submitted that the antidumping duty can be levied only up to the dumping ....
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....ituation which would be impossible of restitution and that the interim relief is required to be continued to protect the rights of the petitioners. 12. On the other hand, Mr. Devang Vyas, learned Assistant Solicitor General, submitted that the final findings have already been submitted by the designated authority and that the Central Government may or may not accept the same. Continuation of the interim relief would hamper the operation of rule 18 of the rules. Today, there is no decision of the Central Government on the final findings and that if the Central Government ultimately does not accept the recommendation, it may result in a futile exercise. It was submitted that the interim relief may, therefore, be suitably modified in terms of the decision of the Supreme Court in the case of Association of Synthetic Fibre Industry v. J. K. Industries Ltd. (supra). 13. Mr. Sitaraman, learned advocate with Mr. Anand Nainavati, learned advocate for the respondent No.5 submitted that the private respondents are domestic manufacturers of detergents and that they have to pay the anti-dumping duty on the soda ash purchased by them. That the cost of soda ash is increasing and that the de....
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....spondents have accepted that against the disclosure statement and the final findings, there is no statutory alternative remedy available to the petitioners. 16. From the submissions advanced by the learned counsel for the petitioners, it can be seen that the disclosure statement has, inter alia, been challenged on the ground that the conclusions recorded therein are final and not tentative, which is in contravention of the principles of natural justice and amounts to arbitrary exercise of powers. The final findings have been assailed, inter alia, on the ground of breach of principles of natural justice for the reason that - (i) the period of sixteen days between the issuance of the disclosure statement and the time limit for publication of final findings was not sufficient for the parties to be afforded a reasonable opportunity of hearing; (ii) the designated authority placed reliance upon material and facts for concluding the issue against the petitioners which did not form part of the disclosure statement; (iii) while an element of confidentiality is permitted, however, the same cannot be transgressed beyond a certain limit whereby, it amounts to infringement of the principles....
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....atural justice or where the proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the present case, apart from the fact that there is no effective or efficacious remedy against the disclosure statement or the final findings, the petitioners have alleged that there is a breach of the principles of natural justice. Therefore, in the absence of any alternative remedy being available the question of operation of the bar of alternative remedy would not arise. Even otherwise, in the light of the contentions regarding breach of principles of natural justice, the petition even otherwise is maintainable. The contention that the petition is not maintainable, therefore, does not merit acceptance and is, accordingly, rejected. 18. As regards the decisions on which reliance has been placed on behalf of the respondents to contend that the petitions are not maintainable, this court is of the view that none of the said decisions in any manner support the case of the respondents. On the contrary the Supreme Court in Association of Synthetic Fibre Industry v. J. K. Industries Ltd. (supra) has categorically held thus: "8. Though we are confident that the High Cour....
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....y at large. The Supreme Court held that this was no reason at all, as the economic impact of every case of alleged dumping would necessarily affect the people of the country at large and that if such reasons were to be accepted as a valid basis for exercise of judicial discretion to entertain the writ petition in its extraordinary jurisdiction under Article 226 of the Constitution, then the provisions for appeal against the orders passed by the designated authority in respect of anti-dumping issues would be rendered otiose. 21. As regards the contention that the final findings of the disciplinary authority are merely recommendatory and, therefore, the petition being premature ought not to be entertained, in Alembic Ltd. V. Union of India (supra), on which reliance has been placed on behalf of the respondents, this court in paragraph 31 of the reported decision has held that "Sub-rule (1) of rule 18 uses the word 'may'. Unless there are sufficient reasons it would not be possible for the court to read the word 'may' as 'shall'. In comparision to this, sub-rule (4) of rule 17 provides that if final finding of the designated authority is negative, the Central Government shall withd....
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.... for sustaining the interim orders dated 25-1-2005 and 16-2-2005 passed by the High Court. The same are directed to be vacated. The designated authority may submit its final findings to the Central Government and the same shall also be available for being published by way of notification. The Central Government may take its own decision on such findings in accordance with law. Needless to say, all these steps including the imposition of anti-dumping duty, in the event of the Central Government forming an opinion to do so, would be subject to the result of the writ petition pending in the High Court and the High Court does have power to grant an interim relief at any stage of the proceedings subject to a case in that regard being made out. That is what the law is. The decision of the Central Government in the matter of anti-dumping duty is appealable and also subject to writ jurisdiction on well-settled parameters of constitutional law." 24. Thus, the Supreme Court, in a case where the High Court had directed that the final findings to be kept in a sealed cover, was expressed the view that if the process is delayed and the time-limit laid down for any of the stages expires withou....
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....ory period lapses, albeit on account of the interim relief granted by this court, the entire proceedings may stand frustrated. Insofar as the submission that this court may clarify that the respondents shall be entitled to exclusion of the period during which the interim order operates while computing the period of three months under rule 18 of the rules is concerned, it may be noted that whenever the Legislature wanted to grant the benefit of extension of time when proceedings are stayed by the court, it has expressly provided for the same. For example, section 11A of the Land Acquisition Act, 1894 provides that the Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. The Explanation thereto, however, provides that in computing the period of two years referred to in the section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. However, neither the Customs Tariff Act, 1975 nor the Anti-Dumping Duty ....
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....nces of the case as discussed hereinabove, this court of the view that the balance of convenience lies in favour of the petitioners. However, in the light of the above discussion, the interim relief as granted earlier cannot be continued as the same may result in the lapse of the statutory period and render the proceedings infructuous. That, however, does not mean that the petitioners are not entitled to any interim relief. As per the submissions advanced by the learned counsel for the petitioners, in case the Central Government accepts the recommendations and issues a notification revoking the antidumping duty, there is likelihood of large scale dumping of soda ash in the domestic market which would prejudicially affect their rights, whereas on behalf of the private respondents/domestic consumers it has been contended that any delay in issuance of a notification under rule 18 of the rules by the Central Government prejudicially affects them as they would not be entitled of refund of the anti-dumping duty paid by them in the interregnum as their rights get crystallised only upon issuance of a notification. In this backdrop, the court is of the view that the interests of all the par....
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....riod between the lapse of the provisional duty and imposition of the final duty. The court further observed that rule 21 has been made to carry out what is stated in clause 10.3 of the WTO Agreement. Rule 21 (2) echoes what is already found in section 9-A(2). If provisional anti-dumping duty is found higher than the final anti-dumping duty, the differential shall be refunded to the importer. But sub-rule (1) goes a step further and states that if the anti-dumping duty final imposed is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. The court observed that it is obvious that this rule has been framed in the interest of international trade and it is in this background that the court held that the delicate balancing act between protection of domestic industry and the hardship caused in the course of international trade has thus been tilted in favour of the latter. The court has not laid down any absolute proposition of law that in every eventuality, the balance would tilt in favour of international trade. In the opinion of this court, the above decision would have no applicability to the facts of the present ca....