TaxTMI 
TaxTMI 
2017 (2) TMI 1206
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....ADVOCATE WITH MR PARITOSH R GUPTA, ADVOCATE FOR THE RESPONDENT ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Since common questions of law and facts arise in all these petitions, the same were taken up for hearing together and are decided by this common judgment. 2. For the sake of convenience, reference is made to the facts as appearing in Special Civil Application No.16426 of 2016. 3. This petition has initially been filed challenging the disclosure statement dated 14.09.2016 (Annexure "J" to the petition) issued by the second respondent - designated authority. However, during the pendency of the petition, the final findings came to be issued on 23.09.2016, and hence, an amendment came to be moved which was granted whereby the petitioners were permitted to challenge the final findings. While granting interim relief in the matter, this court by an order dated 13.12,2016 had permitted the first respondent - Union of India to issue a notification under rule 18 of the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as "the rules" if it d....
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....Final Soda Ash notification, the second respondent did not consider it fit to include, inter alia, the cost towards freight incurred for Soda Ash while computing the margin of injury for deciding the quantum of anti-dumping duty, though it included the freight cost incurred on the imported product up to the Indian ports. Such non-inclusion of freight came to be challenged by the Alkali Manufacturers' Association of India by way of Writ Petition (Civil) No. 4345 of 2013 before the High Court of Delhi, wherein the constitutional and legal validity of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 were also challenged. The said petition at the relevant time was pending before the Delhi High Court. 7. It is further the case of the petitioners that the Final Soda Ash notification was followed by the issuance of Notification No. 34/2012-Customs (ADD) dated 3.7.2012 issued by the Department of Revenue, Ministry of Finance, Government of India under section 9A (1) of the Act read with rules 18 and 20 of the Anti-Dumping Rules, notifying anti-dumping duties on import of Soda Ash originatin....
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....tic producers. Details of this capacity expansion were in particular verified by the officers of Directorate General of Anti-Dumping Duty and allied duties at the time of on the spot visit to the factory of the petitioner. Non consideration of expansion being undertaken by the domestic industry would render the entire expansion of the petitioner and other domestic industry unviable; e. The cost of freight ought to have been included while calculating the margin of injury to the domestic industry. Such non consideration is already challenged before the Delhi High Court which is pending; f. The designated authority is required to consider the price at which the producers/exporters in Exporting Countries export the concerned article to other countries to determine whether Anti-Dumping Duty is necessary or not, the capacity addition in Exporting Countries and surplus capacity of the manufacturers of Exporting Countries. 8. It is further the case of the petitioners that on 12.09.2016, a hearing/meeting came to be held between the representatives of the domestic industry and the designated authority, where further submissions dated 11.09.2016 were handed over. The Petitioners' r....
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....the next date of hearing. 12. It is the case of the petitioners that vide email dated 26.09.2016 sent at 1:32 p.m., the advocate for the petitioner intimated the designated authority of the above referred order and that at that time the final findings were neither uploaded on the website of the respondents nor communicated to the petitioners or their representative. The designated authority vide email dated 26.09.2016 at 04:28 p.m. intimated that they had vide Notification No.15/28/2015-DGAD dated 23.09.2016 issued the final findings. It is the case of the petitioners that to the extent the final findings are merely a reproduction of the impugned disclosure statement dated 14.09.2016, the same are illegal. The petitioners have alleged that on account of the fact that the issuance of the above notification was communicated by the designated authority after it was informed of the order dated 26.09.2016 passed in this petition, the same appears to be back-dated and the petitioners believe that the final findings are non est in the eye of law. However, out of abundant caution, the petitioners have challenged the legality and validity of the final findings. Subsequent thereto, in vie....
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....v Mathur, learned advocate for the petitioners assailed the impugned disclosure statement by submitting that in effect and substance the designated authority has finally decided the issue of continuance of anti-dumping duty and has concluded that though dumping continues and is likely to be intensified in future, there is no warrant for continuing the remedy of antidumping duty on Soda Ash since one of the parameters for determining injury, namely price undercutting is absent. According to the learned counsel the designated authority exceeded its jurisdiction under rule 16 of the Anti-Dumping Duty Rules in issuing the disclosure statement inasmuch as the designated authority has no jurisdiction to decide on the issue of continuance of anti-dumping duty. It was submitted that the objective of a disclosure statement is that the designated authority may collate the facts and present them to the parties so as to enable them to respond to and/or object to the same. It was pointed out that the designated authority has in fact called upon the interested parties to respond to the disclosure statement, to submit that while doing so it could not have decided the mid-term review finally ma....
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....ticle 6.9 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (hereinafter referred to as the "Anti-Dumping Agreement"), which inter alia provides that such disclosure should take place in sufficient time for the parties to defend their interests, to point out that sufficient time is in-built in rule 16 of the rules read with article 6.9 of the Anti-Dumping Agreement. It was submitted that therefore, the time was insufficient in case of both the parties. As regards what can be said to be a reasonable time, the learned counsel submitted that computation of the non-injurious price as well as certain other essential facts were not provided to the petitioners and that it is the case of the designated authority that if such computation were asked for, the same would have been furnished. It was submitted that if this be the position it is clear that the six days' time for responding to the disclosure statement is highly inadequate. Reference was made to the Dumping and Subsidy Manual, Australia on which reliance was placed on behalf of the fourth respondent, to submit that the same provides for twenty days' time after publication of the Sta....
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....d dumping margin to the domestic industry. According to the learned counsel, the following information has wrongly not been disclosed: (i)While determining the dumping margin, the designated authority has failed to disclose the basis for determining normal value and export price. The designated authority has not disclosed the computation and methodology; (ii) While determining the price suppression and depression effect, the designated authority has considered the value for cost of sales and selling price based on the data submitted by the domestic industry, but has failed to disclose the data to the domestic industry itself; (iii) While determining price undercutting, the value for net sales realisation and price undercutting are calculated based on the data provided by the domestic industry, but actual figures and methodology are not disclosed; (iv) While determining price underselling, the designated authority has not furnished the Non Injurious Price (NIP) for the Post Period of Investigation; (v) While determining data relating to inventories, the designated authority has made use of the data submitted by the domestic industry, but has failed to disclose the sam....
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....whether in the absence of such continuance, dumping would increase or recur and the domestic industry suffers. It was submitted that the designated authority has failed to confine the investigation to the grounds for seeking review in the initiation notification and has also not applied correct tests for ascertaining the likelihood. It was contended that the designated authority has put the onus on the petitioners to show that there is need for continuation of duty, whereas it was for the applicant importers to demonstrate that in the absence of duty, there would be no dumping or injury. According to the learned counsel, for the duty to be withdrawn before the expiry of the five-year period, all the factors must indicate that duty is no longer warranted, which implies an 'elimination process'. However, the authority has examined whether there is a need for continuation and not a need for withdrawal of the duty. It was submitted that the examination of the likelihood of injury to the domestic industry on the revocation of duty is based on the threat parameters, such as, production capacity of the foreign exporters, their inventories, etc. and that this information is in the exclusiv....
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....es as the basis for the likelihood test. Referring to the findings recorded in the disclosure statement, it was pointed out that criteria (i) and (iii) postulated in para (vii) are admittedly met with in the facts of the present case, which is sufficient to continue the duty, whereas there is no analysis as regards criteria (ii) and (iv) in the final findings. It was contended that even if one of the parameters indicates likelihood of injury, the duty is to be continued and in fact, it is for the applicant to establish, that there is no likelihood of injury in respect of all the parameters, which it has failed to do so. 14.9 It was further pointed out that the designated authority has heavily relied upon the injury margin as a parameter, whereas the injury margin is not a relevant parameter under section 9A(5) of the Customs Tariff Act, 1975 (hereinafter referred to as the "Act"). It was pointed out that Annexure-II to the rules lists the relevant parameters for determination of injury, however, non-injurious price (NIP) does not figure in this list. It was submitted that Annexure-III to the rules clearly states that NIP is determined only for the purpose of quantification....
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....t the designated authority has not taken the figures given by the domestic industry at face value and has made adjustments. The designated authority has adopted figures according to what it perceived to be correct and has worked out the non-injurious price, under the circumstances, the breakup of the NIP calculation ought to have been given. Reference was made to the decision of the Supreme Court in Reliance Industries Ltd. V. Designated Authority, 2006 (202) ELT 23 (SC), for the proposition that the purpose of section 9A of the Act is to maintain a level-playing field and prevent dumping, while allowing healthy competition. The concept of anti-dumping is founded on the basis that a foreign manufacturer sells below the normal value in order to destabilize domestic manufacturers. Dumping in the short term, may give some transitory benefits to the local customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run. Reference was also made to paragraph 40 of the decision wherein the court has noted that the DA claimed confidentiality from the appellant about its finding on the data supplied by the ....
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....ities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures". It was pointed out that this sentence has been interpreted by a Panel of the WTO Dispute Settlement Body (DSB) in case of China - Countervailing and Anti-dumping duties on Grain Oriented Flat Rolled Electrical Steel from United States (WT/DS/414/R) to mean that in order to apply definitive measures at the conclusion of countervailing and anti-dumping investigations, an investigating authority must find dumping or subsidization, injury and a causal link. Therefore, the "essential facts" underlying the findings and conclusions relating to these elements form the basis of the decision to apply definitive measures and should be disclosed. It was pointed out that the above decision of the Panel was considered by the Appellate Body of the WTO DSB and it was confirmed. The learned advocate also placed reliance upon the decision of the Appellate Body (as reproduced in WT/DS/454/AB/R and WT/DS/460/AB/R), wherein as to the scope of information that must be disclosed, the Appellate Body has expl....
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....ent should be read and understood in the light of paragraph-3 of the letter forwarding the disclosure, wherein it has been stated that, "Notwithstanding the facts given in this Disclosure Statement (including facts given on a confidential basis), the Designated Authority would consider all replies given, on merits, in order to arrive at a final determination." It was submitted that the designated authority has reiterated the same once again at the end of the disclosure statement wherein it has been stated that the authority would conclude on the matter after receiving the comments of the interested parties on this disclosure statement. It was submitted that the above observations in the disclosure statement clearly reveal that the conclusions recorded in the disclosure statement are tentative and not conclusive, as sought to be contended on behalf of the petitioners. 16.3 As regards the contention that insufficient time was not granted for filing the comments, it was submitted that the authority had granted six days' time to file comments on the disclosure. It was submitted that the conclusions are coming towards the close of the investigation and are based on the facts prese....
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....mit for comments on disclosure given during the original investigation must have been less than the time given in the current mid-term review. 16.6 As regards the contention that insufficient and inadequate time had been granted for the purpose of defending the interests of the petitioners, reference was made to rule 6(7) of the rules, which corresponds to article 6.4 of the ADA, to submit that the same provides that the authorities shall, whenever practicable, provide timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 5, and that is used by the authorities in an antidumping investigation and to prepare presentations on the basis of this information. It was submitted that the words 'whenever practicable' are noteworthy. It implies that there may be constraints in providing opportunities as and when sought. It was submitted that there is no allegation that the authority did not grant any opportunity during the course of the investigation and that when the disclosure statement is issued at the fag end of the investigation after following the procedure prescribe....
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....inuation will arise when the domestic industry is still suffering material injury, however, when the industry is not suffering material injury currently, one must examine whether the injury is likely to recur, if the duties are withdrawn. 16.9 It was submitted that in this case, as the domestic industry was not suffering any material injury, it was incumbent upon the designated authority to consider whether it is likely to recur. It was submitted that there is no guidance in the law either in the anti-dumping agreement or in the Indian provisions about the way a likelihood of recurrence of injury is to be conducted and that the law has left it to the wisdom of the investigating authority. According to the learned counsel, the relevant question is whether an analysis of the likelihood of recurrence of injury is the same as or somewhat similar to an analysis of threat of injury. It may not be appropriate to equate likelihood of recurrence of injury to that of threat of material injury. A likelihood of recurrence determination is wider in its scope and ambit than a determination of threat of injury and that even if all the four factors mentioned in the relevant rules are absent, li....
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....sidered a number of other factors such as volume of exports post POI, market share of subject countries in the Indian market, price attractiveness of Indian market, export orientation of foreign producers, level of current and past dumping margin, etc., in the likelihood analysis. According to the learned counsel, if at all, such issue may be agitated in an appeal before the appellate authority and not before the High Court while invoking its writ jurisdiction. 16.13 On the question of use of Non-Injurious Price in the injury analysis, it was submitted that the petitioners have alleged that the authority has used the Non-Injurious Price (NIP) determined for the domestic industry in the injury analysis and that has vitiated the analysis and that NIP is an irrelevant factor in the injury analysis. According to the learned counsel, nothing could be farther from the truth. It was submitted that in this regard, it is necessary to examine the scope and ambit of the injury analysis as prescribed under the rules. Reference was made to Annexure II to the rules which prescribe the principles for determination of injury. It was submitted that determination of injury involves examination of....
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....tilisation, inventories, etc., and that NIP has not been used at all. It was submitted that in fact, the factor relating to profits requires special attention in this regard. It was pointed out that the designated authority examines the actual profit earned by the domestic industry. In indexed terms, profit per MT has increased from Rs. 100 in 2011-12 to Rs. 176 in 2012-13, it has declined marginally to Rs. 146 in 2013-14 and has then increased to Rs. 293 during POI and has further increased to Rs. 356 during post POI. This increase relates to actual profits and not notional profits and there is no use of NIP for this analysis also. Even the return on investment examined here is based on actuals and not based on NIP. It was, accordingly, argued that the contention that an irrelevant factor named NIP has been used in the injury analysis is without any factual basis and is liable to be rejected. 16.16 As regards where exactly NIP has been used and how, it was submitted that for this purpose it is necessary to look as to what use the NIP has been put to. It was submitted that NIP has been used to determine what is known as 'injury margin'. This may also be called 'price undersellin....
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....ing even below the NIP. 16.17 Reverting to the facts of the present case it was submitted that price undercutting was 5%-10 % during the POI and 0%-5% during the Post POI. During the POI, landed values of imports coming into India were in the range of USD 253.18 PMT to USD 308.52 PMT. At this landed value, they were below the Net Sales realisation of the domestic industry in the range of 5%-10%. Weighted average landed value of imports from all the countries was Rs. 16820 PMT (or USD 272.65 PMT). Taking the midpoint of the range as the price undercutting, that is, 7.5%, actual net sales realisation was USD 293.10 PMT. It was submitted that the price underselling was negative even at the lowest landed value of USD 253.18 implying that the noninjurious price was well below USD 253.18. It was submitted that it is not known how much lower the NIP was, however, assuming it to be USD 250, which is marginally less than the available numbers, the price realised by the domestic industry was more than USD 43 per MT. It was urged that the designated authority took this into account and concluded that there is a need to withdraw the duty. It was contended that the petitioners have been tryi....
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....han the landed price of imports from both Pakistan and EU during post POI and not from all the subject countries. It was submitted that apart from this one error, the petitioners have not pointed out any other errors. 16.20 The learned counsel for the fourth respondent further submitted that while evaluating the impact of this error which may be a ministerial error, conclusions on other factors shall also have to be kept in mind. Referring to the disclosure statement it was pointed out that the designated authority has recorded as follows: "From the above analysis, the Authority notes that neither the listed known parameters nor the other factors analysed above show any injury to the domestic industry either during POI or post POI. The economic health of the domestic industry has improved remarkably during POI as compared to the base year despite continued dumping of subject goods from the subject countries. Further, the post POI performance of the domestic industry also shows positive trends despite continued dumping. Therefore, it's a scenario of continued dumping without injurious effects on the domestic industry." According to the learned counsel, the error committed b....
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....s are given in the initiation notice itself. The attention of the court was invited to paragraphs 2, 3, 10 and 11 of the initiation notice to submit that in view thereof, there is no merit in the contentions raised by the petitioners. 16.24 As regards the contention of the petitioners that the WTA data used by the designated authority in the final findings had not been disclosed to them, the learned counsel submitted that when certain issues are raised by an interested party as a part of the comments to the disclosure statement, the authority must consider them. It was pointed out that in this case, the domestic industry commented that prices for export from subject countries to third countries have not been considered, to which the designated authority has responded by collecting the relevant data and giving his evaluation in the final findings. It was further submitted that in this case, that data also supported the conclusions already made. It was also submitted that it is not mandatory to issue a second disclosure statement or to make it available to all interested parties at that late stage. According to the learned counsel, in this regard, a parallel may be drawn to the pr....
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....issed. It was also submitted that anti-dumping duty being an economic measure, as has been held by this court in the case of Alembic Ltd, 2013 (291) ELT 327 (Guj), the petition may not be entertained. 17. Mr. Vikram Nankani, Senior Advocate, learned counsel with Mr. Hardik Modh, learned advocate for the seventh respondent submitted that in a matter of this kind, the scope of judicial review is very narrow and confined only to the decision making process and not to the decision itself. It was submitted that the investigation or review in relation to antidumping levy or withdrawal of anti-dumping involves adherence to strict time lines and interference with the same frustrates the very object of the statutory provisions. Therefore, the scope of judicial review of the disclosure statement is very narrow. 17.1 As regards the nature and scope of the disclosure statement, it was submitted that the same is in the nature of a draft order. According to the learned counsel, the disclosure statement under rule 16 of the rules, at best, is an intermediary stage in the final decision and cannot be subjected to judicial review at all. It was submitted that section 9A(5) of the Customs T....
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....closure statement is, therefore, only a intermediary stage of the decision-making process and hence, at this stage, there would be no warrant for exercise of powers of judicial review. Reference was made to the decision of the Supreme Court in the case of Union of India and another v. Meghmani Organics Limited and others, (supra) and more particularly, paragraph-5 thereof, wherein the court has recorded that the appellate authority, namely, CEGAT will always have the power to look into the relevant files including the materials treated as confidential for deciding the issues raised in appeal. It was submitted that therefore, the appellate authority has wide powers under section 9C of the Act and that the wider the scope of powers of the appellate authority, narrower is scope of judicial review. It was emphatically argued that the disclosure statement issued under rule 16 of the rules is not enforceable and is merely a step in aid of completion of investigation, and, therefore, does not give rise to any civil or penal consequences so as to warrant invocation of the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. It was submitted that rule 16 ....
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....16 SCC 116, for the proposition that natural justice cannot be permitted to become an unruly horse. Reference was also made to the decision of the Supreme Court in the case of Vardhman Industries Limited v. Commissioner of Central Excise, Chandigarh, (2015) 13 SCC 400, wherein it was held that an order which does not give rise to any legal rights, cannot be a subject matter of challenge under Article 226 of the Constitution of India. Reference was also made to the decision of the Supreme Court in the case of Uttar Pradesh Power Corporation Limited v. National Thermal Power Corporation Limited and others, (2011) 12 SCC 400, wherein the court placed reliance upon its earlier decision in the case of W. B. Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715, for the proposition that the Commission constituted under section 17 of the Electricity Regulatory Commissions Act, 1998 is an expert body and the determination of tariff which has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. That neither the High Court nor the Supreme Court would in reality be appr....
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....as been granted to the petitioners. It was submitted that in these circumstances, the petitioners should not be permitted to take recourse to Article 226 of the Constitution of India. 17.9 Insofar as the submission with regard to necessity of granting sufficient time for the purpose of giving a response to the disclosure statement based on Article 6.9 of the ADA is concerned, the learned counsel submitted that the words "such disclosure should take place in sufficient time for the purpose to defend their interests" as found in Article 6.9 are clearly missing in the rules. It was submitted that therefore, the words which are not found in the rules cannot be read into them and hence, the words "such disclosure should take place in sufficient time for the purpose to defend their interests" cannot be read in rule 16 of the rules. In support of such contention, the learned counsel placed reliance upon the decision of the Supreme Court in case of case Gramophone Company of India Ltd. v. Birendra Bahadur Pandey and others, (1984) 2 SCC 534, for the proposition that the doctrine of incorporation also recognises the position that the rules of international law are incorporated into natio....
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....was shorter as compared to the time given in response to the impugned disclosure dated 14.09.2016. The earlier disclosure dated 10.8.2012, if not more, is equally conclusive and suggestive of imposition of anti-dumping duty because in para 147 of the disclosure statement it is stated that there is dumping, there is injury to Domestic Industry and injury is caused by dumping. Dumping Margin and Injury Margin is also shown to be positive in the earlier paragraphs. It was submitted that with these observations, even though the disclosure statement does not recommend duty in express terms, imposition of anti-dumping duty is inevitable because the disclosure statement establishes dumping, injury and casual link. It was submitted that seen in this context, the impugned disclosure dated 14.9.2016 also does not recommend withdrawal of duty in express terms. In fact, in para 60 of the disclosure statement, it has been expressly stated that the designated authority would conclude the matter after receiving comments from the interested parties. 18.1 The learned counsel further submitted that the disclosure statement under rule 16 of the rules was issued after completing all the stages of i....
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....challenged the disclosure statement before the Delhi High Court in WP no. 8514 & 8628 of 2016, which came to be withdrawn subsequently on 27.9.2016. It was submitted that the association of the domestic industry has also filed its comments on the disclosure statement which has been taken on record and has been duly considered by designated authority; however, the association of the domestic industry is not before the court and the petitioner does not derive a locus standi in the case by filing a one-page letter. 18.5 Next it was submitted that the submission of petitioners that they have not been communicated the calculation sheet for NIP calculation is not correct, inasmuch as at no point of time, have they sought for a copy of the calculation sheet. It was submitted this this is not a case where the petitioners have sought for a copy of the calculation sheet and same has been denied by the designated authority. According to the learned counsel, if the calculation sheet was really not given to them, and if it was vital for them to make comments on disclosure, the petitioners should have requested a copy thereof. 18.6 It was further submitted that the petitioner-Nirma Limited....
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....atically argued that the case of the petitioners is that India should not allow any import at a price lower than their selling price, even though they fix a very high selling price arbitrarily, which cannot be allowed because in an open market economy, the respondents have right to procure raw materials from competitive sources. 18.10 The learned counsel further submitted that all the asterisk marks in the disclosure are actually attributable to claim of confidentiality with respect to net sale realization and NIP calculation by the petitioners' Association. Apart from this, the asterisks appearing in the dumping margin calculation are on account of the fact that every exporter claims his selling price as confidential, the way the domestic industry has claimed confidentiality in their selling price. It was submitted that there is no asterisk mark in the disclosure statement which can be attributed to confidentiality claimed by third respondent or any of the other respondents before the court. Therefore, the disclosure statement does disclose all the essential facts in detail including method of NIP calculation and the asterisk marks in the NIP calculation, price undercutting ....
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....stic industry has claimed confidentiality in those calculations. The discussion in paragraphs 99 and 100 of the final findings supports the analysis done in the disclosure statement and thus the final findings cannot be faulted with on this ground. It was contended that if at all, the petitioners find this analysis to be faulty, the proper remedy is by way of an appeal before CESTAT under section 9C of the Customs Tariff Act, 1975, where the reasoning adopted in final findings can be assailed. 18.14 It was also submitted that the petitioners filed a WP within 6 days, and their association also filed a WP before Delhi HC within 6 days, wherein the impugned disclosure statement has been commented upon at length. Therefore, assailing the time of 6 days given for submitting comments to the disclosure statement before this court is not justified and is being done with ill-will. 19 Mr. Nirzar Desai, learned senior standing counsel for the second respondent - designated authority invited the attention of the court to the averments made in the affidavit-in-reply filed by the second respondent wherein, it has been denied that there was any irregularity in the process of publication of....
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....hed. It was submitted that the issue of nondisclosure of WTA data is without merit since the petitioners could not establish how the injuries would have recurred if the duties were removed when the domestic industry had been showing remarkable performance in terms of various injury parameters. 19.4 Insofar as the contention that the time that was granted from the date of issuance of disclosure statement to the date for filing the comments on the disclosure being very short is concerned, it was submitted that two mid-term reviews were pending before the designated authority in connection with the same product, viz., soda ash, both of which are subject matter of challenge in the present petitions, viz., the mid-term review in relation to China PR, EU, Iran, USA, Ukraine, Pakistan and in relation to Turkey and Russia. It was submitted that insofar as the investigation in respect of Turkey and Russia is concerned, the proceedings were initiated on 01.10.2016 and no extension was sought and hence, the period of twelve months was to come to an end on 30.09.2016 and hence, to avoid the complications which would arise if in one case, the final findings on similar issues are declared on ....
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....e facts and discontinue such duty. Reliance was also placed upon the decision of the Supreme Court in the case of Designated Authority v. Haldor Topsoe A/S. (supra) and more particularly, paragraph- 19 thereof. It was submitted that whether to extend the time or not is an administrative decision of the designated authority and he may exercise his prudence. It was submitted that the principles of natural justice have been duly complied with and the procedure has been followed and all information and objections have been objectively considered and hence, there is no warrant for interference by this court. 20 Mr. Paritosh Gupta, learned advocate for the fifth respondent adopted the submissions advanced by Mr. Sitharaman, Mr. Nankani and Mr. Pramod Kumar Rai. He further submitted that the determination of injury under rule 11 of the rules in respect of whether there is any material retardation would apply only in case of a new industry being established and would not apply to an extension. It was submitted that rule 17 of the rules provides for a period of one year for issuing final findings and that the Central Government has a discretion to extend the time limit under special circ....
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....in China-Measures Imposing Anti- Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan and China-Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the European Union (para 5.133), to point out that in the facts of the said case the WTO Panel had considered that a determination of whether an investigating authority has complied with its obligations under that provision hinges largely on whether the essential facts under consideration by the investigating authority were in the possession of an interested party affected by the determination. The Appellate Body held that contrary to what the Panel stated it does not suffice for an investigating authority to disclose "the essential facts under consideration" but, rather, it must disclose the essential facts under consideration that "form the basis for the decision whether to apply definitive measures". The Appellate Body disagreed with the suggestion of the Panel that a narrative description of the data would constitute sufficient disclosure simply because the essential facts that the authority is referred to "are in the possession of the responde....
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....icial urgency by seeking a shorter extension in one case and no extension in the other case to deny the petitioners sufficient opportunity. It was submitted that the conduct of the authority is contrary to the purpose of the rules, inasmuch as nothing stopped the designated authority from seeking an extension in the second case also. It urged that breach of principles of natural justice is essentially considered as an exception to appellate remedies, which goes to the root of the matter and makes it a clear case for invocation of article 226 of the Constitution of India. 21.4 As regards the contention that there are no civil consequences qua a disclosure statement, reference was made to article 6.9 of the ADA, to submit that the disclosure statement is the first opportunity of essential facts being put to the respective parties to enable them to defend their interest, and hence, is clearly part of the adjudicatory process. The designated authority is essentially rendering quasi-judicial functions, which would permeate at every stage. It was submitted that from the evidence/facts produced by the parties, the designated authority gleans out essential facts. The first stage of the ....
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.... PR and USA, it was pointed out that both the countries have huge surplus of soda ash. It was further submitted that the volume of export to third countries has not been considered by the designated authority; who has also failed to consider the aspect of freight as well as capacity expansion of domestic industries which in fact was placed before it. 21.7 It was further submitted that the likelihood analysis made by the designated authority is based on the current NIP. It was pointed out that the NIP which is computed under Annexure III to the rules is for the determination of quantum under rule 17(1) of the rules and Annexure-III does not find place in the injury determination. According to the learned counsel, at the stage of injury determination, the NIP does not come into picture and that for the likelihood of injury, the designated authority should have taken into consideration the factors of freight also and that on the basis of Annexure-III, the designated authority could not have discarded the contention of the petitioners that freight also should be taken into account both in the case of domestic industry as well as exporters. 21.8 Referring to the final findings dat....
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....rial Development Corporation and another, (2007) 9 SCC 593 (paragraph 20), and Automotive Tyre Manufacturers Association v. Designated Authority and others, (2011) 2 SCC 258, (paragraphs 64 to 75). 22. In the backdrop of the facts and contentions noted hereinabove, reference may be made to the relevant provisions of the Customs Tariff Act, 1975 (hereinafter referred to as "the Act"). Section 9A of the Act provides for "Antidumping duty on dumped articles" and lays down that where any article is exported by an exporter or producer from any country or territory (hereafter in the section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. The explanation thereto, to the extent the same is relevant for the present purpose, reads thus: "Explanation. - For the purposes of this section, - (a) "margin of dumping" in relation to an article, means the difference between its export price and its normal value; (b) "export price", ....
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....Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. 24. Section 9B of the Act, to the extent the same is relevant for the present purpose, reads thus: "9B. No levy under section 9 or section 9A in certain cases. (1) Notwithstanding anything contained in section 9 or section 9A, - (a) no article shall be subjected to both countervailing duty and anti-dumping duty to compensate for the same situation of dumping or export subsidization; (b) the Central Government shall not levy any countervailing duty or anti-dumping duty - (i) under section 9 or section 9A by reasons of exemption of such articles from duties or taxes borne by the like article when meant for consumption in the country of origin or exportation or by reasons of refund of such duties or taxes; (ii) under sub-section (1) of either of section 9 and section 9A, on the import into India of any article from a member countr....
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....itiation of such review. Therefore, the review was required to be completed on 02.07.2016. The proviso to rule 17 of the rules provides that the Central Government may, in its discretion in special circumstances extend the period of one year by six months. On 27.06.2016, the designated authority sought extension of time under the proviso to rule 17 of the rules read with subrule (3) of rule 23 of the rules. 27. By an order dated 15.07.2016, the Central Government extended the time to 30.09.2016. The designated authority issued the disclosure statement under rule 16 of the rules on 14.09.2016 and the parties were told to offer their comments by 20.09.2016, that is, within a period of six days and the final findings were required to be issued on or before 30.09.2016. It is at this stage that the petitioners have approached this court. During the pendency of the petitions, the final findings under rule 17 of the rules have been issued on 23.09.2016 and in the light of the interim order dated 13.12.2016 passed by this court permitting the Central Government to issue the notification under rule 18 of the rules, such notification has been issued on 21st December, 2016, withdrawing ....
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....ut shall be considered together with each such ground. 31. While considering the first contention regarding the designated authority having failed to disclose the essential facts as contemplated under rule 16 of the rules, before embarking upon a discussion as to whether there is any failure to disclose essential facts, it would first be necessary to understand the meaning of the expression "essential facts" as appearing in rule 16 of the rules. Rule 16 of the rules, which deals with disclosure statement, mandates that the designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis of its decision. 31.1 Insofar as the interpretation of rule 16 of the rules is concerned, the learned counsel for the respective parties have placed reliance upon the decisions of the WTO Panel and appellate body of the WTO relating to the interpretation of Article 6.9 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 1994 (ADA). Article 6.9 says that the authority shall, before a final determination is made, inform all interested parties of the essential fac....
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....cision whether to apply definitive measures". This requirement is not necessarily satisfied by the disclosure of the investigating authorities' conclusions on issues of fact that must be resolved before a decision to apply definitive measures is taken. The Panel considered that "essential facts under consideration which form the basis of the decision whether to apply definitive measures" are the body of facts essential to the determinations that must be made by the investigating authority before it can decide whether to apply definitive measures. That is, they are the facts necessary to the process of analysis and decision-making by the investigating authority, not only those that support the decision ultimately reached. 31.4 The Appellate Body of WTO in WT/DS-454/AB/R, WT/DS- 460/AB/R, in the context of scope of information that must be disclosed, has explained that Article 6.9 covers "facts under consideration", that is, those facts on the record that may be taken into account by an authority in reaching a decision as to whether or not to apply definitive anti-dumping duties. Thus, the "essential facts" referred to those facts that are significant in the process of reaching a ....
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....ration and the facts disclosed in respect thereof. It may be noted that the findings recorded by the designated authority in the disclosure statements in both the reviews in question are almost identical and hence, for the sake of convenience and with a view to avoid prolix, reference is made to the findings recorded in the disclosure statement in the review relating to imports from China PR, EU, Kenya, Iran, Pakistan, USA and Ukraine. 32.2 The designated authority has, in the disclosure statement, determined the non-injurious price of the domestic industry as per the guidelines laid down under Annexure-III of the Anti-Dumping Rules. As regards the contention that freight incurred by the domestic industry should be taken into consideration as one of the factors in injury analysis, the designated authority has observed that Annexure-III does not permit such a practice and that the issue is sub-judice before the CESTAT as well as the Delhi High Court. 32.3 Under the heading of cumulative assessment, the designated authority has observed that (i) the margins of dumping from each of the subject countries are more than the limits prescribed; and (ii) the volume of imports from eac....
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....of this analysis, the designated authority has compared the cost of production, net sales realisation (NSR) and the non-injurious price (NIP) of the domestic industry with the landed cost of imports from the subject countries. As regards the price suppression and price depression effect of the dumped imports, the designated authority has examined the same with reference to cost of production, net sales realisation and landed values of the subject goods from the subject countries in relation to the injury period including POI and post POI. The designated authority has noted that the landed price of the imports from the subject countries had increased from 12,939 MT during the base year to 16,820 MT during the POI. The landed price of the subject goods has also increased during the post POI as well. The cost of sales of the domestic industry has also increased during the POI as compared to the base year, but, the increase in cost of sales of domestic industry is much less as compared to the increase in the landed price. During the post POI, while the landed price has significantly increased, the cost of sales of the domestic industry has fallen. As regards price undercutting, the des....
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....domestic industry was positive during POI as well as post POI. As regards ability to raise funds, the designated authority has noted that the domestic industry has not enhanced its capacity of production of the subject goods from the base year, which according to it signifies that their ability to raise capital investment has not been affected. The designated authority has worked out the magnitude of injury and injury margin and has noted that the injury margin is negative in respect of the subject countries during the POI as well as post POI. The designated authority has thereafter recorded its conclusions on material injury as follows: "R. Conclusion on material injury: 82. The Authority notes that while the capacity of production has remained constant throughout the injury period including the POI, the performance of the domestic industry has improved remarkably in terms of production, sales volumes, profit, cash profit, return on capital employed and inventory. The market share has declined during the POI as compared to the base year. During the post POI, the economic parameters has shown continued improvement including increased trend in the market share. Further, the ne....
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....bsp;b. Sufficient freely disposable or an imminent, substantial increase in capacity of the exporter indicating the likelihood of substantially increased dumped exports to Indian market, taking into account the availability of other export markets to absorb any additional exports. c. Whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely to increase demand for further imports and, d. Inventories of the article being investigated." " E xamin ation b y th e Au th ority 53. Rule 23 of Anti-dumping Rules of India requires the Authority to examine the need for continued imposition of the duty from time to time. In this regard, the Authority notes as under: Volume of Exports Post- POI 54. In order to examine, the likelihood of injury to the domestic industry due to dumping of the subject goods from the subject countries, the Authority has undertaken analysis of the volume of exports of the subject goods to India from the subject countries during the POI and post- POI periods. The Authority notes that the volume of the exports from subject countries to India during the POI and post POI on ....
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....as post POI. But, dumping of any magnitude has no relevance under the Indian anti-dumping law as long as it does not cause injury to the domestic industry. In the present investigation, injury margin is negative in the POI as well as post POI periods, thereby indicating no injury to the domestic industry and no likelihood of injury as well in the event of revocation of the duties. 59. The essential facts of the investigation, as analysed by the Authority in this finding, sufficiently prove that the despite continued dumping of subject goods from the subject countries, the economic condition of the domestic industries has improved remarkably and indicate further improvement during the post POI. Thus, the changed circumstances, as alleged by the applicant, are not transient but there to stay in favour of the domestic industries in the event of revocation of the duties. 60. The Authority would conclude on the matter after receiving the comments of the interested parties on this disclosure statement." 32.11 Thus, the designated authority has taken into consideration the aforesaid factors while coming to the conclusion as to whether or not definitive measures are required to be....
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....ke arguments as to the proper interpretation of those facts. The entire body of facts essential to the determinations that must be made by the designated authority before it can decide whether to apply definitive measures are required to be disclosed to the interested parties. A perusal of the tabular form regarding the data which are reproduced in the disclosure statement reveals that at various places instead of the relevant data the table contains asterisks which would indicate that such information is confidential. While it is true that the such information being confidential in nature, cannot be disclosed in the disclosure statement itself, it appears to be the general practice to provide the same to the parties separately. However, in the facts of the present case, despite the fact that the information has been furnished by the domestic industry itself, the computation of the various factors referred to hereinabove, has not been furnished to the domestic industry. In the opinion of this court, it was incumbent upon the designated authority to furnish the relevant facts which have been used by it as the basis for arriving at its conclusion on the essential facts necessary for ....
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....ing such information. 33.3 Rule 10 of the rules provides for determination of normal value, export price and margin of dumping, and postulates that an article shall be considered as being dumped if it is exported from a country or territory to India at a price less than its normal value and in such circumstances, the designated authority shall determine the normal value, export price and the margin of dumping taking into account, inter alia, the principles laid down in Annexure I to the rules. Rule 11 of the rules provides for determination of injury. Sub-rule (1) thereof provides that in the case of imports from specified countries, the designated authority shall record a further finding that import of such article into India (i)causes or threatens material injury to any established industry in India; or (ii) materially retards the establishment of any industry in India. Under sub-rule (2) of rule 11 of the rules, the designated authority is required to determine (i) the injury to domestic industry; (ii) threat of injury to domestic industry; (iii) material retardation to establishment of domestic industry; and (iv) a causal link between dumped imports and injury, and for this ....
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....tors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital investments. (v) Xxxx (vi) xxxx (vii) A determination of threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. In making a determination regarding the existence of a threat of material injury, the designated authority shall consider, inter alia, such factors as: (a) A significant rate of increase of dumped imports into India indicating likelihood of substantially increased importation; (b) Sufficient freely disposable, or an imminent, substantial increase in capacity of the exporter indicating the likelihood of substantially increased dumped exports to Indian markets, taking into account the availability of other export markets to absorb any additional exports; (c) Whether imports are entering at prices which will have a significant depressing or suppressing effect on domestic prices,....
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....rs. Even if the subject countries are export oriented, that by itself cannot be a strong likelihood factor unless backed by favourable market conditions and weak domestic industry in India. Although there is a high demand for the subject goods in India, the prices prevailing in the Indian market and the strong domestic industry base may not be conducive for the subject countries to target Indian market in the event of revocation of the duties. (v) Level of current and past dumping margin: The designated has, inter alia, noted that in the present investigation, injury margin is negative in the POI as well as post POI periods, thereby indicating no injury to the domestic industry and there is no likelihood of injury as well in the event of revocation of the duties. 33.7 Thus, though most of the factors which are required to be taken into consideration for the purpose of determination of injury, namely, increase in volume, increase in dumping, increase in margin of dumping and price undercutting are all positive and only price suppression and price depression are absent, the designated authority, instead of relying upon the said factors for the purpose of basing his decision as ....
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....tion the inventories of the domestic industry. Evidently therefore, the designated authority has failed to follow the procedure laid down under clause (vii) of Annexure-II to the rules for the purpose of determination of threat of material injury in the manner prescribed thereunder. 33.9 On behalf of the respondents it has been contended that the factors mentioned for a threat of material injury determination are not mandatory for a likelihood of recurrence of injury analysis. That the designated authority in its wisdom has considered some of the factors mentioned for a threat of material injury analysis and that non-consideration of all the factors does not vitiate the analysis. To test this contention reference may be made to clause (vii) of Annexure II to the rules, which says that in making a determination regarding the existence of material injury, the designated authority shall consider, inter alia, such factors as (a), (b), (c) and (d) enumerated thereunder. In the opinion of this court, in view of the use of the expression inter alia in the said clause, the inquiry may not be limited only to the four factors specified thereunder. However, the provision mandates that the ....
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....undercutting is positive, and while recording the essential facts the designated authority has accordingly, come to the conclusion that price undercutting is positive. However, the designated authority while coming to the conclusion that there is no material injury has taken into consideration incorrect facts, viz. that the price undercutting is negative. Insofar as "injury margin" and "price underselling" are concerned, both are based upon the non-injurious price. The difference between non-injurious price and landed value of imports is referred to as "injury margin" to the domestic industry and "price underselling" is the difference between NIP of the domestic industry and landed value of imports. It may be noted that injury margin is required to be determined when the designated authority comes to the conclusion that there is material injury requiring imposition of anti-dumping duty, whereupon the quantum of anti-dumping duty to be levied is based upon the injury margin. Therefore, determination of injury margin would come into play only in case the designated authority comes to the conclusion that determinative measures are required to be applied. Where the designated authority....
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....d, would not form an essential fact for the purpose of arriving at a decision as to whether or not determinative measures are required to be applied. It is only after coming to the conclusion that there is injury necessitating imposition of or continuance of anti-dumping duty, that the designated authority is required to determine the injury margin, for which purpose it has to determine the non-injurious price as per the principles laid down in Annexure III to the rules for the purpose of fixing the quantum of anti-dumping duty to be imposed. The designated authority has recorded findings in the disclosure statement to the effect that since the injury margin is negative in the POI as well as post POI, domestic industry was not injured during POI and post POI and hence, there is no likelihood of injury to the domestic industry in case of revocation of duty. The designated authority has also recorded that the landed price is more than the NIP and both price undercutting and price underselling are negative during POI and post POI. Thus, the designated authority has based its findings on essential facts based upon the "injury margin" and "price underselling" as well as the fact that pr....
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.... the reasons for such variance and detailed calculations were not disclosed by the DA to the appellant. No good reasons were given for reducing the cost price of electricity supplied by the appellant produced in its captive power plant. This was clearly illegal. 41. The DA claimed confidentiality from the appellant about its finding on the data supplied by the appellant itself. In our opinion, there was nothing confidential in the matter, and hence reasons for not accepting the appellant's version should have been stated in the order of the DA. 43. In our opinion, Rule 7 does not contemplate any right in the DA to claim confidentiality. Rule 7 specifically provides that the right of confidentiality is restricted to the party who has supplied the information, and that party has also to satisfy the DA that the matter is really confidential. Nowhere in the rule has it been provided that the DA has the right to claim confidentiality, particularly regarding information which pertains to the party which has supplied the same. In the present case, the DA failed to provide the detailed costing information to the appellant on the basis of which it computed the NIP, even though the....
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....e parties were told to offer their comments by 20.09.2016, that is, within a period of six days and the final findings were required to be issued on or before 30.09.2016. The petitioners submitted their response dated 11.9.2016 by a letter dated 14.9.2016 and requested for more time. However, such request was not acceded to and the final findings came to be submitted on 23.09.2016. Thus, the designated authority took its own time in submitting the disclosure statement on 14.09.2016, leaving a maximum period of 16 days for rendering its final findings. The short time granted for issuance of final findings is sought to be explained on the ground that in the case of the second review, the period under sub-rule (1) of rule 17 of the rules was expiring on 30.09.2016 and since, both the reviews involved similar facts, it was deemed fit to ensure that final findings in both the cases were rendered simultaneously. The above explanation is not very palatable for the reason that under the proviso to sub-rule (1) of rule 17, it was permissible for the designated authority to seek extension in the second review also, instead of curtailing the time that could be provided to the parties to deal ....
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....ranted to the parties to defend their interests. 36.1 The challenge to the final findings is principally based upon the contention that the designated authority has placed reliance upon material and facts for concluding the issue against the petitioners which did not form part of the disclosure statement and that the petitioners, therefore, did not have any opportunity to deal with the same. Such contention is mainly based upon the fact that the designated authority in paragraph 98 of the final findings, has placed reliance upon the data available from the WTA for the POI. It has been contended on behalf of the petitioners that the designated authority has referred to data obtained from the World Trade Atlas, whereas no reference was made to this essential fact in the disclosure statement, nor has this information been made available to the petitioners in the course of investigation and that the failure to make available to the parties the material on which the decision is based, is in violation of the principles of natural justice and reliance on such data is nothing but an attempt to circumvent the correct and relevant facts in order to support a decision already taken. It is ....
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....pose of determining as to whether or not the definitive measures are required to be applied or not. The designated authority is required to record its conclusions on those facts but not its conclusions based upon those facts. The conclusion as to whether or not the definitive measures are required to be applied is a conclusion based upon the essential facts and hence, could not have found place in the disclosure statement. Besides as to whether or not definitive measures are required to be applied is a conclusion that has to be recorded after receipt of the comments on the disclosure statement. The conclusion recorded by the designated authority in the disclosure statement that levy of anti-dumping duty is no longer justified, amounts to arriving at a decision as to whether or not to apply definitive measures based upon essential facts recorded by it. The very fact that the designated authority without waiting for the comments on the disclosure statement has recorded its conclusions as to whether or not to apply definitive measures, is clearly indicative of the fact that the designated authority has already made up its mind prior to receipt and consideration of the comments of the ....
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....he subsequent stage of the same proceedings also and the same court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage. 14. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993,it was observed as follows: "10. ... Scope of principle of res judicata is not confined to what is contained in Section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. ... 11. ... where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides, the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and the relevant factors to be considered before the principle is held applicable." 15. In Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941, it was observed as follows: "8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the ....
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....ld that for the purposes of petition under Sections 397/398 it was only necessary that members who were already constructively before the court should continue the proceedings. It is a case in which the petitioner who had filed a petition died during the pendency of the petition. While filing the petition he had obtained consent of requisite number of shareholders of the company, among them his wife was also there. The Court further observed that since the wife of the petitioner was already constructively a petitioner in the original proceedings, by virtue of her having given consent in writing, she was entitled to be transposed as petitioner in place of her husband." 38.2 Insofar as the maintainability of the petition in view of an alternative statutory remedy of appeal against the notification issued by the Central Government is concerned, the scope of inquiry before the appellate authority would be the notification issued by the Central Government and the final findings on which the same is based. The appellate authority while considering the validity of the notification under section 18 of the Act, would not go into the validity or otherwise of the disclosure statement issue....
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....be mandatory that was satisfied when the first order was made. Thereafter if any direction is given under Section 132(12) or by a court in writ proceedings, as in this case, we do not think an order made in pursuance of such a direction would be subject to the limitations prescribed under Section 132(5). Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income Tax Officer to pass a fresh order. We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed with- in ninety days. It would make the sub-sections (11) and (12) of Section 132 ridiculous and useless. It cannot be said that what the notified authority could direct under Section 132 could not be done by a court which exercises its powers under Article 226 of the Constitution. To hold otherwise would make the powers of courts under Article 226 wholly ineffective. The court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. If in a particular case a court takes the view that the Income Tax Offi....
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....that the period fixed under Section 132(5) is mandatory. But even if it were the decision that Rule 112-A is also mandatory is clearly erroneous. When Section 132(5) permits an Income Tax Officer to pass an order within ninety days that power cannot be in any way whittled down by a rule made under that section." 39.1 Reference was also made to the decision of the Supreme Court in the case of Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd., (1995) 1 SCC 642, wherein it has been held that the period of time fixed for passing an order applies only to the initial order and not to any subsequent order that may have to be passed under the directions given by a statutory authority or by a court in a writ proceeding. The court held that, to hold otherwise would make the powers of courts under Article 226 wholly ineffective. The court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. 39.2 Keeping in mind the principles propounded in the above decisions, the court having held that the disclosure statements stand vitiated for the detailed reasons set out hereinabove, would be required to set aside the disclosure ....