TaxTMI 
TaxTMI 
2017 (11) TMI 1495
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....7926 & 17937 of 2017, are identical by which the petitioners seek for issuance of writ of certiorari to quash the notification issued by the first respondent dated 02.02.2017, initiating Anti-dumping investigation concerning imports of Non-dyed Polyester Staple Fiber (hereinafter referred as PSF ) from China PR, Indonesia, Malaysia and Thailand. 3.In W.P.No.17927 of 2017, the petitioner association seeks for issuance of writ of mandamus, to issue a direction upon the first respondent /the Designated Authority to proceed to determine its jurisdiction to initiate proceedings under Rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on dumped articles and for determination of injury) Rules 1995, as sought for by them in their letters dated 21.04.2017, 22.04.2017, and 25.04.2017. 4.The learned Senior Counsel appearing for the petitioners, the learned Additional Solicitor General appearing for the first respondent as well as the learned counsels appearing for the private respondents submit that W.P.No.17926 of 2017, may be taken up for disposal first and if the same is disposed of, it may not be necessary to consider the prayer sought for i....
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.... expressing their interest in the impugned proceedings and an application to the said effect was filed on 21.04.2017. It was submitted that there was no reason to initiate the proceedings and there was misconstruction of the norms of domestic industry. This was followed by another objection dated 22.04.2017, raising lack of jurisdiction to initiate investigation and requested that the issue of jurisdiction should be decided upfront before proceeding further. An application was submitted to the said effect on 25.04.2017 followed by a reminder dated 16.05.2017. It is stated that on 04.06.2017, the petitioner/association along with their counsel met the first respondent at Delhi and submitted that the first respondent was wrong in initiating the proceeding and the issue of jurisdiction has to be decided before any other matter is proceeded with. Since there was no response as decided by the respondent, the petitioners have filed these writ petitions seeking for a direction to decide the question of jurisdiction and by way of abundant caution, questioned the impugned initiation notification. 6.Heard Mr.C.Natarajan, learned Senior Counsel, appearing on behalf of Southern India Mills ....
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....y be construed as referring the rest of the producers. Provided that in exceptional circumstances referred to in sub-rule (3) of Rule 11, the domestic industry in relation to the article in question shall be deemed to comprise two or more competitive markets and the producers within each of such market a separate industry, if - (i) the producers within such a market sell all or almost all of their production of the article in question in that market; and (ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory; 2 Explanation. - For the purposes of this clause,- (i) producers shall be deemed to be related to exporters or importers only if,- (a) one of them directly or indirectly controls the other; or (b) both of them are directly or indirectly controlled by a third person; or (c) together they directly or indirectly control a third person subject to the condition that are grounds for believing or suspecting that the effect of the relationship is such as to cause the producers to behave differently from non-related producers. ....
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....deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. (4) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo moto if it is satisfied from the information received from the Commissioner of Customs appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause (b) of sub-rule (3). (5) The designated authority shall notify the government of the exporting country before proceeding to initiate an investigation. 6. Principles governing investigations.- (1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, c....
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....se dumping of the goods into India as part of manipulative exercise or otherwise. Assuming that the relationship between the Malaysian producer and the fifth respondent had causative effect on the behaviour of the fifth respondent, nothing has been stated or found as to why the said relationship had any causative effect on other business of other exporters from other countries such as China, Korea or Thailand as proceeded against. Thus, it is submitted that the restrictions containing in Rule 5 of the Anti-Dumping Rules is intended to preempt and ward off possibility of the law being abused by indigenous manufacturer, in order to hike their price to create scarcity and adversely affecting competitiveness of prices of raw materials to industrial user. 11.The above appears to be what has been lingering in the minds of the petitioner/association that they may be put to prejudice if the jurisdictional issue, which was raised by them, is not taken up for consideration. 12.The learned Additional Solicitor General on the other hand would submit that the petitioners themselves have given an application before the Designated Authority requesting that they may be heard in the matter an....
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....titioners/association are interested parties. 17.Mr.C.Natarajan, learned Senior Counsel would submit that the language of the rule, especially Rule 5(3) of the Customs Tariff Rules is so worded that it is in the negative, that the Designated Authority shall not initiate an investigation pursuant to an application under sub-rule (1) of Rule 5(1) of the Customs Tariff Rules under the contingencies contemplated in Clauses a and b therein. 18.Rule 5 read with Rule 6(1) of the Customs Tariff Rules would show that the Designated Authority shall after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice should contain information provided under such rules. The first respondent having already decided such issue and the impugned notification has been issued under Rule 6(1) of the Custom Tariff Rules, a direction should be issued to the first respondent to decide the issue of its jurisdiction as a preliminary issue. 19.In this regard, reference was made to the decisions in the case of K.Sagar, Managing Director, Kiran Chit Fund vs. A.Bal Reddy ....
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....gs under Rule 12 of the Customs Tariff Rules, as there is no other provision or power under which the first respondent is authorized to issue any order prior thereto. This is interpreted by the petitioner to mean that already the first respondent has come to a conclusion. This interpretation is not tenable. As pointed out earlier, there is a duty enjoined upon the first respondent to determine the export price, normal value and margin of dumping. Consideration should be relevant to the injury determination and to decide as to whether any of such producers are related to the exporters or the importers. Thus, the objections raised by the petitioners are required to be considered by the first respondent while deciding the matter in furtherance to Rule 6 of the Customs Tariff Rules. 22.In Vodafone International Holdings BV (supra), the issue was as to whether the jurisdictional issue may be determined by the authority concerned as a preliminary issue. Having regard to the facts and circumstances of the case, the Court pointed out that the petitioners are entitled to question the decision of the authority on preliminary issue before the High Court in the event, the same is against it....