AI Drafter 
TaxTMI 
TaxTMI 
2018 (1) TMI 228
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....er or Direction, strike/ read down the Rule 25 of the Rules to be ultravires to Section 9A of the Act; b. Issue a writ of Certiorari or Writ in the nature of Certiorari appropriate, or any other appropriate Writ, Order or Direction, quashing the Impugned Findings dated 18.08.2017 issued by Respondent No. 2; c. Issue a Writ of Mandamus, or Writ in the nature of Mandamus, or any other appropriate Writ, Order or Direction restricting the Respondents, from acting upon the Impugned Notification; d. Issue a Writ of Prohibition, or Writ in the nature of Prohibition, or any other appropriate Writ, Order or Direction restricting the Respondents, from acting upon the Impugned Notification" 3. Amendment application CM No.43275/2017 seeks permission to amend the plaint to challenge notification no.52/2017 - Customs (ADD) dated 24.10.2017 thereby imposing anti-dumping duty, falling under the heading 7219 of the First Schedule to the Customs Tariff Act, 1975 for exports from People's Republic of China, Korea, European Union, South Africa, Taiwan, Thailand and United States of America. 4. The petitioner is primarily aggrieved by the note below the table, specifying anti-dumping dut....
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.... Act' for short), which for the sake of convenience is reproduced below: "9C. (1) An appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (hereafter referred to as the Appellate Tribunal). ^1 [(1A) An appeal under sub-section (1) shall be accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the Appellate Tribunal,- (a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application shall be accompanied by a fee of five hundred rupees. (2) Every appeal under this section shall be filed within ninety days of the date of order under appeal: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving ....
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....cable and incapable of being met. The petitioner is a manufacturer of CRS Steel in Finland and exports the CRS Steel including sheets of 1250 mm and above in thickness to India. The petitioner submits that imposition of anti circumvention duty is contrary to law on the following grounds: [1] The order and reasoning by the Designated Authority which has been accepted by the Government, is incoherent and contradictory. Reference is made to some tables in the report of the Designated Authority that anti dumping conversion duty was not justified, as there was no undercutting or negative pricing in CRS Steel exported by the petitioner to India. [2] The conditions stipulated for imposition of anti circumvention duty stipulated in Rule 25 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Custom Goods and for Determination of Injuries) Rule 1995 ('Anti Dumping Rules', for short) were not satisfied. Thus there is lack of jurisdiction. [3] Fourth respondent had moved the anti-circumvention application before the designated authority on 21st September, 2015. Between 21st April, 2015 and 11th December, 2015 anti-dumping duty was not applicable....
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.... has introduced various other preconditions thereby extending the scope of invoking circumvention provisions. Thus, the Rule goes beyond the Act to the extent it has added the preconditions other than "unassembled or dissembled" form. It is humbly submitted that "unassembled or dissembled" would essentially cover within its scope those products which can fall under description of CKD or SKD. In the facts of the present case, the product of the petitioner cannot be said to fall under the said scope and therefore the Rule itself is liable to be struck down or read down for being beyond the section." 12. The submission made is that sub-section (1A) to Section 9A of the Tariff Act permits imposition of anti circumvention duty only when circumvention takes place either by altering the designation or name or composition of articles or by import of an article in an unassembled or dissembled form or changing country or its origin for export. This is not correct. Sub-section (1A) to Section 9A, for the sake of clarity, is quoted below: "(1A) Where the Central Government, on such inquiry as it may consider necessary, is of the opinion that circumvention of anti-dumping duty imposed und....
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....nto India from country of origin or country of export notified for the levy of anti-dumping duty after being subjected to any process involving alteration of the description, name or composition of an article, such alteration shall be considered to circumvent the anti dumping duty in force if the alteration of the description or name or composition of the article subject to anti dumping duty results in the article being altered in form or appearance even in minor forms regardless of the variation of tariff classification, if any. (3) Where an article subject to anti dumping duty is imported into India through exporters or producers or country not subject to anti dumping duty, such exports shall be considered to circumvent the anti dumping duty in force if the exporters or producers notified for the levy of antidumping duty change their trade practice, pattern of trade or channels of sales of the article in order to have their products exported to India through exporters or producers or country not subject to anti dumping duty. Explanation.- For the purposes of this sub-rule, it shall be established that there has been a change in trade practice, pattern of trade or channels o....
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....statutory provisions almost meaningless and non-existent. 16. Way back in 1957, in Union of India versus T.R. Verma, AIR 1957 SC 882, the Supreme Court had observed that where an alternative or an equally efficacious remedy is open to a litigant, the litigant should be required to pursue that remedy and not invoke jurisdiction to issue a prerogative writ. Existence of an alternative remedy does not affect the jurisdiction of the Court to issue a writ, but it would be a good exercise of discretion to refuse to entertain a writ petition unless there are extenuating and special grounds. The reason is that the Writ Jurisdiction is not meant to correct errors like appellate courts. When rights and duties are created by a Statute, which is meant to be a complete code, the parties should first exhaust the remedies for redressal of grievance and correction of errors. 17. Following this dictum, the Writ Courts in the absence of exceptional circumstances have refused to entertain writ petitions and to proceed with judicial review where the invoker has failed to exhaust or take recourse to alternative remedies. Requirement to exhaust the alternative remedies is considered to be fair and....
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.... broadened the concept of jurisdiction to include error committed after initial assumption of jurisdiction. Similarly, the concept of error apparent on the face of the record was broadened to include any such error as would appear to be apparent to the particular Judge or Judges deciding a particular case." 19. As noticed above, the rule of exhaustion of remedy is not an absolute and inflexible rule and, therefore, the Writ Courts practice some degree of flexibility depending upon the facts of each case. A Writ can be entertained where the authority or tribunal lacks subject matter jurisdiction or has assumed jurisdiction in the absence of jurisdictional fact, for these are treated as pre-requisite for assuming jurisdiction at the inception. Such cases can be distinguished from cases where there are errors made in exercise of jurisdiction or sometimes even errors in excess of jurisdiction. These are treated as errors within the jurisdiction. For example, in the case of Whirlpool Corporation (supra), a writ petition was filed challenging the notice issued by the Registrar on the ground that he had no power to issue such notice. The Supreme Court observed that the High Cour....
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....ranted, but without interim stay. The Designated Authority had thereafter submitted their report and thereupon notification No. 52/2017 dated 24th October, 2017 has been issued by the Ministry of Finance. 22. In the aforesaid context of lack of jurisdiction, the petitioner had urged that the initiation of proceedings were bad, as the fourth respondent, namely, M/s Jindal Stainless Steel Limited had moved an application for imposition of anti-circumvention duty on 21st September, 2015, i.e., during the period between 21st April, 2015 and the 11th September, 2015, when anti-dumping duty was not in force. This point or issue has not been specifically raised in the writ petition, but we find that there is also power of suo motu imposition. The writ petition, which is rather detailed, refers to earlier applications moved by the fourth respondent for imposition of anti-dumping duty on CRS steel with the width of above 1250 mm, which was not accepted at the time of issue of notification No.14/2010 dated 20th February, 2010, imposing anti-dumping duty with effect from 22nd April, 2009, mid-term review resulting in notification dated 7th February, 2012, and then the sunset review notific....