AI Drafter 
TaxTMI 
TaxTMI 
2018 (3) TMI 878
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of the Designated Authority for imposition of anti-dumping duty on Graphite Electrode ("the product"). 2. The first respondent (the Designated Authority "DA") had, by Public Notice/Notification dated 20.05.2013 initiated an anti-dumping investigation on the import of the product from the People's Republic of China. The Petitioner filed its comments dated 05.11.2014 to the disclosure statement questioning the imposition of anti-dumping duty as illegal. The DA heard and recommended the imposition of duty; aggrieved by the final finding of DA and the impugned Customs Notification dated 13.02.2015 issued by the Union Ministry of Finance ("MoF"), the Petitioner appealed to the CESTAT. The CESTAT dismissed the appeal of the Petitioner by summarily concurring with the findings of the DA. The Petitioner thereafter appealed under section 130E of the Customs Act, 1962 (hereafter, also referred to as the "Customs Act") read with section 9A(8) of the Customs Tariff Act, 1975 (hereafter, also referred to as the "CTA") to the Supreme Court. The Supreme Court by its judgment dated 17.04.2017, examined section 130 of the Customs Act, in light of reference jurisdiction and proceeded to hold as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Act, and in light of Navin Chemicals Mfg. and Trading Co. Ltd. v. Collector of Customs (1993) 4 SCC 320 and Collector of Customs, Bombay v Swastic Woollen (P) Ltd. and Ors. AIR 1988 SC 2176 upheld the findings recorded by the Appellate Tribunal and refused admission to the Petitioner. The Petitioner thereafter moved an application seeking clarification of the judgment dated 17.04.2017, regarding whether the Petitioner is at liberty to move either before the High Court under Article 226/227 of the Constitution or before the Supreme Court under Article 136 of the Constitution; that was dismissed by the Supreme Court by its order dated 23.10.2017, and the Petitioner has thereafter, preferred this writ petition. 4. The relevant sections/rules are as follows: Section 9A of the Customs Tariff Act, 1995 "Section 9A. Anti-dumping duty on dumped articles.- (1) Where any article is exported by an exporter or produced from any country or territory (hereinafter in this 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 Ga....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f development of the country concerned and the product in question, and due account shall be taken of any reliable information made available at the time of selection. Accounts shall be taken within time limits, where appropriate, of the investigation made in any similar matter in respect of any other market economy third country. The parties to the investigation shall be informed without any unreasonable delay the aforesaid selection of the market economy third country and shall be given a reasonable period of time to offer their comments." 5. The Supreme Court, in its judgment dated 17.04.2017 observed that no challenge to the validity of any provision of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 ("Anti Dumping Rules"), which sets out the procedure for determination of the margin of dumping, was laid before the Appellate Tribunal, and the CESTAT, after due consideration, concluded that the report of the Designated Authority neither suffered from excessive imposition of confidentiality, nor from the non-consideration of any of the grounds urged on behalf of the Petitioner. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Rules. Yet, in the previous round of litigation, it did not urge about the alleged ultra vires of the said rule; it could well have urged it, at least as a contention. Res judicata and constructive res judicata are well recognized principles that the courts in India follow, to screen out multifarious litigation by the same parties on the same issue. 9. In State of Maharashtra v. National Construction Co., (1996) 1 SCC 735, the Supreme Court explained the rationale and working of Order 2, Rule 2 as follows: "Both the principle of res judicata and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause. In the case of Mohd. Khalil Khan v. Mahbub Ali Mian the Privy Council laid down the tests for determining whether Order 2 Rule 2 of the Code would apply in a particular situation. The first of these is, "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit". If the answer is in the affirmative, the rule will not apply. This decision has been subsequently affirmed by two decisions of this Court in Kewal Singh v. Lajwanti (SCC at p. 295 : AIR....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... c) Violation of any provision of the Constitution of India. d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act. e) Repugnancy to the laws of the land, that is, any enactment. f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules). The court considering the validity of a sub-ordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity." 12. In the present case, as observed above, the Su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the demand from particular exporters in China had increased by 177 per cent during the same period. The Designated Authority further found that during the period of investigation the production of graphite electrodes by the domestic industry had decreased whereas the import of the same from China had increased substantially and, therefore, the domestic industries are suffering material injury due to dumping of graphite electrodes from exporters within China. It is on the basis of the aforesaid findings that the Designated Authority had recommended that anti-dumping duty be imposed which found manifestation in the Gazette Notification dated 13.2.2015. 24. The above narration clearly disclose that the findings recorded by the learned appellate tribunal on the basis of which the appeal of the present appellant has been dismissed are findings of fact arrived at on due consideration of all relevant materials on record. If that is so, on the ratio of the decision of this Court in the case of Swastic Woollen (supra) we will have no occasion to have a re-look into the matter in the exercise of our appellate jurisdiction under Section 130E(b) of the Act. 25. The appeal, consequently, ....