TaxTMI 
TaxTMI 
2018 (4) TMI 980
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....titioner is as follows: (i)According the petitioner, the present Writ Petition has been filed challenging the correctness and legality of the notice dated 05.01.2018 issued by the 2nd respondent providing the preliminary findings in relation to the investigation for imposition of a Safeguard Duty on import of Solar Cells whether or not assembled in Modules or panels and thereby, recommending the provisional Safeguard Duty at the rate of 70% advalorem. On the basis of that the 2nd respondent has recorded its preliminary findings without permitting the petitioner to make submissions, which were specifically called for from the petitioner and other similarly interested parties (i.e.) importers and exports of Solar Cells and Modules into India. (ii)Further according to the petitioner, inasmuch as the preliminary finding notice has been issued is in clear breach of the fundamental principles of natural justice, which mandate a hearing or at the very least a consideration of the petitioner's representations, the petitioner is challenging the same by way of this Writ Petition. Further according to the petitioner, such denial of natural justice has been committed by the 2nd respo....
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....fore, according to the respondents, the petitioner is not an interested party and has no locus standi in the matter. (iii)The petitioner filed a letter dated 12.01.2018, well past the deadline of 15 days i.e. by 10.01.2018, requesting for registration as an interested party, without explaining the delay or requesting for extension of time. Subsequently, the petitioner, on its own volition, filed detailed questionnaire response and submissions on 19.01.2018, without registering itself as an interested party within the prescribed time limit. The present Writ Petition was filed on 17.01.2018 and even in the belated letter dated 12.01.2018, the petitioner never requested for a personal hearing. The petitioner, for the first time, prayed for personal hearing in its submission dated 19.01.2018 (i.e.) after filing of the present Writ Petition. There is no requirement in law to grant a personal hearing at the stage of making a recommendation as per preliminary findings. (iv)Section 8B of the Customs Tariff Act, 1975 and Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997, have been framed to enforce the WTO Agreement on Safeguards. Article 11.1(a) of the Agre....
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....Section 8B(2A). In these circumstances, the respondents prayed for dismissal of the Writ Petition. 4.Heard Mr.Sujit Ghosh, learned counsel appearing for Mr.Arun Karthik Mohan learned counsel on record for the petitioner, Mr.G.Rajagopalan, learned Additional Solicitor General appearing for Mr.A.P.Srinivas, learned Senior Standing Counsel appearing for the 1st respondent and Mr.B.Rabu Manohar, learned Senior Panel Counsel appearing for the 2nd respondent. 5.The learned counsel appearing for the petitioner submitted that the impugned proceedings are in violation of the principles of natural justice, inasmuch as the 2nd respondent issued the Notice of Initiation of a Safeguard investigation dated 19.12.2017 and granted 30 days time from the date of the said Notice to all the interested parties to make their views known on the subject issue. Further, the learned counsel submitted that prior to the expiry of the period of 30 days, the impugned preliminary findings have been rendered, which is contrary to the provisions of Rule 6 of the said Rules and therefore, the petitioner who is an interested party is entitled to be heard in the matter and without hearing the petitioner and oth....
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....ent danger of being so invaded. From this point of view we would have been justified in dismissing all petitions except perhaps that of Mr.Madhu Limaye. We may now proceed to the consideration of the rival contentions." (ii)(1978) 1 Supreme Court Cases 248 [Mrs.Maneka Gandhi Vs. Union of India and another] wherein the Constitutional Bench of the Hon'ble Supreme Court held as follows: "... 8.The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to ....
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....he same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. ... The net effect of these and other decisions was that the duty to act judicially need not be super-added, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. ... 12.This Court, speaking through Hegde, J., in A.K.Kraipak's case, quoted with approval the above passage from the judgment of Lord Parker, C.J., and proceeded to add: "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it ... Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questio....
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....adur Pandey and others] wherein the Hon'ble Supreme Court of India held as follows: "... 5.There can be no question that nations must march with the international community and the municipal law must respect rules of international law even as nations respect international opinion. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of nations or no, municipal law must prevail in case of conflict. National courts cannot say yes if Parliament has said no to a principle of international law. N....
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....urt considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. (vi)(1998) 8 Supreme Court Cases 1 [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others] wherein the Hon'ble Supreme Court held as follows: "... 15.Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act ....
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....in our opinion, subsequent circular cannot impose such a condition as the same would tantamount to rewriting Notification No.17 or in other words legislating by circular, which is not permissible in law. As can be seen from the relevant provisions with special reference to Section 25 read with Section 159 of the Act, a notification under Section 25 of the Act requires publication in the official gazette as well as requires tabling before both the Houses of Parliament and if that exercise has been carried out without any condition being imposed in the Notification No.17 it would not be permissible to permit revenue to impose such condition by way of circular. If the revenue is allowed to undertake such an exercise, the requirement of publication in official gazette and laying a notification before such House of the Parliament would become nugatory and such a course of action is not envisaged by the Act. It would give licence to the executive to bypass/override the legislature and cannot be countenanced. 6.We entirely agree with the view taken by the High Court that the department could not, by issuing a circular subsequent to the notification, add a new condition to the not....
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....eived one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country. (5) The designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. (6) The designated authority may allow an interested party or its representative to present information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. (7) The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. (8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authori....
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....unction is to arrive at a just decision. In A.K. Kraipak Vs. Union of India [(1969) 2 SCC 262] this Court had observed that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, regard must be had to: (i)the nature of the power conferred; (ii)the person or persons on whom it is conferred; (iii)the framework of the law conferring that power; (iv)the consequences ensuing from the exercise of that power and (v)the manner in which that power is expected to be exercised. 66.The first leading case decided by this Court on the point was Khushaldas S. Advani [AIR 1950 SC 222]. In that case, while dealing with the question whether the governmental function of requisitioning property under Section 3 of the Bombay Land Requisition Ordinance, 1947 was an administrative or quasi-judicial function, Das J. (as His Lordship then was), while concurring with the majority, in his separate judgment, upon reference to a long line of cases expressing divergent views, deduced the following princ....
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....t character. ... ... 13.To make a decision or an act judicial, the following criteria must be satisfied: (1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule; (2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact." 68.Having examined the scheme of the Tariff Act read with the 1995 Rules on the touchstone of the aforenoted principles, particularly the first principle enunciated in Khushaldas S. Advani [AIR 1950 SC 222], we have no hesitation in coming to the conclusion that this is an obvious case where the DA exercises quasi-judicial functions and is bound to act judicially. A ....
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....) 3 SCC 337]). It is evident that the determination of injury is premised on an objective examination of the material submitted by the parties. Moreover, under Rule 6(7) of the 1995 Rules, the DA is required to make available the evidence presented to it by one party to other interested parties, participating in the investigation. 73.It is also pertinent to note that Rule 12 of the 1995 Rules which deals with the preliminary findings, explicitly provides that such findings shall "contain sufficiently detailed information for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected." 74.A similar stipulation is found in relation to the final findings recorded by the DA under Rule 17(2) of the 1995 Rules. Above all,Section 9-Cof the Tariff Act provides for an appeal to the Tribunal against the order of determination or review thereof regarding the existence, degree and effect of dumping in relation to imports of any article, which order, obviously has to be based on the determination and findings of the DA. 75.The cumulative effect of all these factors....
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....e maintainability of the writ petition in the presence of an alternative remedy, has held that alternative remedy is a rule of discretion and not a matter of compulsion. The operative portion of the said decision is as follows: "33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. 34. We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was f....
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....appeal in time. (3) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling the order appealed against. (4) The provisions of sub-section (1), (2), (5) and (6) or section 129C of the Customs Act, 1962 shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member." 24.It is in accordance with the powers conferred under Section 9A(6) of the Act, which confers a rule making power to the Central Government in order to ascertain and determine the manner in which the article liable for any anti-dumping duty is to be identified or the manner in which the export price and the normal value of, and the margin of dumping in relation to such article....
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....ty, after preliminary investigation, has to record a preliminary finding regarding the export price, normal value and the margin of dumping and also record further finding regarding the injury to the domestic industry with detailed information for the preliminary determination on dumping and injury and such preliminary finding is to be issued by way of a public notice by the Designated Authority, as it is seen in Rule 12 of the Rules, which is as follows: "Rule 12. Preliminary findings.- (1) The designated authority shall proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, record a preliminary finding regarding export price, normal value and margin of dumping, and in respect of imports from specified countries, it shall also record a further finding regarding injury to the domestic industry and such finding shall contain sufficiently detailed information for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. It will also contain:- (i) the names of the suppliers, or when this is impracticable, the supplying countries invo....
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....per cent expressed as the percentage of export price and margins established in the circumstances detailed in sub-rule (8) of rule 6. The Central Government shall apply individual duties to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation as referred to in the second proviso to sub-rule (3) of rule 17. (3) Notwithstanding anything contained in sub-rule (1), where a domestic industry has been interpreted according to the proviso to sub-clause (b) of rule 2, a duty shall be levied only after the exporters have been given opportunity to cease exporting at dumped prices to the area concerned or otherwise give an undertaking pursuant to rule 15 and such undertaking has not been promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question. (4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the investigation was initiated, the Central Government shall, within forty-five days of the publication of final findings by the designated authori....
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....gainst 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. Section 9A(2) of the Act states that the Central Government may, pending the determination in accordance with the provisions of this Section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined. Thus, the provisional anti-dumping duty is levied pending determination and appeal lies only on determination. Moreover, Rule 17 of the Rules deals with final finding. It says that the Designated Authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding (a) as to (i) the export price, normal value an....
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.... (ii) a description of the article which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination. 2. The designated authority shall issue a public notice recording its preliminary findings." After receipt of the preliminary findings, the Central Government may, on the basis of the preliminary finding of the Designated Authority, levy a provisional duty not exceeding the margin of dumping under Rule 13. .... 18.Mr. N.M. Lodha, learned Senior Central Government Standing Counsel has raised number of preliminary objections with respect to maintainability of the writ petition. The objection is as to non-maintainability of the joint writ petition in disregard to Rule 375(4) of the Rajasthan High Court Rules. Another objection pertains to latches i.e. delay in filing the writ petition. The third objection pertains to conduct. It is submitted that th....
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.... The Indian Express Newspaper v. Union of India. In the said case, the preliminary finding on anti dumping investigation concerning imports of newspaper prints was challenged. The maintainability of the writ petition was objected on the similar grounds. The Court held thus We are not impressed by the several submission so forcefully advanced by the learned counsel for the petitioners. (In our opinion, the petitions are pre-mature. The petitioners are at liberty to raise their contentions whatever they may be before the Designated Authority who is still seized of the investigation and is admittedly holding a hearing today. Inspite of the preliminary finding having been submitted to the Central Govt, imposition of duty, whether provisional or otherwise, would not follow as a matter of course or routine.) The Central Government may or may not impose duty. If the Central Government may decide on favour of imposing duty, whether provisional or otherwise, the petitioners would have the remedy available to them under the law. It cannot be lost signt of that the imposition of provisional duty is guided by the paramount consideration of protecting the domestic newsprint industry an....
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....hat a statutory authority cannot enlarge the scope on jurisdictional fact. It is contended that when the jurisdiction of the authority depends upon a preliminary finding of fact, the High Court can independently determine upon its independent judgment as to whether the finding is correct or not. In support of the submission, he has relied upon number of decisions of the Apex Court. 23.In Bengal Immunity Company v. State of Bihar, reported in AIR 1955 SC 661, the writ petition was filed under Article 226 of the Constitution challenging the notice issued under Section 13 of the Bihar Sales Tax Act by the Superintendent, Commercial Taxes calling upon the Company to apply for registration and to submit returns showing its turnover for the specified period. The reason for issuing the notice as recited in the notice was that on information which had come to his possession the Superintendent was satisfied that the Company was liable to pay tax but had nevertheless wilfully failed to apply for registration under the Act. The writ petition was dismissed by the High Court on the ground of it being premature and it was observed that the petitioner should have responded to the notice ....
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....ng of writ of certiorari to determine, upon its independent judgment, whether or not that finding of fact is correct. 26.In Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu reported in 1991 Supp (2) SCC 228, the Court observed that the jurisdiction of a tribunal created under statute may depend upon fulfilment of some condition precedent or upon existence of some particular fact. The Court further observed that a tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction, which it would not otherwise have had. 27.Dealing with the question of alternate remedy, the Apex Court in Raja Anand's case (supra) held that the existence of alternate remedy is always not a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction or continuing such action. It is not necessary to trace all the judgments on the point involved. Suffice it to refer the decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks reported in JT 1998 (7) SC 243, wherein the Court on review of almost all the cases on the point, reiterated three well establishe....
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....7(b) is discretionary but the first requirement for its existence is the honest formation of the opinion that the investigation is necessary. The Court further observed that the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. Since the existence of circumstancesis a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion of certain definiteness. 30.Thus, in Barium Chemical's case (supra), the Court arrived at the conclusion that the existence of circumstances suggesting that the Company's business was being conducted as laid down in sub-clause (i) or the persons mentioned in sub-clause (ii) were g....
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....to the investigation, the limited interference is called for to satisfy if the preliminary finding has been recorded after following the statutory provision. It is of-course true that it is for the Central Government to levy or not to levy a provisional duty on the basis of the preliminary finding but as laid down by the Apex Court in Raja Anand Brahma Shah's case (supra) that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact, the High Court is entitled in a proceeding of writ of certiorari to determine upon its independent judgment whether or not that finding of fact is correct. Once an anti-dumping duty is levied, though it may be provisional, it may adversely affect the trade or business of the parties like the petitioner. Though, there is provision for refund of anti-dumping duty but that in itself is not sufficient as the injury which may be caused to a trade or business, cannot be compensated by refund of the amount recovered as duty on anti-dumping. 32.As regards the alternate remedy, it is well established that the High Court would not normally exercise its jurisdiction except in a case where therehas been a violat....
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....ction for maintaining the Writ Petition. Further, the learned Additional Solicitor General submitted that there cannot be any investigation within investigation and if the said process is adopted, the entire Local Industry will be affected and the provisions of Section 8B(2) will be defeated. The reference to the subjective satisfaction to impose provisional duty is a statutory function and the fact that the Government may have to act reasonably and fairly does not mean in every case principles of natural justice must be followed. 6.1.In support of his contentions, the learned Additional Advocate General relied upon the following judgments: (i)(1978) 1 Supreme Court Cases 248 [Mrs.Maneka Gandhi Vs. Union of India and another] wherein the Constitutional Bench of the Hon'ble Supreme Court held as follows: 183.I may at this stage refer to the stand taken by the learned Attorney-General on this question. According to him, on a true construction, the rule audi alteram partem is not excluded in ordinary cases and that the correct position is laid down by the Bombay High Court in the case of Minoo Maneckshaw v. Union of India [(1974) 76 Bom LR 788]. The view taken by Tu....
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....on in regard to what is only a recommendation. This, in our view, should also have governed the writ petition filed by the petitioners. The special leave petition is dismissed. (iv)2009 (111) DRJ 237 (DB) [Saint-Gobain Glass India Ltd. & Anr. Vs. Union of India & Ors.] wherein the Division Bench of the Delhi High Court held as follows: ... 21.6.In our opinion, the scope for interference in matters which have huge economic impact is very narrow. As a matter of fact, actions instituted in courts such as the instant writ petitions have portents of derailing decisions-which could have a cascading impact and inflict resultant damage not only on the domestic industry in issue but even on industries which are vertically integrated to the said domestic industry, as also on their employees and industrial labour, which perhaps at times Courts cannot monetarily quantify. Therefore, the Court in our view, should be slow in entertaining such petitions. However, we make it clear that we are not to be understood as saying that in no case can writ petitions be entertained. Writ Petitions in such cases ought to be entertained in our view, when there is either a c....
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.... sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations. 7.On a careful consideration of the materials available on record, the submissions made by the learned counsel on either side and also the judgments relied upon by the learned counsel on either side, the petitioner is registered in Mumbai and it imports through Maharashtra Ports. Though the petitioner has not made any imports in Tamil Nadu and according to them, they are likely to import in the month of September 2018. The respondents contended that since the petitioner has no office at Chennai, the Writ Petition is not maintainable for want of jurisdiction. However, the learned counsel for the petitioner submitted that the petitioner is having an office at SREYAS VIRAT No.14, First Floor, Third Cross Road, Raja Annamalaipuram, Chennai 600 028 and therefore, it cannot be contended that this Court has no jurisdiction to entertain the Writ Petition. The petitioner has also establ....
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....r that the enquiry under Section 8B(1) is not an advisory litigation, but the Government is only taking the views of the interested parties before imposing duty. The respondents have also contended that duty is nothing but taxand there is no need for any compliance of natural justice before imposing tax, which is a legislative function. 12.On a reading of Section 8B(1) and 8B(2), it is clear that the provisions does not contemplate taking of the views from any party and it is based on the subjective satisfaction of the Central Government and the preliminary findings given by the 2nd respondent will only constitute a material, based on which the provisional duty is imposed. The respondents themselves have stated that the duty of the 2nd respondent, with regard to the provisional Safeguard Duty as well as the definite Safeguard Duty, is only recommendatory and is not binding on the Central Government. 13.In the judgment reported in (2011) 2 Supreme Court Cases 258 [Automotive Tyre Manufacturers Association Vs. Designated Authority and others], the case arose after the final determination of Anti-Dumping Duty and the Central Government imposed Anti-Dumping Duty based on the reco....