TaxTMI 
TaxTMI 
2005 (4) TMI 76
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....ycle Tyre Cord Fabric (CTC). The petitioner is also a member of Automotive Tyre Manufacturer Association (ATMA). The association represents the collective interest of tyre manufacturers. 2. The Association of Synthetic Fibre Industry (ASFI), whose members are the manufacturers of synthetic fibre in India, including NTCF, submitted a written application before the Designated Authority appointed by the Central Government under Rule 3 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter the Anti Dumping Rules/Rules of 1995) on behalf of the domestic manufacturers that the exporters from China are dumping the NTCF in Indian Market and it is causing injury to domestic industry of NTCF and that there is a causal connection between such dumped articles and the injury to domestic industry. 3. In the said petition, it was also alleged that in addition to the material injury already inflicted on the domestic industry, imports from said countries are posing threat of material injury to the domestic industry in future also. 4. On receipt of this petition, the respondent No. 1,....
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....m it being a departure from normal period under investigation usually taken is 12 months, the period overlapped the period covered by previous investigation in respect of which no causal link was found in midterm review dated 20-3-2003. 9. After the initiation of proceedings and after the filing of objections against initiation of investigation by the ATMA and the exporters from China, the Designated Authority was informed by letter dated 7-4-2004 by the petitioners that appeal filed by the domestic industry against the mid term review findings dated 20th March, 2003 has been withdrawn and therefore, present proceedings are not maintainable as the domestic industry failed to establish causal connection even prima facie. 10. Thereafter, by Notification dated 30th June, 2004 the Designated Authority published its preliminary findings under Rule 12 of the Rules of 1995 and recommended the imposition of provisional Anti Dumping Duty on import of NTCF originating and exported from China. On the basis of the preliminary finding notified by the Designated Authority, the provisional Anti Dumping Duty was imposed by the Central Government vide Notification dated 26-7-2004. Before that....
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....iminary findings were notified and aforesaid proceedings have taken place including oral hearing on 1st September, 2004. Said Mr. A. Sengupta, the Designated Authority, was transferred before the investigation was concluded and Mr. Christy L. Fernandez, IAS, Additional Secretary to the Government of India was appointed as new Designated Authority under Rule 3 of the Rules of 1995 somewhere in November, 2004. 16. We may notice here that initiation Notification was issued by Mr. L.V. Saptharishi as Designated Authority on 20-10-2003. 17. Vide letter dated 6-1-2005, the request was made to Mr. Fernandez on behalf of M/s. NNC and NJIE that "hearing in this case was granted by your predecessor who has since relinquished charge without passing any order in this case. We would earnestly urge you to appreciate that the principle of administrative proceedings would require that orders are passed by the authority who had actually heard the submission of various interested parties. In view of the above position, we would request you to kindly grant us a fresh hearing before any finalisation is taken in the matter." 18. The Designated Authority responded letter dated 6-1-2005 by makin....
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....seriously affected in view of the above. Even at this stage we find that normal value calculations have not been disclosed and no reasons have been given for not calculating grade wise normal value when sufficient information was indeed available within the authority. In the absence of such vital information or reasoning our clients would not be in a position to make any meaningful attempt to file comments to the disclosure statement. We would also request the Designated Authority to provide us the rejoinder statement filed by the all the parties to the proceedings. Please note that the same have been provided in other cases. If the same are not provided, we would not be in a position to appreciate the submissions in the proper perspective especially when it appears from the disclosure statement that several new submissions of the domestic industry have been brought on record which were not available in the public file or in the written submissions pursuant to the public hearing. Serious prejudice would be caused to the interest of the cooperating exporters and importers if such prayer is not allowed. Such an opportunity would enable us to effectively participate in the pr....
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....ain this writ petition and that the petition is pre mature and ought not to be entertained at this stage. An objection to delay and latches in raising the grounds of lapses in procedure has also been raised. 29. A rejoinder has been submitted refuting all preliminary objections and asserting that the petition is not pre mature and that it is not an attempt to scuttle the proceedings initiated in respect of said facts but due to faulty procedure and erroneous approach adopted by the Designated Authority has vitiated the proceedings in its roots and if in spite of this, the Designated Authority is allowed to reach final findings and recommend the rate of Anti Dumping Duty to the Central Government, it shall result in irreparable injury which is likely to be caused to the interest of the petitioner and that the petition does not suffer from laches. It was stated in response to objection as to lack of territorial jurisdiction of this Court that the petitioner is an importer as well as a user industry of article under investigation having its user in the State and facilities of using the article in question in manufacture of tyres set up in Kankroli, Rajasthan. The petitioner is a li....
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....ost in the nature of customs duty which is chargeable under Customs Act, 1962 read with Custom and Tariff Act, 1975. Since, the petitioner is having its bonded warehouses at factory site at Kankroli in Rajasthan where the imported goods are brought without payment of duty and the duty leviable under Act of 1962 read with Customs Tariff Act shall become payable when the goods are removed from the bonded warehouse situated at Kankroli under the order issued by the competent authority which is situated at Udaipur. Therefore, the assessment of Customs Duty shall take place by the authority situate in Rajasthan at the time when imported goods are removed from bonded warehouse, where goods have been brought without payment of duty. Obviously, liability to pay Customs Duty in such case will arise only at Kankroli when goods are removed from the bonded warehouse. The liability to pay Anti Dumping Duty under the Customs Tariff Act, 1975 read with Act of 1962 shall arise at Kankroli in Rajasthan when the non-duty paid goods will be removed from bonded warehouse. The proceedings which are subject matter of petition are part of the procedure required to be followed for imposition of Anti Dumpi....
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.... of tax is provided by the Finance Act each year. Evaluating the goods for the purpose of determining the amount of duty and the rate of duty to be levied is essential part of making the charge effective. Section 15 inter alia provides the date for determination of rate of Duty and tariff valuation of imported goods. It envisages that the rate of duty and tariff valuation, if any applicable to any imported goods shall be the rate endorsed in the case of goods entered for home consumption under Section 46 on the date when a bill of entry is presented under that Section. It further says under clause (b) of sub-section (1) that where the goods are removed to the bonded warehouse from the port of import without payment of duty and the goods are stored in the bonded warehouse, the quantification of Duty can take place only at rate of duty and valuation of goods in force on the date when the bill of entry is presented before competent authority before goods are cleared from warehouse under Section 68. 35. Until Section 15(1)(b) was amended vide Finance Act, 2003, the rate of duty and valuation of tariff was to be done as per the date on which goods stored in bonded warehouse without p....
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....tioner shows that he was licensed to maintain a bonded warehouse at Kankroli, to which imported goods by the petitioner were to be removed without payment of duty, and its liability to customs duty accrued against the petitioner on removal of the goods from the said bonded warehouse which was situated at Kankroli in Rajasthan. That being the position, there is a direct nexus between lis and place where liability to duty in question is to arise, which is within the State of Rajasthan for the petitioner. 41. The scheme of Investigation to be held under Custom Tariff Act, 1975 read with Anti Dumping Rules of 1995 reveals that before anti dumping duties levy can be imposed findings are to be reached by the Designated Authority about three essential facts necessary to establish the fact of dumping. Such are the findings about Export price of subject commodity, normal price of the subject commodity and margin of dumping. The essential requirement that is to be investigated and found further is causal link between dumping of subject commodity and injury to domestic industry. Thus export from foreign country into India, import, and injury to domestic industry vis-à-vis dumping ma....
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....able by the importer when such goods are removed from bonded warehouse situated at Kankroli by seeking permission u/s 68 of the Customs Act, 1962. 45. Thus a part of cause of action about levy on collection of Anti Dumping Duty that may be imposed as a result of proceedings under Anti Dumping Rules, 1995 arise in Rajasthan at Kankroli. 46. There is no dispute that on levy of Anti Dumping Duty and other duties of custom if any dispute arises as to assessment and levy thereof in respect of the petitioner, the territorial jurisdiction shall vest in this Court. 47. In this connection, we may notice a very recent decision of the Supreme Court in Kusum Ingots and Alloys v. Union of India and Other [2004 (168) E.L.T. 3 (S.C.) = (2004) 6 SCC 254]. 48. It was a case in which petitioner has challenged the vires of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the Delhi High Court. The petitioner was a company having its registered office at Mumbai. Loan was obtained from Bhopal Branch, State Bank of India. Notice for repayment was issued by the Bank from Bhopal purporting to be in terms of the said Act. 49. The writ....
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....ping Duty at a specified rate by issuing a Notification to that effect u/s 9A of the Act of 1975. The issuance of such Notification is a legislative function and Notification is a legislative instrument issued by Central Government as delegate of Parent Legislature, Parliament. The procedure has been prescribed for determining facts, existence of which is a condition precedent to impose the levy of Anti Dumping Duty by the Central Government. Thus, the procedure of investigation to find about existence of necessary facts is an exercise in aid of legislative function of the State. On the implementation of such levy, the cause of action will arise where as a result of implementation civil or evil consequences fall on the petitioner. 55. In the present case, the civil or evil consequences, on implementation of Anti Dumping Duty, if levied as a result of alleged illegal and invalid proceedings, will fall on the petitioner at Kankroli in State of Rajasthan as discussed above. Hence if the petitioner is to challenge the validity of levy, the High Court of Rajasthan will have territorial jurisdiction to entertain such challenge and decide upon it. 56. On the anvil of the aforesaid p....
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....ions in their application does not ipso facto lead to conclusion that those facts have given rise to cause of action wholly or partly within the territorial jurisdiction, unless those facts are such which have a nexus or relevance with the lis that is involved in the case. In the Kusum Ingots & Alloys case (supra), the Supreme Court specifically dealt with the situation when in pursuance of a legislative act cause of action arises. The conclusion to which we have reached is within the parameter of test laid by the Apex Court for determining the question of territorial jurisdiction as per the decision relied on by the respondents. Objection to Locus Standi of the Petitioner 62. Mr. Mohan Parasaran, learned Additional Solicitor and Mr. Krishna Venugopal, learned counsel for the ASIF and other intervening parties have further submitted that petitioner, a registered Company, does not have locus to maintain this petition. It has been urged that firstly, the petitioner does not have an individual interest in matter hence, the cause cannot be pursued individually. Secondly, petitioner himself has not participated but his interest has been represented before the Designated Authority ....
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....5 makes it abundantly clear that apart from interested parties defined under Rule 2(c), an industrial user individually and a representative consumer organisation where subject article is commodity ordinarily sold at the retail level, as necessary participants in the investigation proceedings under Rules before Central Government can exercise its authority to impose Anti Dumping Duty u/s 9A of the Customs Tariff Act, 1975. Rule 6 delineates the principles of governing investigation. Sub-rule (5) of Rule 6 reads as under : "(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 commodity sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality." 70. Sub-rule (5) mandates Designated Authority to give opportunity to industrial user and representative consumer organisation in cases subject goods are ordinarily sold at retail level to furnish information regarding dumping, injury where applicable, and causality. It makes a distinction between two cla....
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....gs on the alleged invalidity attached to preliminary findings. 76. It is true that had the petition rested on the above two grounds only perhaps the contention of respondent would have carried substance. 77. However, the petition has been triggered by denial of fresh oral hearing by the successor Designated Authority, after the predecessor Designated Authority has granted oral hearing on 1-9-2004, who had demitted the office on transfer in November, 2004. The demand for fresh hearing was made on 6-1-2005 and it was responded by publishing information on the basis of which Designated Authority intends to reach final finding on the matters required to be determined by him. In which, we stated that substance of oral hearing has been noticed in information published. The petition has been filed on 24-1-2005 after serving a notice dated 17-1-2005 demanding certain information, time of 15 days to furnish comments and reiterating demand of fresh oral hearing as per request dated 6-1-2005. 78. Without commenting on merit of the contentions, it can be safely inferred that even if the challenge to initiate investigation under Rule 5 and publication of preliminary finding under Rule ....
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.... petition should be dismissed on that count alone. Reliance in this connection was placed on Chan Singh v. Registrar, Cooperative Societies Punjab and Others - (1976) 3 SCC 361, G. Sanana v. University of Lucknow and Others - (1976) 3 SCC 585, Mrs. Kunda S. Kadam v. Dr. K.K. Sanana and Others - (1980) 2 SCC 355 and Indian Express v. Union of India - 2003 (157) E.L.T. 138, a Division Bench decision of the Delhi High Court, the SLP against which is stated to have been dismissed by the Supreme Court - 2003 (158) E.L.T. A225 (S.C.). Last of the decisions relates to Anti Dumping Duty. Reliance was also placed on judgment of the Gujarat High Court in Appollo Tyres Ltd. v. Union of India, Civil Special Application No. 8747/2004, decided on 20th July, 2004. The decision of the Gujarat High Court has been rendered in relation to the very investigation which is subject matter of the present writ petition. The Gujarat High Court has declined to inquire into the matter at the stage before the final findings are recorded in the matter. 82. On the other hand, the petitioner has urged that the petition cannot be dismissed as pre mature for two reasons. Firstly, because the preliminary findings....
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....provided by one officer and decision will be taken by the other, without affording fresh hearing, which is against all cannons of principles of natural justice. Reliance was placed in Gullapalli Nageshwar Rao v. APSRTC - AIR 1959 SC 308. 83. It was urged that since the petitioner challenges the very initiation of the investigation and also, the preliminary finding reached by the Designated Authority being in violation of the procedure prescribed by the Statute and subsequent proceedings were also taken in breach of natural justice at every step and finally, the Designated Authority's denial to afford opportunity of fresh oral hearing in spite of a demand having been made and his insistence on proceeding with the investigating without affording oral hearing which was given by his predecessor-in-office and to act on the oral hearing given by the predecessor in office vitiates the whole enquiry and cannot be proceeded with. Until the investigating is not complete, the claim to an appropriate writ directing the Designated Authority not to continue with already vitiated proceedings cannot be said to be pre mature. 84. The learned counsel for the respondents rejoined that, the ....
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....12 of Customs Act provides that the duties of custom shall be levied at the rate prescribed under the Customs Tariff Act, 1975. Thus, Customs Act, 1962 and Custom Tariff Act, 1975 are to be read together to find the answer. 88. The Customs Tariff Act, 1975 as originally enacted did not provide for number of levies including Anti Dumping Duty which now finds place in the Act of 1975. 89. At the time of its enactment, there was no provision for levy of Anti Dumping Duty and a few other type of imposts. The Anti Dumping Duty was introduced in the Act of 1975 vide amending Act No. 52 of 1982. The Scheme for levy and imposition of Anti Dumping Duty is encompassed under Sections 9A to 9C. The imposition of safeguard duty under Section 8B was introduced vide Finance Act, 1997 w.e.f. 14-5-1997, with an object to safeguard interest of domestic industry against injury that domestic industry may suffer on account of increased quantities in imports. The special provisions relating to impost on territorial product, special duty on imports from Peoples Republic of China was levied by inserting Section 8C w.e.f. 11-5-2002 vide Finance Act, 2002. All these new duties have come to be incorpor....
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....ct in mind, by Act No. 52 of 1982, Section 9 of the Tariff Act, 1975 was amended to provide for countervailing duty on bounty fed and subsidized articles whether or not such articles are chargeable with duty under the Act, and to provide for the imposition thereunder of Provisional Duty and of the refund of excess amount were the final duty as determined under it is found to be less than the prevailing duty. 93. Another amendment which was brought into the Act of 1975 was to insert Section 9A authorising Anti Dumping Duty on dumped products and for the imposition of Provisional Duty on dumped products and refund of excess amount in cases where the final duty as determined under the Section is less than the Provisional Duty. Section 9B was also introduced to provide for exemption from levy of countervailing duties under Section 9 or of the Anti Dumping Duties under Section 9A in the case of articles imported from the country or territory notified under the Section. The exemptions were not to be made in respect of import of any article if the import of such article causes or threatens the material injury to any industry established in India or materially retard the establishment o....
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....been collected in excess of the anti-dumping duty so reduced. Sub-Section (4) says that Anti Dumping Duty chargeable under this Section shall be in addition to any other duty imposed under the Act or any other law for the time being in force. The period during which Anti Dumping Duty imposed under sub-section (5) shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. However, the Central Government is authorised if in a review it has opined that it likely to lead to continuation or recurrence of dumping and injury to the domestic industry, it may from time to time extend the period of such imposition for a further period of 5 years. The period during which the review came to be initiated, before the expiry of period of 5 years, to the date of its conclusion, the anti dumping shall continue to remain in force for not exceeding one year. The margin of dumping duty as referred to in sub-section (b) of Section 3 is to be considered and determined by the Central Government from time to time after such enquiry as it may consider necessary. Sub-Section (6) of Section 9A provides that the Central Government after such enquiry, as m....
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....to be levied is left to be exercised by the delegate of the legislature. Since Anti Dumping Duty is authorised to be levied only on existence of certain facts, it is also envisaged that the delegate should exercise such power subject to determination of certain essential facts, in a comprehensive manner in accordance with the procedure laid down in the Rules framed by the Central Government. 98. It is while giving effect to this scheme of Section 9A of the provisions relating to levying of anti dumping duties which as per the object stated in its enactment also is to give effect to the GATT agreement and other International Treaties and agreements to which India is signatory member. Under the Constitution of India it is also an obligation of the State to discharge the obligation arising under international treaty. The determination of essential facts in accordance with the procedure laid down under the Rules is in aid of the legislative function of the Parliament and its delegate and is not purely of the administrative or judicial or quasi judicial character but is legislative or quasi legislative in character. 99. Viewed in that light, the investigation envisaged under the R....
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....ing duty; (c) to submit its findings, provisional or otherwise to Central Government as to normal value, export price and the margin of dumping in relation to the article under investigation, and (d) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries: (e) to review the need for continuance of anti-dumping duty once it is imposed." 103. The aforesaid duties assigned to the Designated Authority does not need further elaboration as they lay down the foundation of exercise of the power by the Central Government bearing in mind further considerations as per the guiding principles clearly laid in the Act and Rules before Anti Dumping Duty can be imposed by it. Finding of the aforesaid facts relating to the dumping margin dependent on the difference between normal price and the export price of the article in the exporting countries and the injury to the industry because of such import with the causal connection between the import and the injury alone can enable the Central Government to levy Anti Dumping ....
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....ms of Rule 5 decides to initiate investigation, it has to investigate into the existence degree and effect of any alleged dumping of any article and is required to issue a public notice inviting comments of all parties interest and such public notice is to contain information relating to country or countries in the article involved; the date of initiating the investigation; and the basis on which the dumping is alleged. The summary of factors on which the allegation of injury is based, the address to which representatives of interested parties should be directed, and the time limit allowed to interested parties for making their view known. 111. Sub-rule (2) requires copy of public notice to be sent by the Designated Authority to known exporters of article alleged to have been dumped, the Government of exporting countries concerned and other interested parties. 112. Sub-rule (3) requires that the Designated Authority furnish a copy of application made under Rule 5 to known exporters, concerned trade associations whose community of exports is large, the Government of exporting countries and also to supply such copy on demand to other interested party. 113. Significantly, sub....
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.... make a disclosure of information before giving its final findings to all the interested parties of the essential facts under consideration which formed the basis for its decision. Though the Rule does not say so, as to practice followed by Designated Authority, the comments are invited by him from interested parties before recording final findings. 117. Along with its determination about dumping the Designated Authority has also to recommend the rate at which if Anti Dumping Duty is levied will remove the injury to domestic industries. 118. On submission of final finding, the Central Government under Rule 18 can within three months thereof impose Anti Dumping Duty not exceeding the margin of dumping. Rule 19 directs that Anti Dumping Duty is to be levied on non-discriminatory basis. 119. Rule 20 declares in unequivocal terms that Anti Dumping Duty levied under Rule 13 or Rule 18 shall take effect from the date of publication in official gazette only. It does not take effect earlier than that whether Provisional Duty or final duty. 120. The rest of the Rules relate to periodical review and ancillary matters which are not relevant for the present purposes. 121. Before....
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.... rules being framed by the Chief Justice or his delegate if no approval has been received from the Governor, whether a writ of mandamus could be issued directing, Governor to give his approval to the Rules made by the Chief Justice. The Court answered the said question in the negative considering that the function to be exercised in relation to framing of rule was legislative in character. 127. The principle was again considered by the Supreme Court in Supreme Court Employees' Welfare Association v. Union of India & Anr. - (1989) 4 SCC 187, wherein the Court said that : "There can be no doubt that no Court can direct the Legislature to enact a particular law. Similarly when an executive authority exercises a legislative power by way of subordinate legislation pursuant to delegated authority of the legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority." 128. In State of Jammu & Kashmir v. A.R. Zakki & Ors. - (1992) (Suppl.) 1 SCC 548, the Court reiterated that, "a writ of mandamus cannot be issued to the Legislature to enact a particular legislation, same is true as regard t....
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.... a writ may be issued to the Assessing Authority not to proceed in furtherance of such invalid notice as it will amount to assumption of jurisdiction which does not lawfully vest in the officer. It was laid down by the Supreme Court that under Article 226, the High Court has the power to issue an order prohibiting a statutory, administrative authority from acting without jurisdiction or from proceeding in furtherance of wrongful assumption of jurisdiction. 132. From the aforesaid principles, noticed in broad terms without detailed niceties makes out one distinction clear that where the relief claimed is against an act which may result in bringing into existence a legislative instrument, no cause of action arises for which a petition in the nature of mandamus, prohibition or certiorari can be maintained until the legislative instrument comes into existence and in its implementation affects any person resulting in civil or evil consequences that may affect him adversely. Until then no cause of action arises and consequently no writ would lie to abstain the concerned legislative authority from completing the process by which the legislation can be brought into existence. 133. On....
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....ling their products at less than its normal price at home market to the buyers in India. It is not a tax as is ordinarily understood for the purpose of raising public revenue in generality or in the nature of a compensatory tax for services rendered by the State like road tax, but it certainly falls in the category of tax to regulate import of certain articles by subjecting it to an additional duty on finding existence of certain facts in order to protect the domestic industry from injury caused on account of unfair trade pursuits by the exporters of the goods from foreign country or territory to India. The imposition is not complete merely by enacting Section 9A authorising imposition of Anti Dumping Duty on certain conditions found to exist. Charge to tax really comes into existence on Notification issued by the Central Government as authorised under Section 9A of the Act of 1975. Thus, not only the provision in the principal legislation enacted by the Parliament is legislative but the Notification which ultimately brings the charge into effect, too is legislative in character and is in the nature of delegated legislation. 140. In this connection, we may notice the principle s....
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....and adjudication deals with what the law was, rule making deals with what the law will be." 144. The same principle was stated by Chinnappa Reddy J. in UOI v. Cynamide laying down the distinction between the legislative act and administrative adjudication as under : "Adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action." 145. The above distinction was approved by the Supreme Court recently in State of Tamil Nadu v. K. Subanayagan - AIR 1998 SC 344. 146. Coupled with this, if we consider the ratio enunciated by the Supreme Court in Kusum Ingots case - 2004 (168) E.L.T. 3 (S.C.) = (2004) 6 SCC 254 as to when a cause of action arises in respect of legislative action, it comes to the fore that mere passing of a legislation does not give rise to a cause of action but a cause of action arises only when the provisions of the Act or some of them are implemented which gives rise to civil or evil consequences to the petitioner. 147. Applying this test to the present case, it can be said that so far as the relief relates to prohibiting or preventing the Central Government from exercising....
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....le 5 and 6 are reproduced herein below :- "5. Initiation of Investigation.- (1) Except as provided in sub-rule (4), the Designated Authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry. (2) An application under sub-rule (1) shall be in the form as may be specified by the Designated Authority and the application shall be supported by evidence of - (a) dumping (b) injury, where applicable, and (c) where applicable, a causal link between such dumped imports and alleged injury. (3) The Designated Authority shall not initiate an investigation(3) pursuant to an application made under sub-rule (1) unless - (a) it determines, on the basis of an examination of the degree of(a) support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry; Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twe....
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....e alleged to have been dumped. The Governments of the exporting countries concerned and other interested parties. (3) The Designated Authority shall also provide a copy of the application referred to in sub-rule (1) of Rules 5 to - (i) the known exporters or to the concerned trade association where the number of exporters is large; and (ii) the governments of the exporting countries; Provided that the Designated Authority shall also make available a copy of the application to any other interested party who makes a request therefor in writing. (4) The Designated Authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the Designated Authority may allow on sufficient cause being shown. Explanation : For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent b....
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.... in specified form supported by evidence, relied on by them and secondly to place before the Designated Authority material that the application is supported by that portion of domestic producers who account for 25% or for more than 25% of the total production of the like article by the domestic industry. Thereafter, it is for the Designated Authority to objectively apply its mind to existence of necessary production capacity of the complainant organisation of the applicants, the material that has been placed before it for prima facie coming to a satisfaction about the existence of sufficient evidence to support the necessary facts required to be determined for the purpose of imposing Anti Dumping Duty, but having not done so, the Designated Authority could not have assumed jurisdiction to initiate the investigation. Hence, the proceedings by the Designated Authority suffers from inherent lack of jurisdiction. 154. Rule 6 lays down the procedure which is participatory in nature so much so that opportunity is required to be given to all concerned parties by the Designated Authority before recording its finding. Such opportunity includes oral submissions and furnishing of informati....
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.... under suspension shall not be taken into account while calculating the period of said one year. (b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry. 157. According to the petitioner the elaborate procedure to be followed by the Designated Authority for reaching objective findings in respect of facts required for laying foundation for the Central Government to exercise its power of imposing Anti Dumping Duty, by issuing a Notification in that regard, makes the investigation before issue of Notification by the Designated Authority appointed under Rule 3 of the Rules of 1995 for the purposes of finding necessary facts, skeleton of which has been provided under Section 9A quasi judicial in nature. Even if it is not considered quasi judicial in nature, the assumption of jurisdiction by the Designated Authority to initiate the investigation which may ultimately result in evil consequences for the importers, gives rise to a cause of action to importer to challenge the proceedings at the very inception and may invite interference by the Court on principle set out in Calcutta Discount Company Limited case (sup....
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....mpugned and effect emanating therefrom on the interest sought to be protected, which includes consideration of appropriate time of considering the challenge. 161. Fundamental principle which have been applied to different fact situations making out distinction between judicial and quasi judicial acts on the one hand and administrative action on the other while inquiring into challenge to any State action while testing it on the scale of judicial scrutiny may be viewed in brief. 162. May, C.J. in the Irish v. Get - 1878 LR (2) IR 571 observed : "In this connection terms judicial does not necessarily to mean act of a judge or legal tribunal stating for the determination of matters of law. For the purpose of this question judicial acts seem to be act generally by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights of other and it be a body empowered by law to enquire into facts, make estimates to himself a rate of a district, it would some to mean that the acts of such a body involving such consequence would be judicial acts." 163. The principle was to some extent deviated by Lord Atkin in the King v. The E....
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....rder, for the purpose of inviting objections and wherever they are not withdrawn, of having of public enquiry to be held by someone other than the respondent to whom they present reports was for the further information of the respondent final consideration of the soundness of the scheme. Lord Thanterdan opined : "I am of the opinion that no judicial duty is laid on the respondents in discharge of these statutory duties and only question is whether he has complied with statutory directions to combine an apposite person to hold the public enquiry and to consider that person's report." 167. Apart from decisions referred to above, the decision of the appellate Court in Franklin v. Minister of Town and Country Planning was considered by the Apex Court in Province of Bombay v. K.S. Advani & Ors. - (1950) SCR 621. 168. The Full Court of the Supreme Court in separate judgments by five of the members constituting the Bench came to unanimous conclusion that writ of certiorari lies only when a body of persons having legal authority to determine questions affecting the rights of subjects and such determination is founded on duty to act judicially, it acts in excess of their ....
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....lative function, and then to decide act or not to act upon it. 171. The subject squarely fall within the precincts of ratio laid in Franklin's case (supra) - (1948) A.C. 87 and this distinction between adjudication and non adjudicatory function has been approved by the Apex Court in Kusaldas S. Advani (supra) - (1950) SCR 621. This distinction does not appear to have so far been obliterated or clouded. 172. If in the light of the aforesaid distinction, we examine the whole gamut of the scheme of imposition of Anti Dumping Duty, the following aspects become clear :- 173. Under Section 9A of the Act of 1975 the levy of Anti Dumping Duty is authorised by Parliament, laying down the conditions on the existence of which Anti Dumping Duty can be imposed. The imposition is a tax. 174. The authority has been vested in the Central Government to find whether such conditions exist, and on finding that such conditions exist the power to impose Anti Dumping Duty on such imports at rate not exceeding margin of dumping by issuing a Notification also vest in the Central Government. 175. The guiding factor on which the Central Government may decide to issue Notification in the of....
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....s an obstruction to free trade. 182. Be that as it may, it is not the province of the present enquiry to go into the details of the comparison and to what extent the provisions of Rules of 1995 are in line with the GATT, 1994. But it is relevant to notice that article (1) of the GATT, 1994 bares the principle that the provisions made in the succeeding articles are to govern application of Article VI of GATT, 1994 in so far as action is taken under the anti dumping duties. 183. We shall presently notice that merely finding by the Designated Authority the facts leading to conclusion that a case of dumping and specific injury in domestic industry is made out by itself, does not obligate the Central Government to levy anti dumping duties as a matter of course. But the decision of the Central Government to impose Anti Dumping Duty after it receives the findings and the recommended rate which would remove the injury to the domestic industry is still governed by number of other considerations on which the Central Government alone has to decide. 184. Rules of 1995 under Rule 3 envisages appointment of a Designated Authority by the Central Government. Such Designated Authority has ....
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....(2) of Section 9A read with the rules and ensure that no such Provisional Duty can be imposed before the expiry of 60 days from the date of public notice issued by the Designated Authority regarding its decision to investigate which itself is founded on due application of his mind to matters detailed in Rule 5. It also ensures that the imposition of Provisional Duty may not continue indefinitely to render the investigation an empty formality by ordaining that the Provisional Duty can remain in force only for a period of 6 months in the first instance but which may upon request of the exporters representing the percentage of the trade involved be extended by the Central Government maximum up to 9 months. Beyond 9 months from the date it is first imposed, Provisional Duty cannot be continued. 187. Effect of final findings recorded under Rule 17 is in the like manner no different. The recording of finding by the Designated Authority does not result in automatic levy and imposition of Anti Dumping Duty under Section 9A nor it becomes imperative for the Central Government to impose such Duty as recommended by the Designated Authority. The matter again rests with the Central Governmen....
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....e may be. 191. These are all matters to be considered by the Central Government before it decides to impose Anti Dumping Duty on the basis of finding recorded by the Designated Authority and recommendations made by it. The period within which such consideration has to take place is 3 months from the publication of final findings under Rule 18. 192. The prescription of a period of three months under Rule 18 of the Anti Dumping Duty Rules of 1995 or for that matter Rule 20 of Countervailing Duty Rules of 1995 is an indication that on receipt of finding from the Designated Authority, Government is not to act in a mechanical manner to issue Notification imposing the duty, but has to consider all relevant factors prescribed for its guidance before it takes its decision on the findings and recommendations made by the Designated Authority. Section 9B of the principal Act and consequent provisions made in Rules of 1995 make the imposition of Provisional Duty subject to Notification under Rule 18, if any, and rates notified therein. If the Central Government does not levy any Anti Dumping Duty or decides to levy the Duty at rate lower than the rate of duty notified under Rule 13, the ....
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....ound by the Designated Authority in the manner prescribed under Rules and preliminary finding and final findings are published under Rule 12 and Rule 17 respectively. 199. It can be said, therefore, safely that merely determination of preliminary finding and its publication or determination of the final findings and its publication cannot result in affecting rights of anybody. In fact, the entire scheme reveals that the duty of the Designated Authority is not to determine any lis or dispute between the exporters or importers or domestic industry but it has duty to find certain facts by eliciting information from all sources on which depends its conclusion whether exportation and importation of the subject article results in dumping and whether as a result of such dumping any injury is caused to the domestic industry and if so, the extent of injury which is caused to the domestic industry. 200. The fact about the margin of dumping as explained and defined in Explanation to section 9A(1) is also to enable the Central Government while exercising its legislative function of imposing Anti Dumping Duty to make up its mind as to the extent of duty which is to be imposed, if it decid....
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....l, until the Central Government in exercise of its legislative functions decides to issue Notification under Rule 13 or rule 18 as the case may be. 205. Therefore, our conclusion in this aspect of the matter is that the enquiry by the Designated Authority, notwithstanding the elaborate procedure it has to follow, is not in the nature of a judicial or quasi judicial enquiry because it is not aimed at determining the rights of any of the parties who participate in the enquiry. It does not decide a lis between all or any of them. It remains an auxiliary limb of the State in its legislative manifestation to gather necessary information, consider the various interests involved and draw inference therefrom to provide a foundation for exercise of legislative function of imposing a tax in an objective manner. It merely place its conclusion before the Central Government for taking its own decision. The whole exercise by itself does not result in any adverse effect on the interest of any of the parties appearing before it. It does not enter into any adversarial litigation. Therefore, unless the legislative instrument comes into existence on issue of Notification by the Central Government,....
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....from different sources which include submissions of the interested parties engaged in the exportation, importation or manufactures and user of the article under investigation and by considering all the informations coming from all the sources, the findings are recorded to be transmitted to Central Government for its consideration in deciding whether to impose Anti Dumping Duty, and if so to what extent, in order to remove the injury to domestic industry or to eliminate the threat of retarding of establishing of domestic industry. Such findings are not reached by the Designated Authority in exercise of any legislative power vesting in it for the purpose of deciding any litigious contentions between the various interests or to adjudicate or decide upon rights of any party to lis. Therefore, until the legislative instrument comes into existence and the civil consequences thereof reaches the petitioner through its implementation, no cause of action can arise for which the petition can be maintained. 210. If we view the facts of the present case, then it is discernible that so far as the imposition of provisional Anti Dumping Duty by Notification dated 4th July, 2004 is concerned, th....
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....rit of the issue relating to initiation of proceedings and the determination of preliminary findings at this stage, lest it may affect the final findings too keeping in view that the last date for reaching final finding is shortly at hand, to be precise on 28-4-2005. Interfering with the ongoing proceedings at such a close quarter to its final leg, would irretrievably allow the current proceedings to lapse. But on the other hand, even if, the ultimate final findings supports imposition of Anti Dumping Duty and Central Government decides to impose such duty, the petitioner will not be remedy-less. He still will have a right to challenge the final findings and consequently Notification imposing Anti Dumping Duty founded thereon by way of appeal to CESTAT or approaching High Courts/Supreme Court, as the case may be. On no duty being ultimately levied or lesser duty is imposed, then too, the petitioner shall not suffer, as he will be entitled to claim refund of said sum as envisaged under Section 9BB. Therefore, we decline to go into the merits of challenge to the initiation of the proceedings and challenge to provisional Anti Dumping Duty. 215. So far as the relief claimed by the p....
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....proceedings within the period envisaged under the Rules. 218. The petitioner having not done so, cannot be permitted to upset the whole cart at this late stage by falling back on the defects which could have been raised at the initial stage. 219. We make it clear that by any observations made in the writ petition we have not expressed any opinion on the merit of the contention of the petitioner or the non-petitioner relating to any defect in procedure or about the non-existence of the condition precedent for initiating the proceedings or the essentials of hearing envisaged under the Anti Dumping Rules. The petitioner is free to agitate all these grounds if the occasion so arises. 220. We also need not go into the question at this juncture on the issue of nature of the oral hearing and the effect of alleged oral hearing offered by the predecessor in office of the current Designated Authority and denial of the opportunity of making fresh oral submission, on the validity of the proceedings. 221. To summarise we hold that this court has territorial jurisdiction to entertain this petition and we decline to sustain the preliminary objection to entertain this petition on the g....