Calcutta High Court
Debraj Dey vs Union Of India (Uoi) on 7 January, 2003
Equivalent citations: (2004)3CALLT349(HC), 2003(90)ECC731, 2003(156)ELT951(CAL)
Author: Amitava Lala
Bench: Amitava Lala
ORDER Amitava Lala, J.
1. There are altogether two writ petitions involved in this issue. The first writ petition is moved challenging the preliminary finding made by the Designated Authority under Ministry of Commerce and Industry (Department of Commerce), Directorate General of Anti-dumping and Allied Duties while the second writ petition is moved challenging the final finding by such authority during the pendency of the first writ petition. Therefore, the cause of action which was available before the writ petition from the preliminary finding now merged with the final finding. Hence the Court has placed both the matters for an analogous hearing.
Petitioner before this Court is an importer of lead acid batteries from Bangladesh. On the basis of certain complaints, obviously from the domestic industrialists, a proceeding of anti-dumping and investigation concerning import of lead acid batteries originated or exported from Japan, Korea, China and Bangladeah was initiated. The Designated Authority, amongst others, held as follows: -
"G. Deminimus Volume of import
15. It has been represented by the exporters from Bangladesh that exports made from Bangladesh to India are during the period of investigation. As the number of batteries is not a good indicator of the volume of imports, there being batteries of various sizes and type it is only in terms of value that the de minimis criteria can be applied. As per the evidence available before the Authority the imports from Bangladesh account for less than 3 per cent of the value/volume of import of the subject goods to India. Hence for the purpose of preliminary finding, the Authority determined that imports from Bangladesh, are deminimis pending further investigation. "
2. The conclusions of such authority in the preliminary finding as also as follows :
"O Conclusions
30. The Authority has, after considering the foregoing, come the conclusion that:
(i) Lead Acid Batteries exported to India from China, Korea and Japan are below its normal value;
(ii) the Indian industry has suffered material injury and further being threatened with material injury;
(iii) the injury has been caused by the dumped imports from China, Korea and Japan;
(iv) as per evidence available before the Authority at present volume of imports of subject goods from Bangladesh is de minimis;"
3. The petitioner became aggrieved by such preliminary finding. The question is when the import from Bangladesh was declared de-minimis how the proceeding can be kept pending for further investigation? According to the writ petitioner, once a Designated Authority declared that the import is de-minimis in nature. Rule 14 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 comes into play. The proceedings has to be terminated immediately with such declaration. There is no scope open for the Designated Authority to keep the investigation pending even after such declaration.
4. However in the course of hearing of the first writ petition final finding was made by the Designated Authority even in respect of the import articles from Bangladesh. The observation of the Designated Authority in coming to such conclusion is as follows : -
"20. In the Preliminary Findings on the basis of information complied by DGCI & S, it was found that the imports from Bangladesh accounted for less than 3 per cent of value/volume of import of the subject goods to India and therefore, for the purpose of preliminary findings, the imports from Bangladesh were determined as de-minimis pending further investigation. It was also stated that number of batteries is not a good indicator of the volume of imports, there being batteries of various sizes and types, it is only in terms of value that the de-minimis criteria can be applied."
5. It appears to this court that the Designated Authority has relied very much upon the information received from M/s. Bangladesh Accumulator and Battery Manufacturer Association (BABMA), Dhaka, Bangladesh and also upon the exporters from Bangladesh who had not responded earlier to the questionaire within the prescribed time limit, failed to provide valid information and refused to supply necessary information as requested by the Authority. However, ultimately such Designated Authority held that lead acid batteries exported to India from China, Korea, Japan and Bangladesh are below the normal value during the peribd of investigation. The Indian Industry has suffered from material injury and has further been threatened with material injury. The injury has been caused by the imports of dumped goods from China, Korea, Japan and Bangladesh. Therefore, the appropriate authority proposed to recommend the amount of anti-dumping duty applicable thereon which has been fixed at a rate between the amount mentioned in Column-III of the Table given under the finding and landed value of import per kg. of the lead acid batteries for the exporters/manufacturers from the countries including Bangladesh. Hence the petitioner also filed the writ petition challenging the final finding. However, it is to be recorded hereunder that both the findings were notified in the appropriate Gazette in accordance with law on 21st March, 2001 and 7th December, 2001.
6. Both the notifications were issued from New Delhi having impact all over India and/or places wherever affected persons are carrying on business. In the present case it appears to this Court that the petitioner is carrying on business at and from Calcutta. Almost the entire goods were dumped in West Bengal. All records having nexus and connection with the subject matter of issue are lying in the office of the Director General of Commerce Intelligence and Statistics, Ministry of Commerce and Industries, Government of India at No. 1, Council House Street, Calcutta-700001. The domestic industrialists i.e. Exide Industries Limited, Calcutta had lodged the complaint within the jurisdiction. Hence the substantial part of the cause of action arose within the jurisdiction. Therefore, the question of maintainability of the writ petition within the jurisdiction cannot be ignored. It is by now well settled that the best course of determination of jurisdiction is to ascertain whether the cause of action has any nexus and connection with the office or place of business of the aggrieved party situates within the jurisdiction or not apart from the question of effectiveness of the notification within the jurisdiction. This is totally distinct or different from having office or place of business within the jurisdiction alone. On the other hand Situs or venue of an authority cannot command jurisdiction alone. Therefore, balancing factors, as above, are taken into account for determination of jurisdiction.
7. Mr. Jayanta Kumar Mitra, learned Senior Counsel, appearing on behalf of the added respondent i.e. the domestic industrialists took this preliminary point faintly after making submissions on all other points.
8. According to me, jurisdiction has to be determined first irrespective of the fact that it has taken faintly or mechanically otherwise it will affect the merit of the case and make the order nullity. Therefore, I want to come across the judgments cited by him on that score.
9. I have gone through the ratio of the judgment (Union of India and Ors. v. Adani Exports Ltd. and Anr.) and I find ratio of such judgment is similarly placed with the observation of this Court. I am not unmindful in considering the Ratio of the judgment (Oil and Natural Gas Commission v. Utpal Kumar Basu) and I find from the bundle of facts that part of the cause of action arose within the jurisdiction. So far as the ratio of 2000 (2) C.L.J. 367 (Clastar Steel Limited v. Union of India and Ors.) is concerned i.e. basically stays on the principle of suit for land which is not a case herein. In 2000 (1) C.L.J. 605 (UCO Bank v. Poddar & Sharof) I find that only the registered office of the concerned respondent situated within the jurisdiction but the entire proceeding took place outside, then the Court held that this Court had no jurisdiction. I have no dispute with such proposition but again the same is not the case herein.
10. Mr. Mitra has given much more emphasis on the question of alternative remedy rather than the question of territorial jurisdiction. According to him, even under the preliminary finding whether the import made by the petitioner declared de-minimis wrongly or rightly, can also be taken into account by the forum for appeal or review. There is no occasion for invocation of the writ jurisdiction ignoring such forum for appeal or review. The complicated question of facts cannot be ascertained in the manner as the petitioner proposed. Customs Tariff Act, 1975 and Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on the Dumped Articles and for Determination of Injury) Rules, 1995, if read together, it will be understood that the same is a complete code by itself. Therefore, there is no necessity of invocation of writ jurisdiction challenging the notification under preliminary and final finding. I do not think that such argument on the part of Mr. Mitra is an ignorable argument. But before taking such defence in the writ proceeding arising out of final finding the Court allowed the petitioner to argue on the question that when preliminary finding is found de-minimis investigation can be kept open for future or not. However, upon going through the defence particularly when preliminary finding merged with the final finding I find such question so deep-rooted into the facts that the alternative remedy before the forum of appeal or review will have to be declared much more, efficacious than the writ proceeding for the purpose of due consideration. It is to be remembered that the invocation of writ jurisdiction is no bar even having any alternative remedy. But the restriction is self-imposed. If the Writ Court has ultimately found that the alternative remedy is much more efficacious in coming to the conclusion the writ court will obviously send the matter back to such forum for the purpose of redressal of grievance on all points. Therefore, the test is required to be made on the basis of the analysis.
11. So far as the question of alternative remedy is concerned, Mr. Mitra cited various judgments. Firstly, he cited (Titagarh Paper Mills Company Limited and Anr. v. State of Orissa and Anr. with other matter). On the factual assessment of the case a three Judges Bench of the Supreme Court held that an assessee can get adequate redressal against the wrongful acts complained in the appeal and if dissatisfied can make a further appeal to the Tribunal and even thereafter seek for opinion of the High Court. A complete machinery is provided under the law which should be upheld, There is no question of making a writ petition challenging the same. This is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Secondly, he cited a judgment (Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Limited and Ors.) where also a three Judges' Bench of the Supreme Court held that Article 226 is not meant to short circuit or circumvent statutory procedure. It is only where statutory remedies are entirely ill-suited to meet the demands of the extraordinary situation, as for instance, where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and prevention of public injury and the vindication of public justice requires that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving revenue where statutory remedies are available are not such matters. The Supreme Court took a judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice needs to be strongly discouraged. Thirdly, he cited a judgment reported in 2001 (131) E.L.T. 3 (S.C.) [Commr. of Customs, Visakhapatnam v. jaya Satya Marine Exports (P) Ltd.)] where also a three Judges Bench of the Supreme Court accepted the argument of the authorities on the point of relegating the matters to the forum for alternative remedy. Fourthly he cited a Madras High Court judgment reported in 2001(132) E.L.T. 561 (Mad.) (MYM Exporters v. Union of India) to give much emphasis on this issue. Fifthly, he cited a judgment reported in 2001 (6) JT 408 (S.C.) (Punjab National Bank v. O.C. Krishnan and Ors.) where also Supreme Court held that even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising the jurisdiction under the said Constitutional provisions.
12. Next submission of Mr. Mitra is that de-minimis finding is a preliminary finding, which has not been challenged anywhere. On this issue he relied upon a judgment reported in 2000 (120) E.L.T. 11 (S.C.) (Designated Authority v. Raider Topsee A/S.). It appears that the Designated Authority preferred an appeal before the Supreme Court against the order of the Tribunal. It crystallizes various factual aspects for the purpose of coming to a conclusion in respect of "normal value" of the dumped goods. The Supreme Court held, upon going through Section 9A of the Customs Tariff Act and Rule 6 made for the purpose, that the "normal value" will have to be determined with reference to comparable price. The word "comparable price" in the context can only be with reference to the price of similar articles sold under similar circumstances irrespective of the manufacturer. It has also held that the statute has given much wider power to the investigating authority under such Act and Rules for the purpose of coming to an appropriate conclusion. Rule 6(8) specifically empowers authority to record its finding on the basis of the facts available to it in cases where an interested party refused access to or otherwise does not provide the necessary information to it. That apart, the use of the words "sale of the like articles" and "comparable representative price of the like articles" in Section 9A(1)(c) also indicates that the statute intended that while determining the "normal value" the authority has the discretion to rely on such materials as is available before it reflects the comparable value of the articles concerned, meaning thereby that the authority is not bound to look into the material which is produced by the interested party. In that case the authority observed that party withheld necessary information which was bound to be disclosed under the statute. Such party did not cooperated with the investigation and caused impediments in determination of the "normal value". In Such circumstances, the authority is justified in proceeding to determine the normal value specially catalyst on the basis of the "best judgment assessment" as contemplated under Rule 6(8) of the Rules.
13. The tenor of Mr. Mitra's argument in this respect is not to submit to the jurisdiction of the writ Court in respect of the factual aspect of the matter but to establish the practical difficulty of the Writ Court to come to a conclusion in such aspects of the matter. He stated that it is a matter of complicated question of facts which has to be tested by the appropriate forum on the basis of the guidelines given by the Supreme Court. Invocation of the writ jurisdiction is a sheer wastage of time. By this time the matter would have been decided by the Appellate Forum under the statute itself as well as the forum of Customs, Excise and Gold (Control) Tribunal. He cited three judgments specifically on this point which are reported in 2001 (127) E.L.T. 674 (Guj.) (Pradash Kumar Jain v. Union of India), and 2002 (141) E.L.T. 312 (Cal.) (Shew Kumar Agarwal v. Union of India). The moot point in such judgments is that when there is a complicated question of facts that is to be tested by an appropriate forum under the statute. Writ Court should not interfere with the same. In fact, an appeal has already been preferred before the appellate forum.
14. Against this background I have given a serious thought in respect of the arguments made by Mr. Samaraditya Pal, learned Senior Counsel, appearing in support of the writ petitioner. The whole effort at the Court was that neither of the points should be escaped from the notice of the Court the ground of having alternative forum. According to the learned Counsel whenever the Designated Authority declared the volume of the import from Bangladesh deminimis, matter ends. There is no scope of keeping the matter pending for further investigation. Such act on behalf of the Designated Authority is a jurisdictional error which can be challenged by way of making writ petition. He contended that as per Clauses (d) and (e) of the Rule 14, the Designated Authority shall, by issuing public notice, terminate the investigation immediately, if it determines that the volume of the dumped imports, actual or potential, from a particular country accounts for less than 3% of the import of the like product, unless, the countries which individually account for less than 3% of the imports of the like products, collectively account for more than 7% of the import of the like product or it determines that the injury, where applicable, is negligible. It is neither stated to be preliminary nor provisional finding. The statute is very specific in using the word "shall". Once, determination becomes de-minimis as per the Clauses of Rule 14, the determination must have to be declared as final and immediate effect will be given. The Rule 14 which deals with termination of investigation is different from Rules 12 and 13 respectively which are dealing with findings for levy of provisional duty.
15. Secondly, Rule 7 deals with confidential information. The Designated Authority can be satisfied on the basis of such information, No such information shall be disclosed to any other party without specific authorisation of the party providing the information. But Rule 16 speeks for disclosure of information. There under the Designated Authority shall, before coming to its final finding inform all interested parties the essential facts under consideration which form basis for his decision. Therefore, there is a basic difference between Rule 7 and Rule 16. Hence, the petitioner is entitled to know the information formed the basis of the final finding, particularly in a situation when already declared de-minimis articles in the preliminary finding reopened at the final finding. Therefore, non-supply of information to the petitioner before passing such final order is violation of principles of natural justice.
16. Thirdly, the dumping margin is fixed on percentage. The percentage of what that has not been described by any of the respondents. If this Court goes on the basis of Section 9A of the Act it will be seen that the margin of dumped articles means difference between its export price and normal value. Hence, unless and until the basis of such percentage is known the margin of dumping in between export price and normal value as per Section 9A of the Act will also remain unknown.
17. According to Mr. Pal, there is no answer of the respondents in respect of the aforesaid three points. That apart, he contended that the alternative remedy is no bar in respect of such cases, particularly when the respondents submitted to the jurisdiction by filing applications for addition of parties and/or vacating the interim orders and having been allowed to exchange the affidavits. He also said that the notification has not been laid down as per Section 9A(7) of the Act. On this issue he relied upon a three Judges' Bench judgment of the Supreme Court (Union of India v. National Hydroelectric Power Corpn. Ltd. with other matters). He contended that Section 9A of the Act is a charging provision for levying duty on the import of articles into the country. The export price means the actual price at which the article is exported from the exporting country or if such price is not available or reliable then it is to be construed that price determined as per Rule made under Section 9A(6). There is a clear admission that volume of import is de-minimis. The value was based on the figures of the Bangladesh exports. The final finding violates Rule 17(1)(A)(i) 'as it does not disclose the export price, normal value and margin of dumping. Mr. Pal has given a great emphasis on the words "volume" and "value". According to him, volume is the important factor. Both volume and value are alien to the concept of law. He also said that even lead contents of the articled goods cannot be the factor. The very word "dumping" is related to "volume" but not with the "value" or "lead contents". In this respect Mr. Mitra contended that value is the common denomination which is based on volume, value and lead contents. Like Mr. Mitra, Mr. Pal also relied upon the judgment of the Designated Authority v. Haldor Topsee A/S . The exporters append before this Court and submitted that value of the export in India is much more than the price of batteries manufactured in India. Learned Counsel appearing, for the Union of India mostly made his submission only on the point of maintainability of the writ petition.
18. According to me, broadly the three aspects of the matter are really germane for the purpose of due consideration. Firstly, when the Designated Authority already declared volume of import from Bangladesh by the importer is de-minimis further proceeding cannot exists. Secondly, Designated Authority should proceed on the basis of the volume but not on the basis of value and volume, thirdly, no information has been disclosed informing basis of the decision.
19. I cannot say for a moment that one cannot be dissatisfied with the determination of the Designated Authority. But the question is why those points could not be raised before the Appellate or Reviewing Authority? The dispute as regards the value and volume cannot be answered by the writ court because it relates to the factual aspect of the matter. Disclosure of information by the Designated Authority cannot also be pertinent for the purpose of intervention of the writ court since it is a mixed question of law and facts. Therefore, the remaining question is whether the imported articles from Bangladesh can be determined by the Designated Authority as de-minimis pending further investigation or not.
20. According to me, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 is made in exercise of the powers conferred by Sub-section 6 of Section 9A and Sub-section (2) of Section 9B of the Customs Tariff Act, 1975 and in suppression of the earlier Rules of the year, 1985. Therefore, the Rules have to be read in the light of the Act under which those have been made. Section 9A of the Customs Tariff Act, 1975 gives an impression about anti-dumping duty on dumped articles. Both the parties have relied upon a judgment of the Supreme Court i.e. Designated Authority v. Haldor Topsee A/S . It was a reference case arose out an order of the CEGAT. The Supreme Court had laid down certain principles of anti-dumping in the said judgment. Section 9A deals with the value. Sub-section (2) of Section 9A says that the Central Government may, pending the determination in accordance with the provisions of this section and the Rules made there-under 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 if such anti-dumping exceeds the margin. The import of Sub-section (2) is in the nature of provisional assessment keeping the final assessment pending. According to me when imposition under a preliminary finding subject to final determination can be made non-imposition till final determination can also be made. Rule of vice versa is applicable on that score. Imposition includes non-imposition. Therefore, the words "de-minimis pending further investigation" will lead no illegality or material irregularity. Even if the words "pending final investigation" are absent and "de-minimis finding" has been made and notified I do not think the Designated Authority is powerless in taking any measure in respect of the same at the time of final finding on the basis of any informations available to him. There is a provision of statutory review under Rule 23 of the said Rules. As per sub-rule the designated authority shall, from time to time, review the need for the continued imposition of the anti-dumping duty and shall, if it is satisfied on the basis of the information received by it that there is no justification for the continued imposition of such duty recommend to the Central Government for its withdrawal. Any review initiated under Sub-rule (1) shall be concluded within a period not exceeding twelve months from the dale of initiation of such view. The provisions of the Rules, 6, 7, 8, 9, 10, 11,16, 17, 18, 19 and 20 shall be mutatis mutandis applicable in the case of review. Therefore two things can be ascertained from such provision. There is no bar in reviewing the imposition of duty time to time. The other is when the preliminary finding i.e. de-minimis subject to final determination is merged with the final finding the same can be reviewed as per its applicability to Rule 17 as and when it is called upon, on the other-hand if the de-minimis finding said to be final as per Rule 14 on the basis of the arguments of the petitioner, the designated authority is empowered to review. Therefore the authority has jurisdiction to determine the duty finally at the preliminary stage or can review. On top of it there is also provision of appeal or review regarding the existence degree and effect of any of dumping in relation to import of any article which shall lie with the Customs, Excise and Gold Control Appellate Tribunal constituted under Section 129 of the Customs Act. The Appellate Tribunal may, after giving the parties the opportunity of appeal and opportunity of being heard, pass such order thereon as it thinks fit confirming, modifying or annulling the appeal ordered against. The termination of investigation as available under Rule 14 obviously correlates to the preliminary findings under Rule 12 and levy of provisional duty under Rule 13. The question of final finding arises only under Rule 17. Therefore, the termination of investigation under Rule 14 cannot be output of final finding which is yet to be considered under such rule, Rule 14 prescribes that Designated Authority shall terminate the investigation immediately if it determines that the injury is negligible or less than the prescribed percentage of volume. If it happens at the preliminary stage than the Designated Authority obviously refuses to impose any duty but that does not necessarily mean investigation will be terminated forever before the final finding. If the authority at the time of final finding found certain materials on the basis of the information even then cannot be able to review the situation is nof a justifiable argument. Rule 16 prescribes for information. According to the petitioner himself, Rule 16 is different from confidential information under Rule 7. Good, bad or indifferent, if such disclosure of information becomes the basis of the final finding then obviously the authority in considering the matter will be empowered to review or recall the earlier order passed for termination of investigation at the provisional stage. It is well known under the law that any of the authorities who passes an order can recall and/or review the order so passed by him at any stage. Therefore, using of the words imposition of duty is de-minimis or de-minimis pending further investigation can hardly make any difference. In other words, de-minimis finding within the words "pending further investigation" is superfluous. The word de-minimis is no longer available in view of the final finding. Therefore, the word "de-minimis" or the words "de-minimis pending further investigation" has or have merged with the final finding. Now, the question is how the Designated Authority came to the conclusion in the final finding that volume or import from Bangladesh cannot be de-minimis. That determination obviously derived from the factual materials. If it is so it is very difficult for the writ court to ascertain whether such the materials can draw a final inference contrary to the preliminary finding or not, it appears one of the conditions for such interference is that the exporter was not present. The other condition is assessment of the exporters of Bangladesh who had supplied certain materials were not available. Such materials may or may not be correct but again that is the question of investigation of factual materials by a forums made for the purpose under the statute. Therefore, I do not find any reason for interference of the writ court in those subjects. In other words, the decision of the writ court may not be so efficacious remedy as it has to be made under the statute, Fat obviously there is a valid point for the purpose of taking decision by the forum or forums made for the same.
21. Therefore, taking into totality of the matter I am of the view that the writ petitions are liable to be dismissed. Accordingly writ petition are dismissed. However this order will not prevent the petitioner from filing an appropriate appeal or review petition before the appropriate forum, if not already filed by him or by the exporters or by any of the interested parties as it has been reported to this Court. For the purpose of getting opportunity of preferring appeal or review, the time period between the date of filing the writ petition challenging this final finding and the date of obtaining the certified copy of the order passed hereunder is excluded. The appropriate forum or forums made for it will be entitled to take decision independently on the basis of the materials available before it without being influenced by the observation and order passed by this court. Interim order/s, if any, stand vacated. No order is passed as to costs. This order will have binding effect on both the writ petitions being W.P. No. 2653 of 2001 (Debraj Deij v. Union of India and Ors.) and W.P. No. 649 of 2001 (Debraj Dey v. Government of India and Ors.).
22. Prayer for stay is made, considered and refused.
Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing Up and completion of the order and certified copy of this judgment.
23. All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the court in respect as above.