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[Cites 2, Cited by 0]

Gujarat High Court

Farmson Pharmaceuticals Gujarat ... vs Union Of India on 9 May, 2019

Author: S.R.Brahmbhatt

Bench: S.R.Brahmbhatt

       C/SCA/5278/2019                                      IA ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2019
                               In
          R/SPECIAL CIVIL APPLICATION NO. 5278 of 2019
================================================================

SAMIR KALYANJIBHAI PATEL Versus UNION OF INDIA ================================================================ Appearance:

MR MIHIR JOSHI, SENIOR ADVOCATE WITH GARGI R VYAS WITH RAJESH SHARMA for the Applicant MR KSHITIJ AMIN WITH MR DEVANG VYAS for the RESPONDENT(s) No. MR NIRZAR S DESAI for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE V. B. MAYANI Date : 09/05/2019 IA ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned counsels for the parties.
2. The applicants - original petitioners of Special Civil Application No. 5278 of 2019 have taken out this application with following prayers :
"A This Hon'ble Court be pleased to direct the Respondent No. 1, 3 and 4 to comply with the Order dated April 26, 2019 passed in IA 1 of 2019 in SCA 5278 of 2019 so as to suspend Notification No. 19/2019-Customs (ADD) dated April 16, 2019;
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      C/SCA/5278/2019                                          IA ORDER



                  B     This Hon'ble Court be pleased to direct
the Respondent No. 1, 3 and 4 to comply with the Order dated April 24, 2019 so as to issue necessary notification so as extend the antidumping duty as mentioned in Notification No. 39/2018 Custom (ADD) for the produce paracetamol dated 20.8.2018 for a further period of two months i.e. upto June 24, 2019;
C Ex-parte ad-interim relief in terms of para 10(A) and (B) above; and D Such other and further relief(s), as may be deemed just and proper may be kindly granted in the interest of justice, equity and good conscience."

Thus, what is essentially prayed for in this application is implementation of the orders passed by this Court in the proceedings of Special Civil Application No. 5278 of 20199.

3. The original petition i.e. Special Civil Application No. 5278 of 2019 was filed containing the following prayers :

A. This Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari as to quash and set aside Impugned Final Finding No. 7/16/2018-DGAD dated 29.01.2019 along with Disclosure Statement dated 15.01.2019 issued by the Respondent No. 2 and annexed at Annexure - G and H hereto;

and Page 2 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER B Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to direct Respondent No. 3 not to refrain from taking any steps in furtherance of the Impugned Final finding dated 29.01.2019 issued by it and annexed as Annexure - G and Annexure - H hereto;

C Pending admission, hearing and final disposal of this petition, this Hon'ble court be pleased to direct the Respondent Nos. 1 to 4 to ensure that subject goods that may be cleared are duly accounted for and further the importers be notified about pendency of the present petition before this Hon'ble Court and subject to the outcome of the same;

D Ad-interim reliefs in terms of prayer (B) and (C) above;

E Ex-partead-interim reliefs in terms of prayer (D) abvove; 

                  F     For cost; and

                  G     Such other and further orders as may be

considered fit and expedient in the facts of the case be passed.

Thus, the challenge was laid in the petition to the Final Finding No. 7/16/2018-DGAD dated 29.01.2019 along with Disclosure Statement dated 15.01.2019 respectively.

4. Under Final Finding dated 29.1.2019, the Competent Designated Authority did not recommend the continuation of the Anti- Dumping Duty Notification on the product called "Paracetamol".

5. The Court on 13.3.2019 recorded its prima-facie satisfaction qua breach of principles of natural justice on account of the facts on Page 3 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER record and hence issued notice for final disposal making it returnable on 27.3.2019.

6. The applicants have contended that Anti-Dumping duty was imposed on the product under notification dated 28.10.2013 and the same was thereafter extended vide notification dated 20.8.2018 as Sun-Set Review investigation was going on. The said extension was for a period of 6 months, which was likely to over by 26.4.2019 and in view thereof, in order to examine the rival contentions of the parties, the Court issued notice for final disposal making it returnable on 27.3.2019 i.e. much prior to the date when Anti-Dumping Duty extended notification was ending I..e 26.4.2019.

7. The Court has to pass order on 11.4.2019, which reproduce as under:

"Leave to amend.
On 13.03.2019, this Court passed the following order:
Notice for final disposal, returnable on 27 th March, 2019.
Learned counsel for the petitioner has invited our attention to the discloser statement and laid emphasis upon page No.206 and 207 to indicate that the columns which have been left blank or extract marks are provided, ordinarily ought not to have been left blank and therefore, this was specifically brought to the notice of the authority under the Page 4 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER objection dated 22.1.2019. The authority without there being any decision thereon, rendered its final findings, which could be seen from the page No. 261 and 262. In view thereof the Court is of the view that as there is a prima-facie breach of principle of natural justice as the decisions have been rendered prima-facie without affording appropriate material to the concerned, the Court has issued Notice for final disposal and have been expected from the other side to file reply, if any, by the returnable date, in case if notice is served within a reasonable time from today.
Learned counsel further submitted that conclusions are diametrical opposite to the final findings recorded.
Direct service is permitted."

Thereafter, time and again the matter has been adjourned.

Today, Shri Desai, learned advocate appears for the designated authority and submitted that the anxiety expressed on behalf of the petitioner that the anti dumping duty for extended period also would come to an end by 26.04.2019 and he is yet to receive instructions and reply, if any, for conducting the matter finally. In that view of the matter, he seeks time up to 22.04.2019 only. Learned counsel for the petitioner strongly opposes and apprehends that the period thereafter may not be sufficient to conduct Page 5 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER the main matter and by efflux of time the entire matter may be rendered infructuous.

In that view of the matter, we are of the view that in case if the matter is not conducted on 22.04.2019, the appropriate orders, including directing the authority to extend the anti dumping duty at least for one month period may be considered, to be issued. S.O. To 22.04.2019."

8. Then again on 24.4.2019, the Court passed the following order:

1. Ms. Vyas, learned counsel for the petitioner mentioned this matter in the morning indicating that the matter was listed on 22.4.2019 and the same was requested for posting on the next day i.e. today. Inadvertently instead of 24.4.2019 it was posted on 25.4.2019 and as there is an urgency the matter is requested to be taken up today with the intimation to all the parties and their counsels.

Accordingly the Court granted permission and the matter listed today itself.

2. The learned counsel appearing for respondent No.2 states that he is in fact aware of the orders passed in this matter but he received soft-copy of the reply to be filed and the same could be served upon the petitioner and hard- copy duly affirmed be placed on record by tomorrow i.e. 25.4.2019 as he has been informed that the affirmed copy is already dispatched.

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 C/SCA/5278/2019                                    IA ORDER



     3.      The   learned       counsel   appearing         for

petitioner submitted that in fact looking to the fact that the notification of 20.8.2018 would come to an end by 26.4.2019 in case if sometime is taken in filing rejoinder, if any, or the hearing of the matter is spilled over and not completed by then, the irretrievable situation may be created and, therefore, he urges the Court that the Court may by further interim direction direct the authorities to extend the antidumping duty for a further period of two months as it may take care of intervening summer vacation also and the matter be heard prior thereto and that would serve the interest of justice.

4. This Court is of the view that while issuing the notice on 13.3.2019 an order was passed indicating therein that the notice was being issued for final disposal and it was made returnable on 27.3.2019 the Court did advert there into the requirement of issuing of notice for final disposal bearing in mind that the notification of 20.8.2018 would expire on 26.4.2019. The matter thereafter was required to be adjourned at the instance of respondent as could be seen from the order of 11.4.2019 wherein also the Court in fact had reproduced the earlier order only with a view to infuse the sense of urgency which appears to have worked but not to the fullest as Page 7 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER though the reply has come but in a soft copy which cannot be placed on record and there is a justification on the part of the counsel for the petitioner with respect to the appropriate direction for extending the antidumping duty so that the subject matter of petition may not be rendered infructuous and irretrievable situation may be avoided. The Court is, therefore, of the view that let there be a direction to respondent No.1 that the antidumping duty as mention in Notification No.392018Custom(ADD) for the product paracetamol dated 20.8.2018 at page 119 shall be extended for a further period of two months that would take care of hearing aspect as by then the pleading would be completed. The antidumping duty as mentioned in the notification dated 20.8.2018 be extended for a further period upto 24.6.2019. The matter may be posted for hearing on 12.6.2019 and the parties shall exchange their pleadings, if any, in the meantime so that on 12.6.2019 the matter can be taken up peremptorily.

5. It would be open for the petitioner to serve copy of the order to the Director, Tax Research Unit, Department of Commerce, Ministry of Finance for compliance.

Direct service today is permitted."

The order reproduced hereinabove of 24.4.2019 contains details, Page 8 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER which at this stage did not elaborate further.

9. The petitioners were constrained to file Civil Application (for Direction) No. 1 of 2019 in Special Civil Application No. 5278 of 2019, as in the interregnum period, it transpired that notification dated 20.8.2019, which was to enure till 26.4.2019 has been rescinded and hence, Civil Application No. 1 of 2019 was preferred, wherein, the Court passed an order on 26.4.2019, which is reproduced as under:

"1. Heard learned advocates for the parties.
2. The present application has been filed for following prayers:
"9(A) This Hon'ble Court be pleased to quash and set aside Notification No. 19/2019-Customs (ADD) dated April 16, 2014;

9(B) Pending hearing and disposal of Special Civil Application 5278/2019, this Hon'ble Court be pleased to stay the effect and implementation of Notification No.19/2019- Customs (ADD) dated April 16, 2014;

9(C) Ex parte ad interim relief in terms of para 9 (B) above;"

3. The peculiar facts for making this application and seeking prayer would indicate that the applicants-original petitioners have taken out Special Civil Application No.5278 of 2019, inter alia, challenging the final finding No.07/16/2018-DGAD dated 29/01/2019 and the disclosure statement dated 15/01/2019 issued by respondent no.2 and placed at Annexure-G and Annexure-H to the main petition.
4. The Union of India is respondent no.1 and the Designated Authority is respondent no.2. Minister of Finance, Department of Revenue is respondent no.3 and Central Board of Indirect Taxes and Customs, Ministry of Finance is respondent no.4.
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C/SCA/5278/2019 IA ORDER
5. In the main petition, prayer in para-36(B) is for interim direction for not taking any steps pursuant to the impugned final finding dated 29/01/2019.
6. This Court, on 13/03/2019, passed the order for issuance of notice for final disposal making it returnable on 27/03/2019. The notice for final disposal was issued without any further ad interim relief as the anti dumping duty on the product "paracetamol" was extended and continuing as per notification dated 20/08/2018 till 26/04/2019. The said notification is placed on record of the main petition at page- 119.
7. The following narration of the notification deserve to be set out herein below:
"2A. In pursuance of the recommendation of the designated authority in the review initiated vide notification No.07/16/2018-DGAD, dated the 24th May, 2018, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 24 th May, 2018, in the matter of continuation of antidumping duty on imports of "Paracetamol"

originating in or exported from China PR, notwithstanding anything contained in paragraph 2, this notification shall remain in force, unless revoked,suspended or amended earlier, up to and inclusive of the 26 April, 2019."

th

8. The date of March was fixed bearing in mind the fact that anti-dumping duty was extended till 26/04/2019. The Court also observed in the order of 13/03/2019 that the Court issued notice for final disposal and reply if any was expected to be filed by the returnable date. The Court had to pass the order on 11/04/2019 which reads as under:

"Leave to amend.
On 13.03.2019, this Court passed the following order:
Notice for final disposal, returnable on 27th March, 2019.
Page 10 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019
C/SCA/5278/2019 IA ORDER Learned counsel for the petitioner has invited our attention to the discloser statement and laid emphasis upon page No.206 and 207 to indicate that the columns which have been left blank or extract marks are provided, ordinarily ought not to have been left blank and therefore, this was specifically brought to the notice of the authority under the objection dated 22.1.2019. The authority without there being any decision thereon, rendered its final findings, which could be seen from the page No. 261 and 262. In view thereof the Court is of the view that as there is a primafacie breach of principle of natural justice as the decisions have been rendered prima-facie without affording appropriate material to the concerned, the Court has issued Notice for final disposal and have been expected from the other side to file reply, if any, by the returnable date, in case if notice is served within a reasonable time from today.
Learned counsel further submitted that conclusions are diametrical opposite to the final findings recorded.
Direct service is permitted."

Thereafter, time and again the matter has been adjourned.

Today, Shri Desai, learned advocate appears for the designated authority and submitted that the anxiety expressed on behalf of the petitioner that the anti dumping duty for extended period also would come to an end by 26.04.2019 and he is yet to receive instructions and reply, if any, for conducting the matter finally. In that view of the matter, he seeks time up to 22.04.2019 only. Learned counsel for the petitioner strongly opposes and apprehends that the period thereafter may not be sufficient to conduct the main matter and by efflux of time the entire matter may be rendered infructuous.

In that view of the matter, we are of the view that in case if the matter is not conducted on 22.04.2019, the appropriate orders, including directing the authority to extend the anti dumping duty at least for one month Page 11 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER period may be considered, to be issued. S.O. To 22.04.2019. "

9. On 24/04/2019, the Court passed following order:
"1.Ms. Vyas, learned counsel for the petitioner mentioned this matter in the morning indicating that the matter was listed on 22.4.2019 and the same was requested for posting on the next day I.e. today. Inadvertently instead of 24.4.2019 it was posted on 25.4.2019 and as there is an urgency the matter is requested to be taken up today with the intimation to all the parties and their counsels. Accordingly the Court granted permission and the matter listed today itself.
2. The learned counsel appearing for respondent No.2 states that he is in fact aware of the orders passed in this matter but he received soft-copy of the reply to be filed and the same could be served upon the petitioner and hard- copy duly affirmed be placed on record by tomorrow I.e. 25.4.2019 as he has been informed that the affirmed copy is already dispatched.
3. The learned counsel appearing for petitioner submitted that in fact looking to the fact that the notification of 20.8.2018 would come to an end by 26.4.2019 in case if sometime is taken in filing rejoinder, if any, or the hearing of the matter is spilled over and not completed by then, the irretrievable situation may be created and, therefore, he urges the Court that the Court may by further interim direction direct the authorities to extend the anti-dumping duty for a further period of two months as it may take care of intervening summer vacation also and the matter be heard prior thereto and that would serve the interest of justice.
4. This Court is of the view that while issuing the notice on 13.3.2019 an order was passed indicating therein that the notice was being issued for final disposal and it was made returnable on 27.3.2019 the Court did advert there into the requirement of issuing of notice for final disposal bearing in mind that the notification Page 12 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER of 20.8.2018 would expire on 26.4.2019. The matter thereafter was required to be adjourned at the instance of respondent as could be seen from the order of 11.4.2019 wherein also the Court in fact had reproduced the earlier order only with a view to infuse the sense of urgency which appears to have worked but not to the fullest as though the reply has come but in a soft copy which cannot be placed on record and there is a justification on the part of the counsel for the petitioner with respect to the appropriate direction for extending the anti-dumping duty so that the subject matter of petition may not be rendered infructuous and irretrievable situation may be avoided. The Court is, therefore, of the view that let there be a direction to respondent No.1 that the anti-dumping duty as mention in Notification No.392018Custom(ADD) for the product paracetamol dated 20.8.2018 at page 119 shall be extended for a further period of two months that would take care of hearing aspect as by then the pleading would be completed. The anti-dumping duty as mentioned in the notification dated 20.8.2018 be extended for a further period up to 24.6.2019. The matter may be posted for hearing on 12.6.2019 and the parties shall exchange their pleadings, if any, in the meantime so that on 12.6.2019 the matter can be taken up peremptorily.
5. It would be open for the petitioner to serve copy of the order to the Director, Tax Research Unit, Department of Commerce, Ministry of Finance for compliance.
Direct service today is permitted."

10. The present application is filed as it was disclosed yesterday when the Civil Application was being mentioned for urgent circulation that the applicant has been informed and the counsel for the authority also came to know with appropriate inquiries with the concerned that the notification impugned in this application dated 16/04/2019 has already been passed rescinding the notification dated 20/08/2018 which in fact an effect of rendering the main petition infructuous.

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C/SCA/5278/2019 IA ORDER

11. The counsel for the applicant submitted that though the order of 24/04/2019 passed by the Court was passed after rescinding of the notification, but, at that time, as it is clearly emerging from what had transpired in the proceedings that neither the counsel for the authority or the petitioner had in knowledge of the rescinding notification dated 16/04/2019 and therefore, the same has not been even reflected in the reply affidavit of the authority. Perhaps the reason being the notification of 16/04/2019 was issued by the authority of the Union of India other than the Designated Authority and, therefore, on account of some lack of communication, this matter happened.

12. The learned counsel appearing for the respondents submitted that in fact the Court may pass appropriate order whereunder the imports that may be made after 16/04/2019, could be recorded so that ultimate outcome of the petition may govern the same, else the notification which was inure till 26/04/2019 has in fact been rescinded and when the Court pass an order on 24.04.2019, the factum of rescinding had already set in. Therefore, the Court may not pass any mandatory order.

13. The Court is of the view that the development in this matter and the passing of the orders time and again clearly indicate that the matter was to be decided finally on or before 26/04/2019. However, on account of respondents' inability to place on record their version of reply, the matter was required to be adjourned and that adjournment and posting of the matter unfortunately has resulted into passing of the notification of 16/04/2019 which if not suspended would amount to rendering the Court's order and proceedings infructuous without there being adjudication which situation cannot be permitted to prevail in any circumstances especially when the High Court is examining the final finding under Article 226 of the Constitution of India and when the Court has informed all the concerned by way of orders that the notice was being issued for final finding it was expected of all to be mindful of the time line fixed by Page 14 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER the Court so as to contribute in the proceedings of hearing and adjudication which was subject matter of the main petition.

14. The said subject matter cannot be permitted to be rendered infructuous only on account of, may be inadvertence, on part of the Union of India. Nor would any order of recording import hereafter be of any help to the petitioner as the petition would become infructuous if the impugned notification in this application is permitted to be remained operative.

15. Hence, the Court is constrained to suspend the notification dated 16/04/2019 till final disposal of the main petition which is ordered to be placed on 12/06/2019.

Direct service today is permitted."

10.The present application is filed as the order passed by this Court suspending the rescinded notification dated 16.4.2019 had not been acted upon nor was there any action qua order dated 24.4.2019, as mentioned in the Civil Application.

11.The learned counsel appearing for the respondents on advance copy places on record the Office Memorandum dated 6.5.2019. The same is also reproduced for the sake of ready reference.

:Office Memorandum:

Subject : Order of the Hon'ble Gujarat High Court in SCA No. 5278 of 2019 regarding the Sunset Review of Anti-dumping investigation concerning imports of "Paracetamol" originating in or exported from China PR-reg.
The undersigned is directed to refer to the Hon'ble Gujarat High Court orders dated 24th & 26th Page 15 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER April, 2019, in the Special Civil Application No. 5278 of 2019 (copies enclosed).
2. To briefly recapitulate, M/s. Farmson Pharmaceuticals Gujarat Private Limited had filed Special Civil Application No. 5278 of 2019 in the Hon'ble Gujarat High Court, challenging the sunset review final findings of Directorate General of Trade Remedies (DGTR), Directorate General of Trade Remedies, Department of Revenue and CBIC are respondents in the case.
3. The anti-dumping duty was imposed vide notification No. 25/2013-Customs dated 26.10.2013 for a period of 5 years. The Directorate General of Trade Remedies (DGTR) initiated sunset review vide notification dated 7/16/2018-DGAD dated 24.5.2018 and recommended extension of anti-dumping duty till 26.4.2019. Accordingly, vide notification No. 39/2018-

Customs (ADD) dated 20.08.2018 anti-dumping duty on imports of 'Paracetamol' originating in or exported from China PR, was extended till 26.4.2019.

3.1 Subsequently, the DGTR in the final findings in the aforesaid Sunset Review investigation did not recommended continuation of anti-dumping duty on imports of 'Paracetamol' originating in or exported from Chine PR. These recommendations were accepted by the competent authority and vide notification No. 19/2019-Customs (ADD) dated 16.04.2019, anti- dumping duty was withdrawn.

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C/SCA/5278/2019 IA ORDER

4. Further, an e-mail was received from petitioner's counsel on 25.04.2019 enclosing therewith orders of the Hon'ble High Court of Gujarat dated 24.04.2019. However, in this regard neither any petition/notice was serviced upon, nor comments were sought from the Department of Revenue (DoR). Vide said order, the Hon'ble High Court directed to extend the validity of notification No. 39/2018-Customs (ADD) dated 20.08.2018 by two months. However, the notification had already been rescinded (vide notification No. 19/2019-Customs (ADD) dated 16.4.2019), upon approval of the Finance Minister, therefore, the factual position was intimated to Hon'ble Court through Counsel after obtaining approval from the Revenue Secretary.

5. On 26th April, 2019 we had received another e- mail from Ms. Gargi Vyas, advocate for the petitioner, regarding another order of the Hon'ble High Court of Gujarat, dated 26.04.2019, as informed the Hon'ble High Court of Gujarat in its order dated 26.04.2019 had suspended the effect and implementation of the notification No. 19/2019-Customs (ADD) dated 16.4.2019. It appears that the decision by the Hon'ble High Court dated 26.04.2019 was issued upon bringing to the Court's notice of the fact of rescinding of impugned notification. The order was served on us at 21:00 hrs on 26.04.2019.

6. In the said order, the Hon'ble High Court had Page 17 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER suspended the extending notification No. 19/2019- Customs (ADD) dated 16.4.2019. While suspending the notification dated 16.04.2019 has not issued any further direction with reference to its earlier order dated 24.04.2019 for extending the validity of notification No. 39/20180-customs (ADD). The original validity of notification No. 39/2018-Customs (ADD) was upto 26.04.2019. However, upon acceptance of findings in sunset review, this notification was rescinding on 16.04.2019. The suspension of rescinding notification by the Hon'ble High Court would not extend the validity of Notification No. 39/2018-customs (ADD) beyond 26.04.2019. In the circumstances no further action remained at end of DoR, in the matter. As regards further course of judicial remedy, if any, the matter is being forwarded to your office with the approval of Revenue Secretary, for appropriate examination on merit and action."

12. The counsel for the applicants strenuously urged that authorities could not have flouted the order of this Court and application is essentially for seeking implementation of the order, as the authorities cannot be permitted to flout the order with impunity. The decision in case of The Commissioner, Karnataka Housing Board Vs. C. Muddaiah, reported in AIR 2007 SC 3100, is relied upon with special emphasis upon para nos. 30, 31, and 32, which are reproduced as under:

30. Bare reading of the above order makes it more than clear that the salary to be paid to the writ petitioner was from October 27, 1997 to February 28, Page 18 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER 1998. It was expressly stated that the writ-petitioner would not be entitled to arrears of pay and allowances for any earlier period "since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers". It is thus obvious that in spite of clear direction issued by a competent Court, no payment was made and an express order was passed to the effect that the writ- petitioner would not be entitled to pay as he had not worked. The writ-petitioner, therefore, had legitimate grievance against such direction. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified in granting the prayer.
31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a Page 19 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can Page 20 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected. "
(emphasis supplied)

13.The Court was requested by counsel for the respondents to keep back the matter for a while so as to enable the counsels to obtain specific instructions on the Office Memorandum as it was submitted that the same would amount to authority declining to obey the order of this Court. The counsel for the respondents after obtaining instructions submitted that the authorities are unable to instruct him other than what is stated in the Office Memorandum, as that may be taken as a stand of the respondents and it was urged that else the Court may differ the matter for 4 days so that authority may take appropriate decision. This request was strongly objected by the counsel for the petitioners, as the Court's last working day before summer vacation is 10.5.2019 and in any manner, the authorities cannot be taken a stand for defying the order of this Court when they have chosen not to challenge the same and as it stands as on date.

14. This Court has reproduced the earlier orders only to indicate that time and again adjournments were sought by the respondent authorities and the Court granted the same, as the anti-dumping duty on the product was continuing till 26.4.2019. The Court when was passing the order on 24.4.2019, the authority unfortunately through their counsel did not inform the Court that on 16.4.2019 the notification had already been passed and the Court passed an Page 21 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER order on 24.4.2019 but it is also required to be noted that this order of 24.4.2019 has not been challenged in any forum nor has there been any application by and on behalf of the respondents to recall the same and/or review the same nor was such oral submission ever made when the court was informed during the course of hearing of Civil Application (IA), when the Court had to pass order on 26.4.2019. The order of 26.4.2019, therefore, is also unequivocally clear on this aspect. The Court after recording that a party cannot be permitted to take advantage of its own delay and omission in filing the reply and grant of adjournment to render the matter infructuous. The order of 26.4.2019 thus was unequivocally clear. When both the orders i.e. order dated 24.4.2019 and 26.4.2019 have not been challenged in any forum and when the original notification dated 20.8.2018 was ordered to be extended for further period upto 24.6.2019 and when the rescinding notification of 16.4.2019 had been suspended by this Court, there was only one course open to the authority is to extend the anti-dumping duty notification. We are of the view that the possibility of submission qua the notification not being revived on account of interim order etc. also would be not available on account of the fact that a party to the litigation cannot be permitted to take advantage of its own omission to render the entire matter infructuous to the prejudice and the other party.

15.The Court is of the view that nothing prevented the respondents from approaching this Court for seeking appropriate relief / clarification. Unfortunately, close perusal of Office Memorandum dated 6.5.2019 reproduced hereinabove rather indicates the authority's conduct in avoiding the compliance with the Court's order. The author of the Office Memorandum clearly reveals uncanny and enigmatic recalcitrant approach on the part of the Page 22 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER authority in complying with the order of this Court when these orders being not subjected to any further challenge or sought to be reviewed. The resultant effect of the two orders i.e. 24.4.2019 and 26.4.2019 left no room for any other option to the authority but to pass appropriate order and extend the anti-dumping duty notification. We are at pain to observe that para-6 of the Office Memorandum clearly betrays an unlawful and illegal examining by authority examining the orders of this court. Nothing prevented the respondents from approaching this Court or Supreme Court for obtaining appropriate orders but in absence thereof the authority themselves cannot decide not to comply with the order.

16.Against these backdrops, we are called upon to examine the prayers made in this application. If these prayers are not granted, it would amount to permit the respondents to render petition infructuous solely on account of their omission to file reply and without adjudication, which cannot be permitted in a society wedding to rule of law. The respondents cannot be permitted to arrogate any jurisdiction and power, which they did not have to thwart and impead the operation of Court's order. Therefore, we are of the considered view that appropriate relief, at this stage, if not granted, it would result into miscarriage of justice, which cannot be permitted and hence the respondents are hereby directed to comply with the order dated 24.4.2019 and 26.4.2019, operative part whereof, have been reproduced hereinabove, as a result thereof, the authority shall issue extension notification, extending the anti- dumping duty, as ordered in order dated 24.4.2019.

17.In view of aforesaid, NOTICE returnable on 12.6.2019. Shri Kshitij Amin, learned counsel and Shri Nirzar Desai, learned counsel waives service of notice on behalf of respondent Nos. 1,3,4 Page 23 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019 C/SCA/5278/2019 IA ORDER and 2 respectively. The respondent no. 1 through an officer not below the rank of Secretary of the concerned department shall file an affidavit explaining as to why appropriate action be not initiated for non-compliance with the orders of this Court.

18.Direct service permitted today.

(S.R.BRAHMBHATT, J) (V. B. MAYANI, J) P.S. JOSH Page 24 of 24 Downloaded on : Tue Jun 25 00:59:06 IST 2019