Gujarat High Court
Bodal Chemicals Ltd. vs Union Of India on 20 February, 2020
Equivalent citations: AIRONLINE 2020 GUJ 79
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/13485/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13485 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
=============================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=============================================
BODAL CHEMICALS LTD. & 1 others
Versus
UNION OF INDIA & 2 others
=============================================
Appearance:
MR. MIHIR JOSHI, SR. COUNSEL, WITH MR. P. R. GUPTA,
ADVOCATE for the Petitioner Nos. 1 - 2
KUNTAL A PARIKH, ADVOCATE for the Respondent No. 3
MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL for the
Respondent No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 20/02/2020
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) Page 1 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
1. The petitioners by way of this petition have approached this Court invoking Articles 226 and 227 and Articles 14, 19(1) (g), 265 & 300-A of the Constitution of India with following prayers.
"(A) That Your Lordship may be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the impugned initiation Notification No.14/35/2015-DGAD dated 01.06.2016 ;
(B) That your Lordship may be pleased to issue a Writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction thereby completely and permanently prohibiting Respondent Nos.1 and 2 their servants and agents from taking any action pursuant to initiation Notification No.14/35/2015-DGAD dated 01.06.2016 ;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the respondents, their servants and agents from, taking any further action against the petitioners pursuant to initiation Notification No.14/35/2015-DGAD dated 01.06.2016 ;Page 2 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
(D) An ex-parte ad-interim relief in terms of para (C) above may kindly be granted ;
(E) Any other further relief as may be
deemed fit in the facts and
circumstances of the case may also be granted."
Thus, what is essentially under challenge is the Notification No.14/35/2015-DGAD dated 01.06.2016 issued by respondent no.2, alleging that the same is without authority of law, contrary to the Act and the Rules and based on assumptions and presumptions, without any basis and without examination of preconditions of initiation of a valid investigation.
2. The facts in brief as could be gathered from the memo of the petition deserve to be set-out as under :-
2.1 The petitioner Company is engaged in the business of manufacture of various chemicals and has a factory at Plot No.123-124, Phase-I, G.I.D.C., Vatva, Ahmedabad. The petitioner no.2 is the Director of the petitioner company.
2.2 The respondent no.3 i.e. M/s. Himadri Chemicals & Industries Ltd., has filed an application for imposition of Anti-
dumping duty on imports of Naphthalene. It is contended that while seeking initiation, the respondent no.3 has mischievously given truncated information of total domestic industries account for a major proportion of the total Page 3 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT production in India in terms of Rule 2(b) of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as "the Rules"). It is alleged that the respondent no.3 while claiming itself to be domestic industry has excluded production of refined naphthalene used captively from the total domestic production to mislead respondent no.2 while applying pre- conditions of Rule 2(b) of the said Rules. The petitioner has further contended that a plain reading of Rule 2(b) of the rules would go to show that the term "total domestic production of that article" cannot be read to mean that production of that article for captive consumption is not domestic production in India. The export sales of subject goods are added to determine total domestic production of that article while testing pre-conditions of Rule 2(b). It is further contended that the respondent no.3 before respondent no.2 is not eligible domestic industry in terms of Rule 2(b) if correct figures are taken, as they do not account for a major proportion of total production in India.
2.3 The petitioners have further contended that the producers who are opposing the investigation are producing more than the respondent no.3 and therefore, the respondent no.3 cannot be said to be a producer of a major proportion of the total production of Refined Naphthalene. On 1st June 2016, initiation Notification was issued by the respondent no.2 on the basis of averments made by respondent no.3 i.e. M/s. Himadri Chemicals & Industries Ltd., in their application. The respondent no.2 in the initiation notification does not examine or record his determination which is mandatory as a Page 4 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT pre-condition of Rule 2(b) and Rule 5(3) for valid initiation. The said impugned proceedings have been initiated without appropriately testing the preconditions of Rule 2(b) of the Rules for self imports. The respondent no.3 himself is one of the importers of the subject goods and therefore could not have claimed to be domestic industry in terms of Rule 2(b). The determination in this connection in the impugned initiation notification is in the nature of conclusion without recording reasons for the same and without recording quantum, nature and circumstances regarding such imports to exercise alleged discretion that is being claimed to be vested in respondent no.2 in some other past cases.
2.4 It was further contended by the petitioners that the fraudulent claims of support by other domestic producers were made by the respondent no.3 to mislead respondent no.2, who has, without examining details of total production in India and without seeking details of support or opposition to the application, proceeded to initiate the present investigation on unverified claims of the respondent no.3. The investigation was opposed by majority of the producers in India, despite such opposition to the application, the investigation is being continued and therefore is without jurisdiction.
2.5 It is further contended that an initiation notification similar to a show cause notice and cannot be vague, unclear and ambiguous. The product under consideration is referred to as "Naphthalene" in both its forms indicating thereby that there is only one product under consideration (as no separate determination under Rule 2(b) Page 5 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT and Rule 5(3) has been undertaken in the initiation notification). On 10th June 2016 and 13.06.2016, M/s. Indian Petro-Coal Products and Supreme Petro-Synth Specialties filed letter to the respondent no.2 placing on record that they do not support the application for imposition of anti-dumping duty on the Subject Goods.
2.6 The petitioners, thereafter filed various letters to respondent no.2 reiterating its submission that the present investigation was not justified and ought to be terminated as early as possible. That despite such repeated letters, respondent no.2 continued with the proceedings and conducted an oral hearing on 10th April 2017. The petitioners vide letter dated 13th April 2017 filed its written submissions with respect to oral hearing conducted by respondent no.2. By the said letter the petitioners reiterated its submissions made through its letters dated 21st November 2016, 26th December 2016 and 27th February 2017. It was contended that the approach adopted by the respondent no.2 to proceed with the investigation was contrary to the Act and the Rules.
2.7 The petitioners further contended that after the oral hearing and proceedings were over on 8th May 2017 support letters from Supreme Industries and Aparna Carbon under a premise that by oversight the same were not filed came to be filed. M/s. Supreme Industries, who is mentioned as supporter of the anti-dumping investigation in the application, filed an affidavit dated 15th May 2017 before respondent no.2 stating that they are opposing the investigation. Vide their letter dated 13th June 2017, they have already withdrawn their support for imposition of anti- dumping duty on the subject goods.
Page 6 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT2.8 It was further contended that the respondent no.2 though fully cognizant about the objections raised by the petitioners, the respondent no.2 appears to proceed with issuance of final findings under Rule 17 and recommend imposition of anti-dumping duties on subject goods originating and exported from subject countries in violation and contrary to the settled principles of law.
2.9 Being aggrieved and dissatisfied by the unauthorized actions of respondent nos.1 and 2 herein, and impugned initiation notification No.14/35/2015-DGAD dated 1st June 2016, the petitioners are constrained to approach this Court by way of present writ petition.
3. Shri Mihir Joshi, learned senior counsel for the petitioners submitted that the respondent no.2 grossly erred in initiating the impugned investigation, as the current investigation is without jurisdiction inasmuch as respondent no.3 does not have the requisite standing to file the application as they fail both the 25% and 50% tests for eligibility as mandated under Rule 5(3) of the Anti-dumping Rules and the respondent no.3 does not account for a major proportion of the total domestic production as envisaged under Rule 2(b) of the Rules. He further submitted that the respondent no.2 has failed to appreciate the fact that the impugned investigations are without jurisdiction, as the respondent no.3 could not have been considered as an eligible domestic industry in terms of Rule 2(b) of the said rules.
4. Learned counsel for the petitioners submitted that the respondent no.2 has failed to appreciate that the Page 7 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT impugned investigations are fundamentally flawed as the initiation proposes to investigate two different sets of "subject countries" for the very same "Product under Consideration". It is submitted that since the countries notified for investigations for Crude Naphthalene and Refined Naphthalene are different, it was incumbent upon respondent no.2 to carry out the necessary tests of "standing" of Domestic Industry, dumping as well as for injury and casual link separately for the said two products. It is further submitted that the respondent no.2 also failed to appreciate that the respondent no.3 does not fulfill the requirements of Rule 5(3). In terms of Rule 5(3), the respondent no.2 initiates an investigation only if the respondent no.3 accounts for a major proportion of the total domestic production. Learned counsel for the petitioners submitted that the respondent no.2 had been misled by the respondent no.3 by taking into account only the total domestic production provided by the respondent no.3 for calculating the standing of the respondent no.3 for filing the application. The respondent no.2 failed to take into account the production of some of the major producers of the product under consideration while examining the eligibility of the respondent no.3 to file the application in terms of Rule 5(3) of the Anti-dumping Rules, 1995 despite the fact that the names of such other producers were indeed available with him. It is submitted that the respondent no.2 failed to ascertain the total domestic production in the country before reaching to the conclusion regarding standing of the respondent no.3. The respondent no.2 further failed to examine the fact that the respondent no.3 had willfully not disclosed the production details of the other major producers of the project under consideration in their application.
Page 8 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT5. It is further submitted that the respondent no.2 failed to appreciate that the respondent no.3 would not pass the mandatory preconditions of Rule 2(b) read with Rule 5(3) if the total production of the other major producers of the Product under Consideration is taken into account. The respondent no.2 also failed to appreciate that the respondent no.3 fails the mandatory test of standing in terms of the Explanation to Rule 5(3) for Refined Naphthalene. It is submitted that since the respondent no.3 clearly accounts for just about one third of the production as compared to those opposing the application, it cannot be said to have been filed by or on behalf of the producers accounting for the major proportion of the total domestic production in the country.
6. Learned counsel for the petitioners submitted that the respondent no.2 failed to appreciate that the respondent no.3 fails the mandatory 25% test also in terms of Rule 5(3). It is further submitted that the investigations ought to have been terminated forthwith once it had sufficient controvertible information that the respondent no.3 had failed both the mandatory tests of standing as well as that of Domestic industry, specifically when the respondent no.3 deliberately suppressed the information about the total production of other producers of Refined Naphthalene. The respondent no.3 brought the issue of captive consumption for the very first time only after the petitioners brought to the notice of respondent no.2 about the existence of major producers engaged in the production of Refined Naphthalene for their own consumption and with the objective of getting investigations initiated, such information was withheld by the Page 9 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT respondent no.3 at the time of the initiation of investigation.
7. It is submitted that the respondent no.2 erred in not appreciating the fact that the proposition for exclusion of the producers who are captive users of the subject goods is not only bad in law but against the letter and spirit of Rule 5 as well as Articles 3 and 4 of the Anti-Dumping Agreement. He further submitted that it is not permissible to have two different sets of subject countries for a single product. The respondent no.2 has attempted to carry out investigations for two different products but has created confusion while carrying out the tests of eligibility and other preconditions. The respondent no.2 ought to have separately examined the tests of eligibility, as the countries notified for investigations are different. As the rules do not permit investigation against different countries for different forms of the very same product, the entire initiation is flawed. It is submitted that if the subject countries for the two different forms of the very same product under consideration are allowed to be different, then the entire exercise will also become unworkable. It is for this reason also that respondent no.2 never considers two different sets of countries for the same product under consideration. It is further submitted that the period of injury considered by the respondent no.3 for the purpose of injury assessment of Crude Naphthalene is 57 months while the period of injury considered by the domestic producer for the purpose of injury assessment of Refined Naphthalene is in any case cannot be more than 21 months as the respondent no.3 commenced the produced only in the year 2014-15. It is submitted that the respondent no.2 has grossly erred in taking the injury investigation period of five years in violation of its Page 10 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT own Trade Notice 2/2004 dated 12th May 2004 and the consistent practice of respondent no.2 without assigning any reasons for such a significant deviation.
8. It is submitted that there is no case of even prima facie injury to the Domestic Industry as admittedly their production increased consistently from 11,358 MT in the year 2012-13 to 19,152 MT in the POI; domestic sales increased consistently from 6,771 MT in the year 2012-13 to 12,593 MT in the POI; inventories declined from 330 (Indexed) in the year 2012-13 to 241 (Indexed) in the POI; cost per unit declined from 133 (Indexed) in the year 2012-13 to 119 (Indexed) in the POI; selling price per unit increased from 112 (Indexed) in the year 2012-13 to 114 (Indexed) in the POI; profit per unit declined from negative 1579 (Indexed) in the year 2012-13 to negative 332 (Indexed) in the POI; cash losses of negative 102 (Indexed) turned to significant cash profit of 49 (Indexed) in the POI; PBIT of negative 129 (Indexed) turned significantly positive of 64 (Indexed) in the POI and ROCE of negative 162 (Indexed) turned significantly positive of 55 (Indexed) in the POI.
9. It is further submitted that the respondent no.2 failed to adhere to the basic principles of natural justice inasmuch as it failed to provide the petitioners with the complete details of the application in the format issued by respondent no.2 which included soft copy of the Transaction- wise import data in MS Excel format; purchase policy, sales policy, store accounting policy, quality control policy; qualities of captive consumption for the POI and 2011-12 and quantitative injury information separately of Crude and Page 11 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT Refined Naphthalene.
10. Learned counsel for the petitioners further submitted that the respondent no.2 failed to decide the basic issues of jurisdiction upfront despite repeated reminders particularly in view of the fact that there are evidence on record which establish that the respondent no.3 do not have standing to file a valid application under the law. Rule 5 of the said rules, clearly shows that there has to be determination by the respondent no.2 into such jurisdictional issues before initiating investigation. The respondent no.2 failed to discharge its preliminary obligation, despite various submissions filed by the petitioners requesting for such determination and has committed an error in issuing initiation notification without determining the jurisdictional issues arising in the present case.
11. Learned counsel for the petitioners submitted that the factory of the petitioners is located in the State of Gujarat and the goods are also regularly imported by the petitioners within the State of Gujarat. The office of the petitioners is also located within the State of Gujarat. Thus, as aforesaid, all the consequences of the issue involved in the present petition shall fall on the petitioners and respondents within the State of Gujarat and therefore, the petitioners are constrained to approach this Court for appropriate orders, writs and directions inasmuch as the cause of action for filing the present petition by the petitioners has arisen within the territorial jurisdiction of this Court.
12. Learned counsel for the petitioners in support of his contentions, relied on the following decisions.
Page 12 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT(1) Kusum Ingots & Alloys Ltd., Vs. Union of India, reported in 2004 (168) E.L.T. 3 (S.C.) (2) J. K. Industries Ltd., Vs. Union of India, reported in 2005 (186) E.L.T. 3 (Raj.)
13. In reply to the submissions made by the learned counsel for the petitioners, Shri Devang Vyas, learned Assistant Solicitor General for the respondent no.1 filed affidavit-in-reply, contentions whereof could be summarized as under :-
A. That the present petition as titled under Article 226 of the Constitution of India challenging the Notification No.14/35/2015 - DGAD dated 1st June 2016 is not maintainable and deserves to be dismissed as the same is neither arbitrary nor is contrary to any of the provisions of existing law nor is without jurisdiction.
B. The present petition is not maintainable and deserves to be dismissed as the petitioner is having effective, efficacious alternative remedy provided under Section 9C of the Customs Tariff Act, 1975. The petitioner if at all aggrieved with the impugned notification, can prefer an appeal against the notification of Central Government in Anti- Dumping matters lies before CESTAT the appellate tribunal as provided under the Act. Therefore, the present petition is not maintainable and the same deserves to be dismissed on the ground of alternative remedy alone.Page 13 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
C. The Hon'ble Supreme Court of India in case of Nivedita Sharma Vs. Cellular Operators Association of India and others, (2011) 14 SCC 337, has been pleased to noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Hon'ble Supreme Court further noticed the previous decisions of the Hon'ble Supreme Courts wherein the Hon'ble Court adverted to the rule of self- restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person.
D. The Hon'ble Apex Court recently in case of Union of India Vs. Shri Kant Sharma, reported in 2015 (0) AIJEL-SC 56294 (2015 (6) SCC 773) has been pleased to consider the said judgment of Nivedita Sharma along with the other such judgments and has been pleased to observe as under :-
"34. The aforesaid decisions rendered by this Court can be summarised as follows :
(i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India. (Refer: L. Chandra and S.N.Mukherjee).
(ii) The jurisdiction of the High Court Page 14 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.
(Refer: Mafatlal Industries Ltd.).
(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer : Nivedita Sharma).
(iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer : Nivedita Sharma)."
That in view of the afore referred settled principle of law, the present petition deserves to be dismissed on the ground of alternative remedy along as the petitioner is having effective, efficacious alternative remedy to prefer an appeal u/S. 9C of the Customs Tariff Act, 1975.
Page 15 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENTE. It was submitted that the Initiation Notification dated 1st June 2016 was issued by the respondent no.2 at New Delhi. The Initiation Notification does not either create or negate any right in favour of the petitioners or impose any duty or cause any prejudice that gives rise to cause of action at this stage. It was submitted that an anticipatory event cannot give cause of action to the petitioners. It was further submitted that there was neither any restriction on petitioners' freedom of trade, nor any unauthorised imposition of tax nor is the petitioners' right to any property jeopardized by the Initiation Notification.
F. It was further submit that present petition is premature and filed with the motive of stalling a statutory investigation under the provisions of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995. Initiation notification is merely the commencement of the process to inquire into the factual position so as to enable the respondent no.2 to gather essential facts for the purpose to ultimately deciding whether or to impose nor not definitive measures.
G. It is submitted that all contentions raised by the petitioner no.1 before the respondent no.2 including with respect to its jurisdiction and the status of the Domestic Industry, are yet to be decided. The respondent no.2 is yet to issue a Disclosure Statement under Rule 16 of the said Rules, which would contain the essential facts for the interested parties to offer their comments and thereafter Final Findings under Rule 17 of the said Rules, recommending either Page 16 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT imposition of duty or terminating the investigation by accepting the contentions of the petitioner no.1 and other interested parties.
H. In the circumstances, there is no basis for the petitioners to challenge the Initiation Notification without awaiting the outcome of its submissions. It is therefore submitted that ongoing investigation/ enquiry permitted to be concluded.
I. It is submitted that the subject petition suffers from the vice of delay, latches and acquiescence. It is submitted that the Initiation Notification was issued on 1st June 2016 pursuant to an application dated 17th December 2015. The respondent no.2 has therefore, considered all essential aspects and applied its mind before initiating the investigation. The petitioner no.1 has participated in the investigation by filing the questionnaire response in capacity of an importer/user, making submissions and attended hearing. I submit that having participated in the proceedings by raising objections, it was incumbent on the petitioner to have waited for the outcome. It is further submitted that the subject petition is filed after almost 13 months of the issuance of Initiation Notification at the fag-end of investigation. Such a delay has not even been explained in the subject petition. I submit, at the cost of repetition, that the issuance of disclosure statement would have no bearing on the rights of the petitioners as the same is nothing but presentation of essential facts as per the relevant Anti-Dumping Rules and not a final determinations. Accordingly, the subject petition does not deserve to be entertained on account of unexplained delay, latches and acquiescence.
Page 17 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENTJ. Without prejudice to the above, it is submitted that the petitioners are not entitled to any relief since they approached this Hon'ble Court with unclean hands and suppressed material facts. It was further submitted that the petitioner no.1 has participated in the investigation on the basis of being an importer of Naphthalene for captive consumption. It was further submitted that the petitioner no.1 had tendered an importer questionnaire response on 5th August 2016 wherein it is stated that the petitioner no.1 imports refined Naphthalene for self-consumption. It is further submitted that while considering the scope of the domestic industry under Rule 2(b), the objective of the same is also required to be considered. Domestic industry is required to be considered in the context of like article being produced and sold by such domestic industry. Under Rule 2(d), "like article" means an article which is identical or alike in all respects to the article under investigation for being dumped in India or in the absence of such an article, another article which although not alike in all respects, has characteristics closely resembling those of the articles under investigation, which implies competition between a product sold and a product not sold. Unless a product is sold, it cannot be ascertained whether it has characteristics identical or closely resembling to the product under consideration. Thus, when the petitioner has not admittedly sold the product, it has not established that its product is like article to the imported product under consideration. Establishment of like article is a first pre-requisite under Rule 2(b), which provides that "domestic industry" means the domestic producers as a whole engaged in the manufacture of the like article and any Page 18 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term 'domestic industry' may be construed as referring to the rest of the producers." Thus, on no occasion, the petitioner established that its product is a like article to the imported product under consideration, as the same was not sold in the domestic market.
K. It was further submitted that the contention of the petitioners that the respondent no.1 has wrongly initiated the investigation since the two supporting parties have withdrawn support is baseless. The applicant submits that at the time of filing of application before designated authority applicant was having standing more than 50% individually and above 50% with the supporters. Thus, the applicant had a major proportion and satisfied the standing criteria in terms of Rule 5, even in the absence of any support to the application. It is also relevant to note that the product under consideration is one, i.e. "Naphthalene in both its forms". Thus the standing is required to be seen with reference to the product under consideration only not in respect of both its forms or product types separately.
L. It was further submitted that the standing of the application is required to be determined under Rule 5 prior to initiation. Once the Designated Authority has validly determined standing and initiated the investigations, the petition recedes in the background and Rule 6 comes in play.
Page 19 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENTUnder Rule 6 and thereafter from Rule 7 to Rule 17, the Designated Authority is not required to merely re-determine the scope of the domestic industry at the next stage of the investigations if necessitated. The petitioner is therefore required to establish before the Designated Authority or this Court relevance and importance of subsequent opposition to the application by a party who had validly and admittedly supported the petition prior to initiation.
M. It was further submitted that pursuant to the issuance of support letters originally, M/s. Supreme Industries modified the same vide undated letter no.SI/MC&I- Delhi/2015-16/DRN(ii)-161 and again vide letter undated letter no. SI/MC&I-Delhi/2015-16/DRN(ii)-162. The domestic industry vide affidavit dated 19th June 2017 placed on record such facts before the respondent no.2 through its consultant's letter dated 21st June 2017.
N. Without prejudice to the preliminary objections, It was submitted that the present petition raises several highly disputed questions of fact, inter alia pertaining to support to the investigation. In respect of the issues so raised before the respondent no.2, the Domestic Industry has filed its affidavit stating that the letters of support were in fact duly received by it. The respondent no.2 is seized of the matter and would have to decide whether or not the explanation given by the domestic industry merits acceptance. In such scenario, there is no justification for the petitioner to seek to scuttle such a process of enquiry and seek the determination these disputed issues by this Hon'ble Court under Article 226 of the Constitution of India.
Page 20 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENTO. It is further submitted that the case was initiated on 1st June 2016. The last date of 31st May 2017 has been extended by three months till 31st August 2017. Before the final recommendations the Authority has to issue a disclosure statement as per Rule 16 of AD Rules, on which all concerned interested parties including the petitioner would have the opportunity to submit their points/concerns. Therefore, there is no denial of natural justice or a prejudice as the petitioners will have ample opportunity to submit their concerns before respondent no.2.
14. Further the respondent no.1 denied each and every allegations made by the petitioners in this petition and submitted that as per Section 9C of the Customs Tariff Act, 1975 an appeal against the notification of Central Government in Anti-Dumping matters lies before CESTAT the appellate tribunal. Therefore, the present petition is not maintainable and the same deserves to be dismissed on the ground of alternative remedy alone.
15. To support his contentions, learned Assistant Solicitor General for the respondent no.1 has relied on the following decisions.
(1) Union of India and others Vs. Adani Exports Ltd., and another, reported in (2002) 1 Supreme Court Cases 567.
(2) State of Gujarat Fertilizers &
Chem. Ltd., Vs. Addl. Secy. &
Designated Authority, reported in
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C/SCA/13485/2017 CAV JUDGMENT
2012 (286) E.L.T. 348 (Cal.)
(3) Surefaces Plus Vs. Union of India,
reported in 2004 (173) E.L.T. 127
(Guj.).
(4) Indian Express Newspapers
(Bombay) Ltd., Vs. Union of India,
reported in 2003 (157) E.L.T. 138
(Del.).
(5) Outokumpu Stainless Vs. Union of
India, reported in 2013 (288) E.L.T.
67 (Mad.).
It is submitted in the rejoinder that in paragraph 1 & 2 of the affidavit in reply, it is submitted that the deponent is filing the reply for and on behalf of the Union of India i.e. respondent no.1; however, the deponent is an officer of the respondent no.2 and would therefore, otherwise not be competent to file a reply on behalf of the respondent no.1. The petitioners without prejudice to the aforesaid objection, deny the averment made in paragraph 4 (A) of the said affidavit in reply as it is vague, general and without any substantiation. It is denied that the averment that the initiation Notification is neither arbitrary nor is without jurisdiction.
The petitioners deny averments made in paragraph 4 (B) and submitted that present petition is maintainable under law as the petitioners do not have any other efficacious remedy. The law provides for an appeal against the final Page 22 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT notification issued by the Central Government and such appeal is even otherwise not maintainable against an initiation notification, disclosure statement or final finding issued prior to the said final notification. The petitioners have no appellate remedy available as the petitioners by way of present petition questioned the jurisdiction of the initiation notification itself. It is submitted that now, it is a well settled law by virtue of various judgments of the Supreme Court and this Court that an action initiated without jurisdiction can be challenged before the Court of law under Article 226 of the Constitution of India. As regards the averments made in paragraph 4 (C) and (D) it is submitted that the decisions cited by the respondent no.1 are completely on different facts and also on completely different question of law and therefore, the law laid down by the Supreme Court in the said judgments are not at all relevant and have no bearing to the facts of the present case. It is denied that no prejudice caused to the petitioners on account of issuance of initiation notification. It is submitted that the law has contemplated initiation of investigation into levy of anti-dumping duty only if certain parameters are fulfilled. Unless such parameters and preconditions are satisfied, the initiation of the proceedings would be clearly without jurisdiction and hence the petitioners have every right to question the jurisdiction of initiation of the proceeding. The petitioners deny that the present petition is premature and is filed with the motive of stalling a statutory investigation. Though the petitioners have raise such preliminary issues of jurisdiction, the respondents have for the reasons best known to them, refrained from deciding such important issues and illegally proceeded further in the investigation without deciding such issues and Page 23 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT therefore, the petitioners constrained to approach this Court for direction to the respondent authority for deciding such vital issues or in the alternative, hold that such proceedings as ex-facie, illegal and without jurisdiction.
The petitioners in their affidavit-in-rejoinder submitted that the interpretation of the respondent that such issues are in consideration and will be decided in due course on issuance of disclosure statement and final finding is contrary to the scheme of the Act and the rules made thereunder. The say of the respondent authority that such determination is pending and would be decided while issuing the disclosure statement and final finding is also on the face of it illegal and untenable. It is further submitted in the rejoinder that there has been no delay on the part of the petitioners and the said submission has been raised clearly for creating a prejudice against the petitioners as on one hand, the respondent have alleged that the petition is delayed whereas on the other hand, stated that the petition is pre- mature. On receiving the initiation notification, the petitioners communicated their response and also raised the jurisdictional issues required to be decided by the respondent authority. Despite such important issues raised, the respondent authority has willfully failed to and neglected to decide such issues which has constrained the petitioners to file the present petition. It is denied that there has been any suppression on part of the petitioners and put the respondent to strict proof thereof. The fact that the petitioner company is an importer has been duly disclosed before the respondent and has also been stated in the petition and therefore, there has been no suppression of facts on the part of the petitioners.
Page 24 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENTIt is submitted that the respondent no.3 does not fulfill the criteria for being considered as a domestic industry as complete information regarding the total production of the product in question were not put before the respondent no.2 and therefore, the say of the respondent that respondent no.3 fulfilled the criteria is without any basis or justification. It is further submitted in the rejoinder that the supporting affidavit submitted by the respondent no.3 were not based on legal consent and were submitted fraudulently. These facts have been completely overlooked by the respondent as the entire averment in the said paragraph proceeds on the presumption that such support was subsequently withdrawn which is in fact contrary to the affidavits and letters submitted by the petitioners which are on record of the case. It is submitted that it is an undisputed fact that the petitioners are producer of product under consideration and so are other producers, who have placed opposition to the investigation. If the total production of product under consideration is taken into account, the preconditions of Rule 2(b) and Rule 5(3) will fail and so would the initiation of the investigation. The respondent no.3 did not fulfill the criteria of being called a domestic industry and therefore, the initiation of the notification was illegal and bad in law. The respondent have incorrectly considered two separate products as one which is not envisaged under the scheme and also in violation of the specific exclusion provided under the Rules. It is stated that imports made by the petitioners is not a material fact as the petitioners are not claiming itself to be the domestic industry. The exclusion of the importer is only relevant in context of Rule 2(b) which provides for eligibility of a domestic industry and not a domestic producer.
Page 25 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT16. Shri Kuntal Parikh, learned counsel for the respondent no.3 filed affidavit-in-reply, which is as under :-
It is submitted that this Court has no territorial jurisdiction to try and entertain the present petition as no cause of action has arisen within the territorial jurisdiction of this Court. It is submitted that the initiation Notification dated 1st June 2006 was issued by the respondent no.2. The initiation Notification does not create any right in favour of the petitioner or cause any prejudice that gives rise to cause of action within the State of Gujarat. It is submitted that an anticipatory event cannot give cause of action to the petitioners.
It is submitted that the present petition is premature and is filed with oblique motive of stalling a statutory investigation under the said Rules. The initiation of investigation does not accord any right or benefit to the respondent no.3. It is submitted that the subject petition suffers from the vice of delay, latches and acquiescence. It is submitted that pursuant to an application dated 17th December 2015, the initiation notification was issued on 1 st June 2016. Therefore, it is apparent that the respondent no.2 has considered all aspects and applied its mind before initiating the investigation. The petitioner no.1 participated in the investigation by filing responses and attended hearing. It is submitted that having participated in the proceedings by raising objections, it was incumbent on the petitioners to have waited for the outcome. The subject petition is filed after 1 year and 1 month and 15 days of the issuance of initiation Page 26 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT Notification and such delay has not been explained in the subject petition.
It is submitted that the petitioners are not entitled to any relief since they approached this Court with unclean hands and have suppressed material facts. The petitioner has participated in the investigation on the basis of being an importer of Naphthalene for captive consumption. It is submitted that even as per letter dated 21st November 2016, submissions are filed on behalf of the petitioner no.1 as being an importer and not a manufacturer and therefore, it is apparent that the petitioner no.1 does not substantiate its claim as Domestic producer in India and appears to be using imported refined Naphthalene manufacture other products. It is further submitted that from a report of 2nd Quarter of FY 2017 available on petitioner no.1's website, it is apparent that Naphthalene is a raw material and not a finished good. It is submitted that a letter dated 24th April 2016 issued by Ministry of Environment, Forest & Climate Change gives details of the products of the petitioner no.1 for environmental clearance and expansion, does not include product under consideration as one of the products. This clearly establishes that the petitioner has not been allowed to consider product under consideration as a product that can be produced and sold by the company. The petitioner no.1 has not established that even the production of the product under consideration allegedly being claimed as production for captive consumption is available to the petitioner as a saleable product. The use of the refined Naphthalene as a raw material cannot bring the petitioner no.1 within the scope of the domestic industry under Rule 2(b).Page 27 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
It is submitted that contention of the petitioners that the respondent no.1 has wrongly initiated the investigation since the two supporting parties have withdrawn support is baseless. It is submitted that at the time of filing of application before Designated Authority the Answering respondent was having standing 54.85% individually and along with supporters it was 60.08%. It is further submitted that the support letters were filed by the respondent in support of its application dated 17th December 2015 prior to initiation and such letters were un-controverted as on 1st June 2016. It is submitted that the standing of the application for initiation is required to be determined under Rule 5 prior to initiation. The respondent no.3 vide affidavit dated 19th June 2017 has placed on record the facts regarding issuance of support letters of the M/s. Supreme Industries, through its Consultant's letter dated 21st June 2017 and vide such letter, the Consultants have also tendered post hearing submissions before the respondent no.2.
It is submitted that the present petition raises several highly disputed questions of fact, pertaining to support to the investigation for which the respondent no.3 has filed its affidavit. It is denied that the initiation of the present investigation is without jurisdiction and contrary to law. It is further submitted that till date the petitioner no.1 has failed to establish before the Designated Authority that it is indeed a producer of Naphthalene. It is denied that without examining the fact of imports made by the respondent no.3, the respondent no.2 initiated the investigation. It is submitted that petitioners have not established and substantiated its Page 28 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT claim as producer or Naphthalene before the Designated Authority or this Court. The petitioner no.1 is only an importer of crude Naphthalene to use the same for downstream products as one of various raw materials being consumed by it, can't be considered as eligible domestic producer in terms of Rule 2(b). It is further submitted that it is now well settled that "a mere wrong description of the source of power - a mere wrong label - cannot invalidate the action of an authority, if it is otherwise within its power" as held in Titagarh Paper Mills Ltd. Vs. Orissa SEB, (1975) 2 SCC 436, para 9). It is denied that the respondent no.2 is at the stage of issuance of final findings under Rule 17 of the Rules. The respondent no.2 is yet to issue a Disclosure Statement under Rule 16. The basis of the apprehension of the petitioners that final findings recommending duty will be issued is not known. It is denied that in the facts of the present case, there is any stage prior to issuance of Disclosure Statement to decide the issue of jurisdiction. The same would be decided either under Rule 16 or under Rule 17. If the petitioners' say is accepted, the respondent no.2 would terminate the investigation. If rejected, the respondent no.2 would either recommend duty or termination on the ground that no dumping or injury or injury margin is evident. It is however premature and in the realm of conjecture to conclude what the respondent no.2 is likely to conclude.
17. As against this, learned counsel for the petitioners filed affidavit-in-rejoinder, which could be summarized as under :-
It is submitted that this Court would have the territorial jurisdiction to decide the issues canvassed by the Page 29 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT petitioners and the petition is appropriately filed before this Court. It is further submitted that the law has contemplated initiation of investigation into levy of anti-dumping duty only if certain parameters are fulfilled. Unless such parameters and preconditions are satisfied, the initiation of the proceeding would be clearly without jurisdiction. Therefore, initiation notification issued by the respondent authority without appreciating whether the said parameters are fulfilled in present case or not, does not rise to a cause of action which can be challenged and questioned before this Court. The initiation of such proceeding would be clearly without jurisdiction. It is denied that the present petition is premature and is filed with the motive of stalling a statutory investigation. It is submitted that there has been no delay on the part of the petitioners. It is further submitted that all throughout the proceeding, the petitioners have raised their objections which have still not been decided by the respondent authority. As is evident from the affidavit in reply filed by the respondent authority, the respondent authority has acknowledged the receipt of such objections, but have suggested that such issues are yet to be decided.
In rejoinder to the affidavit-in-reply of respondent no.3, it is submitted by the petitioners that the initiation of the proceeding without satisfying the basic mandate is clearly in violation of the law and the petitioners being an interested party would certainly stand prejudicially effected if such proceeding are allowed to be proceeded further without determination as to its jurisdiction. As per the language adopted in Rule 5 of the said Rules, the respondent authority shall not initiate an investigation pursuant to an application Page 30 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT made under sub-rule (1) unless the authority determines that the pre-condition of the said section are satisfied. It is denied that there has been any suppression on the part of the petitioners, as the fact that the petitioners have been an importers is duly disclosed before the respondent authority and has also been stated in the petition. It is submitted that the respondent no.3 does not fulfill the criteria for being considered as a domestic industry as complete information regarding the total production of the product in question were not put before the respondent no.2 and therefore, the say of the respondent that they fulfilled the criteria is without any basis or justification. It is submitted that the issues raised by the petitioners are required to be decided as preliminary issue as it goes to the root of very initiation. It is incorrect to say that such issues can be decided at a later stage.
18. Heard learned counsels for the parties. Before adverting to their rival contentions, it would be most appropriate to set out indisputable facts emerging therefrom as under:
(a) The respondent no.3 filed an application dated 17.12.2015 before the Designated Authority under the provisions of Custom Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of injury) Rules 1995 (hereinafter referred to as 'the Anti Dumping Rules' for the sake of brevity) for initiation of anti-dumping investigation and imposition of Anti Dumping Duty in respect of imports of Crude and Refined Naphthalene.Page 31 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
(b) The Crude Naphthalene originating in or imported from China PR, European Union, Russia, Iran and Japan, whereas the Refined Naphthalene Originating in or exported from China PR, European Union and Taiwan. Thus the product is bifurcated into two forms namely Crude Naphthalene and Refined Naphthalene and the countries for imports are in two sets mentioned hereinabove.
(c) On 01.06.2016, the Respondent No.2 issued Initiation Notification commencing Anti Dumping investigation concerning imports of "Naphthalene in both of its forms" - Crude Naphthalene originating in or exported from China PR, European Union, Russia, Iran, and Japan and Refined Naphthalene originating in or exported from China PR, European Union and Taiwan.
(d) The petitioners have produced at Annexure-D a letter from M/s. Supreme Petro Synth Specialities dated 03.06.2016 addressed to the Designated Authority, relevant extract whereof are required to be set out as under;
"To Mr. A.K.BHALLA Additional Secretary and Designated Authority, Director General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry, Department of Commerce, 4th Floor, Jeevan Tara Building, 5 Parliament Street, New Delhi 110001.
Dear Sir, Page 32 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT We are Bhilai, Chattisgarh based SSI unit producing refined naphthalene. Our raw material is Hot pressed naphthalene. Heavy benzol, Drain Naphthalene oil (D.N.O.) which are the by-product of the Bhilai steel plant (SAIL). We do not support anti dumping duty being imposed on Naphthalene. Now we are withdrawing our name from the Notification. Once again we state that we are not in favor of imposing antidumping duty on naphthalene. Thanking you, Yours faithfully."
(e) The petitioners have made averments and produced a communication by Indian Petro Coal Products, at Page-77, dated 10.06.2016 addressed to the Designated Authority, which deserves to be set as under:
"To GOVT. of India Department of Commerce Directorate of Anti Dumping & Allied Duties, Ministry of Commerce & Industry, 4th Floor, Jeevan Tara Building, 5, Parliament Street, New Delhi.
Sub: Dumping of (i) Crude Naphthalene and
(ii) Refined Naphthalene in India Sir, With reference to our letter Dt.28.03.2016 we are to inform you that we have been Misguided by some party, but now Page 33 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT we are withdrawing our name from the notification.
We are not in favour to impose anit dumping duty on import of Naphthalene...."
(f) The group of importers along with the present petitioners on 21.11.2016 put up their detail comments on the application filed by the respondent no.3. Copy is produced at Annexure-E at page-78. The relevant extract whereof are set out as under:
"Initiation of Investigation is without Jurisdiction:
1. At the very outset, we humbly submit that the current investigation is without jurisdiction, and accordingly, should be terminated immediately on account of the following reasons.
a) It is impermissible to have different sets of "subject countries" for the very same "Product under Consideration".
b) Applicant does not account for major proportion of the total domestic production in terms Rule 5(3) of the Anti-dumping Rules.
c) Applicant is a regular importer of the subject goods from the subject countries and should not be considered as an eligible domestic industry in terms of Rule 2(b) of the Anti-dumping Rules....."
"6. It is further submitted that the subject Page 34 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT countries covered under the investigations are as follows:
SI. Product Subject Countries
No
.
1. Crude China PR, European Union, Russia, Iran, &
Naphthalene Japan
2. Refined China PR, European Union and Taiwan
Naphthalene
8. With respect, it is submitted that the entire initiation is flawed inasmuch as the Rules do not permit investigation against different countries for different forms of the very same product. Kind attention of the authority is invited to Para iii of Annexure II to the Anti-dumping Rules which reads as under:
"(iii) In case where imports of a product from more than one country are being simultaneously subjected to anti-dumping investigation, the designated authority will cumulatively assess the effect of such imports, only when it determines that (a) the margin of dumping established in relation to the imports from each country is more than two per cent expressed as percentage of export price and the volume of the imports from each country is three per cent of the import of like article or where the export of individual countries less than three per cent, the imports collectively accounts for more than seven per cent of the import of like article and (b) cumulative assessment of the effect of imports is appropriate in light of the conditions of Page 35 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT competition between the imported article and the like domestic articles."
10. Further, if the subject countries for the two different forms of the very same Product under Consideration are allowed to be different, then the test of de minimis will also become unworkable. It is for this reason also that the Authority never considers two different sets of countries for two sub-sets of the same PUC as has been done in this case.
11. In view of the aforesaid, it is submitted that the basic requirements of Rule 5 are not met with as even the premise of the cumulated injury assessment has been done in a manner not permitted under the law. We submit that the present investigations ought to be terminated on this ground alone.
"Applicant does not have "Standing" to file the Application
12. Without prejudice to the aforesaid, it is submitted that the applicant in this case does not fulfill the requirements of Rule 5(3). The Designated Authority may kindly appreciate that in terms of Rule 5(3) as well as the consistent practice, the Authority initiates an investigation only if the applicant accounts for a major proportion of the total domestic production. The major proportion is, as a matter of practice, is deemed to have been passed if the applicant accounts for at least 50% of the total production in the country. The Page 36 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT benchmark of 50% plus is considered to be important as any figure less than this amount will necessitate that the Authority examines the support and opposition by other parties prior to initiation itself.
13. In the instant case, in order to satisfy the standing criteria the applicant has enclosed the copy of the support letters from two producers of Crude and Refined Naphthalene i.e. M/s Supreme Petro Synth Specialities and M/s Indian Petro-Coal Products. It is now a matter of record that the applicant had misguided the so called supporters and enclosed the support letters without their consent to file the application for the imposition of anti-dumping duty against imports of Naphthalene. Accordingly, immediately after getting the information public that the Authority initiated the anti- dumping investigation, the so-called supporters immediately filed letters with the Authority stating that they have been misguided by the applicant and they do not favour imposition of anti-dumping duty against imports of Naphthalene. Copies of the letter filed with the Authority are enclosed as Annexure 1 and 2.
15. In addition to the above, we humbly submit that Authority has taken into account only the total production of the applicant for calculating the standing of the applicant for filing the application. However, it is clear that Page 37 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT the production of some of the major producers of Refined Naphthalene has not been taken into consideration while examining the eligibility of the applicant to file the application in terms of Rule 5(3) of the Anti- dumping Rules, 1995. In this context, it is submitted that the applicant has willfully not disclosed the production details of the other major producers of Refined Naphthalene in their application. It is clear that the only purpose of withholding such vital information from the Authority is to mislead the Authority with regard to the standing in terms of Rule 5(3) of the Anti-dumping Rules.
16. We give below the names of the other major producers of Refined Naphthalene who are opposing the application along with their production (MT) details as follows:
SI. Name of the 2013- 2014-15 POI
No. Producers 14 (MT) (MT)
(MT)
1 Bodal Chemicals Ltd *** *** ***
2 Multi Organic Pvt. *** *** ***
Ltd
Total production (Major 11575 6888 1005
producers of Refined 5
Naphthalene)
18. After taking into account the production of all the domestic producers producing the Product under Consideration, the share of the applicant in the total Indian production of Refined Naphthalene is reflected in the Table below.
Page 38 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT SI. Producers POI (MT) Share in total Share in total No actual Indian Production of Production (%) Supporter and Opposition (%) 1 Applicant - Supporter 2666 17.00% 19% 2 Other Producers 3077 19% 3 Indian production (as 5743 per application) 4 Other major producers 10055 64% (not disclosed in application) 5 Total actual Indian 15798 100% Production (3:4) 6 Producers opposing the application 7 Bodal Chemicals Ltd **** ****% 8 Multi Organic Pvt Ltd **** ****% 9 *Supreme Petro Synth 1011 7% Specialities * Indian Petro Coal Products 10 Total Indian 11066 81% Producers opposing the Application (7:9) 11 Total Production of 13732 100% producers supporting or (1 + 10) opposing the application
* Since, the production of the Indian producers opposing the application (81%) is significantly more than the producers supporting the application (19%) the applicant fails to establish the 'standing'.
* The applicant also fails the 25% test being only 17% of the total actual Indian production.
*These are those producers whose support has been taken by misguiding them and who had withdrawn their support by filing letter of opposition to the Authority immediately after getting the information public that the Authority had initiated the anti-dumping investigation.
19. The above table establishes beyond any doubt that:
a. Applicant fails the 50% test: It can be further seen that the applicant accounts for 2,666 MT (19%) of the actual total Indian production (13,732 MT) of those producers Page 39 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT who are either supporting or opposing the application. Since the Applicant clearly accounts for significantly less than 50% of the total Indian production of those producers who are either supporting or opposing the application, it cannot be said to have been filed by or on behalf of the Domestic Industry in terms of Rule 5(3)(a) read with Explanation to the Rule.
b. applicant fails the 25% test also: As can be seen from the table above that the applicant accounts for a meager 2,666 MT (17%) of the total actual Indian production of 15,798 MT. Since the Applicant clearly accounts for less than 25% of the total actual Indian production, it fails the mandatory 25% test in terms of proviso to Rule 5(3)(a) also.
c. In view of the aforesaid, the only consequence that follows is that the Authority should immediately terminate the investigations for the reason of failure to pass the mandatory requirements of Rule 5(3)(a).
Application is a regular importer
6. It is humbly submitted that the initiation of the investigation in this case itself is without jurisdiction as the applicant which has been considered by the Authority as eligible domestic industry has also imported the subject goods from the subject countries. Our claim is based on the information provided by the domestic industry on page 10 of its Page 40 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT application. Details of the imports made by the applicant are provided in the below table for ready reference of the Authority.
Year of Countr Quantit Producti Share of imports y y (MT) on (MT) Imports in Production 2012- 13 Japan 99.76 11358 0.88% 2013-14 Japan 199.72 16421 1.22% 2014-15 China 497.17 17567 2.83% Russia 17567 1.05% 184.597 2015-16 China 1585.02 *19152 8.27% Russia 253.566 *19152 1.32% *Production figure for POI has been used since production details of the year 2015-16 has not been provided by the applicant
7. It is clearly evident from the information provided in the above table that the applicant is an regular and habitual importer and has imported significant quantities of the subject goods i.e., 1,838.5 MT (sum of 1,585.02 and 253.56) during the year 2015-16 from the subject countries which accounts for significant share i.e., 9.47% of the production of the applicant.
8. The interested parties humbly submit that in the case of Vitrified Tiles, the Authority has considered M/s Kajaria Ceramics as ineligible domestic producer on account of the fact that significant imports has been made by them. Copy of the initiation notification is enclosed as Annexure 5. In a recent interview given to CNBC-TV 18, Mr. Ashok Kajaria (CMD) admitted that they themselves make Page 41 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT 98% of their products and rest 2% constitutes the imports. Copy of web page detailing the relevant extracts of the interview of Mr. Ashok Kajaria is enclosed as Annexure 6.
Accordingly, from the above it is clear that in the case of Vitrified Tiles, the Authority has considered even 2% as the significant volumes while considering M/s Kajaria as ineligible domestic producer.
Incorrect & Inappropriate Injury
Investigation Period
10. It is also submitted that the period of injury considered by the applicant for the purpose of injury assessment of Crude Naphthalene is 57 months while the period of injury considered by the domestic producer for the purpose of injury assessment of Refined Naphthalene is in any case cannot be more than 21 months as the applicant commenced the production only in the year 2014-15. Accordingly, due to the significant difference in the period of injury of the two forms of Naphthalene cumulative assessment of the injury of Crude and Refined Naphthalene will lead to absurdity. This again is by itself a sufficient ground for immediate termination of the investigations.
11. Injury period of five years is in violation of Trade Notice 2/2004 dated 12th May, 2004: In addition to the above, it is submitted that the injury period of five years taken by the Authority is in violation of Trade Page 42 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT Notice 2/2004 dated 12th May, 2004 and the consistent practice of the Authority. Kind attention is invited to Trade Notice 2/2004 dated 12th May, 2004 wherein it is categorically mentioned that "Petition should invariably contain information and data relating to the proposed period of investigation (POI) and previous three financial years." Accordingly, it is submitted that considering five years as the period of injury is against the principles laid down by the Authority which needs to be invariably followed in all cases as well as the consistent practice of the Authority.
17. No injury to the so-called domestic Industry: There is no injury to the so-called domestic industry on account of the import from the subject countries as evidenced from the information provided in the table given below considering four years i.e., 2012-13, 2013-14, 2014-15 and POI (Calendar 2015) as the period of injury in terms of principles laid down in Trade Notice 2/2004 dated 12th May, 2004, consistent practice of the Authority and the period of injury proposed by the applicant.
18. Based on the information provided in the above table following preposition emerges:
a) Production increased consistently from 11,358 MT in the year 2012-13 to 19,152 MT in the POI.Page 43 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
b) Domestic sales increased consistently from 6,771 MT in the year 2012-13 to 12,593 MT in the POI.
c) Inventories declined from 330 (Index) in the year 2012-13 to 241 (Index) in the POI.
d) Cost per unit declined from 133 (Index) in the year 2012-13 to 119 (Index) in the POI.
e) Selling price per unit increased from 112 (Index) in the year 2012-13 to 114 (Index) in the POI.
f) Profit per unit declined from negative 1579 (Index) in the year 2012-13 to negative 332 (Index) in the POI.
g) Cash losses of negative 102 (index) turned to significant cash profit of 49 (Index) in the POI.
h) PBIT of negative 129 (Index) turned significantly positive of 64 (Index) in the POI.
i) ROCE of negative 162 (Index) turned significantly positive of 55 (Index) in the POI.
19. Injury information is flawed as it includes self imports - We humbly submits that it is clearly evidenced form the information provided on page no. 37 of the application that the applicant has included the self imports for the calculation of the demand. We also apprehend that the import from the subject countries also includes the imports Page 44 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT made by the applicant. In such case, the injury claimed on the following parameters is flawed..."
(g) The petitioners have produced on record the communication by Supreme Petro-Synth Specialities at page 94, dated 13.06.2016 addressed to the Designated Authority, which deserves to be reproduced as under:
"To Mr. A.K.BHALLA Additional Secretary and Designated Authority, Directorate General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry, Department of Commerce, 4th Floor, Jeevan Tara Building, 5 Parliament Street, New Delhi 110001.
Dear Sir, We are Bhilai, Chattisgarh based SSI unit producing refined naphthalene. Our raw material is Hot pressed naphthalene. Heavy benzol, Drain Naphthalene oil (D.N.O.) which are the by-product of the Bhilai steel plant (SAIL).
We do not support anti dumping duty being imposed on Naphthalene. Now we are withdrawing our name from the Notification.
Once again we state that we are not in favor of imposing antidumping duty on naphthalene. Thanking you, Yours faithfully."
(h) The petitioners have produced on record a Communication received from Indian Petro-Coal Products at Page 45 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT page 95, which also deserves to be reproduced as under:
"To, GOVT. of India Department of commerce Directorate of Anti Dumping & Allied Duties, Ministry of Commerce & Industry, 4th Floor, Jeevan Tara Building, 5, Parliament Street, New Delhi.
Sub.: Dumping of (I) Crude Naphthalene and
(ii) Refined Naphthalene in India Sir, With reference to out letter Dt.28.03.2016 we are to inform you that we have been Misguided by some party, but now we are withdrawing our name from the notification.
We are not in favour to impose anit dumping duty on import of Naphthalene.
We regret for inconvenience.
Thanking you"
(i) The petitioners have also addressed a Communication dated 21.11.2016, at page 96, which deserves to be reproduced as under:
"To Dr. Inderjitsingh, IAS, Additional Secretary & Designated Authority, Directorate of Anti Dumping & Allied Duties, Ministry of Commerce & Industry, 4th Floor, Jeevan Tara Building, Page 46 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT Parliament Street, New Delhi. 110 011.
Dear Sir, Subject: Investigation against imports of Naphthalene from China PR, European Union, Russia, Iran and Japan (for Crude) and from China PR, European Union and Taiwan (for Refined) - Request for termination.
We would like to bring to your kind notice that we are one of the major producers of Refined Napthalene in India. We understand that the Government has initiated Anti Dumping Investigation against imports of Naphthalene from China PR, European Union, Russia, Iran and Japan (for Crude) and from China PR, European Union and Taiwan (for Refined), vide Notification No.14/35/2015- DGAD, dated 01.06.2016.
In the above context, we invite kind attention of the Authority to the fact the petitioner has wrongly claimed in their petition that besides themselves, there are only two other producers of Refined Naphthalene in India i.e. M/s Supreme Industries and M/s Jaya Household products. We further understand that the claim of the petitioner and the decision of the authority with regard to their 'standing' is based on the assertion of the petitioner. It is apparent that neither the petitioner nor the Hon'ble Authority has considered our production data while calculating the total production in India for the Page 47 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT purpose of determining the standing of the petitioner.
We submit our production details for the year April, 2013 to March, 2014, April, 2014 to March 2015 and POI (1st January, 2015 to 31st December, 2015).
Particulars Unit 2013-14 2014-15 Jan 2015 - Dec 2015
Production MT ---- ---- ----
Consumption MT ---- ---- ----
We submit that we are not related to any exporter or producer of the said product in the subject countries. It is also clarified that we are also not related to any importer of the subject goods.
The Authority may kindly note that we as a significant domestic producer of the subject goods in India, oppose the present petition for imposition of Anti Dumping duties as it is not in the overall interest of the domestic producers or the user industry. We are of considered view that in absence of proper support from the relevant domestic producers (in fact, there is explicit opposition), this investigation is illegal and without authority of law in terms of the Rules. In view thereof, we humbly request the Authority to terminate the investigation at the earliest.....
(emphasis supplied)
(j) The contention is taken on behalf of the petitioners Page 48 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT that the Designated Authority usually considered the domestic industry if they are also importing the same material or they have relationship with importer and exporter on the subject goods.
(k) The petitioners have produced at page 103 relevant documents which purported to have been Annual Report of Financial Year 2015 for respondent no.3 at page 102 and 103 in which it is claimed that 'The Company strategically imports raw materials based on prevalent global, economical and demand-supply dynamics, thereby optimizing costs.'
(l) The petitioners have produced on record at Page 104 the Written Submissions on Public Hearing Dated 10.02.2017, relevant extracts whereof are set out as under:
"Exclusion of the Domestic Producers with captive production is bad I law and inconsistent with Articles 3 and 4 of ADA
25. It was mentioned by the representative of the Domestic Industry that the production meant for captive consumption cannot be included for the purpose of deciding the "standing" of the applicant to file the application. In this context, we would like to draw the kind attention of the Hon'be Authority to the provisions of Rule 5 which are excerpted as under:
"5(3) The designated authority Page 49 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT shall not initiate an investigation pursuant to an application made under sub-rule (1) unless -
(a) It determines, on the basis of an examination of the degree of 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 twenty five percent of the total production of the like article by the domestic industry, and."
(b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding--
(i) dumping,
(ii) injury, where applicable; and
(iii) Where applicable, a casual
link between such dumped imports
and the alleged injury, to justify the initiation of an investigation.
Explanation - For the purpose of this rule the application shall be deemed to have been made by or on behalf of Page 50 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like articles produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application."
(m) The petitioners have produced on record, Rejoinder dated 20.04.2017 at Page 169 to the Written Submission relevant extract therefrom are set out as under:
Flawed determination of the "Product under Consideration" and Sub-categorization of "Subject Countries" for single "Product under Consideration"
8. At the very outset, it is submitted that the contention of the applicant industry that there is a single "Product under Consideration" is vehemently denied. It may be seen that the applicant industry has merely made statements without making out a case as to why the two forms of Naphtalene should be considered as a single product. In this context, it is submitted that the applicant industry has not answered any of the issues that had been raised by us in our letter dated 21.11.2016 and subsequent reminders dated 26.12.2017 and 27.12.2017. Briefly, the issues which Page 51 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT remain unanswered till date are :
(i) Cumulation permitted only if the imports of the subject goods in question are from the same sources.
(ii) If the subject countries for the two different forms of the very same Product under Consideration are allowed to be different, then the test of de-minimis will also become unworkable. It is for this reason also that the Authority never considers two different sets of countries for two sub-sets of the same PUC as has been done in this case.
(iii) Crude Naphthalene and Refined Naphthalene are not only classifiable under different Chapter headings but are classified under two entirely different Chapters of the Customs classification. These two are, therefore, clearly two different products not amenable to anti- dumping investigation together.
(iv) Subject countries are
different for C and R which can
happen only if the two are
considered to be separate products.
(v) Crude Naphthalene and Refined Naphthalene are produced by different industries, a fact which Page 52 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT has been admitted by the application industry in the application as well as in the written submissions.
(vi) Plant & Machinery are different for Crude Naphthalene and Refined Naphthalene so are the properties, technical specifications and end-uses. Para 7 and para 8 of applicant's written submissions admit that the production and processing process of Crude Naphthalene and Refined Naphthalene are different.
(vii) The entire concept of "subject goods" is based in the context of subject countries. It is consistent stand of the Designated Authority that the subject goods or the PUC is not the product as such but only those products which are imported from the countries under investigation. Therefore, it follows that for a single PUC, the subject countries also have to be the same.
(viii) The submission of the applicant in para 11 regarding the product under consideration being a single product is self-contradictory and absurd. It is beyond comprehension that if the product under consideration is indeed one, Page 53 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT then how one part of the alleged injury to the applicants could be attributed to one set of countries and the other part to another set of countries."
(n) The petitioners have produced at Page 181, Annexure-'I' i.e. Affidavit of concerned officer of M/s. Supreme Petro Synth. Specialities, indicating that the industry has not supported the proposal. The type copy of the same is produced at Page 182.
(o) The Affidavit-in-Reply is filed on behalf of Respondent No.3, which is at page 182. The requisite averments therefrom deserves to be set out as under:
".....I submit that the Initiation Notification dated 1.6.2016 was issued by the Respondent no.2 at New Delhi. The Answering Respondent has its Registered Office as well as Manufacturing unit in the State of West Bengal. The Initiation Notification does not either create or negate any right in favour of the Petitioners or impose any duty or cause any prejudice that gives rise to cause of action within the State of Gujarat. It is submitted that the averments made in Paragraph no.4 of the subject Petition do not give any basis for the territorial jurisdiction being available in the State of Gujarat. I submit that an anticipatory event cannot give cause of action to the Petitioners. I further submit Page 54 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT that there is neither any restriction on Petitioners' freedom or trade, nor any unauthorised imposition of tax nor is the petitioners' right to any property jeopardized by the Initiation Notification.
B) I submit that present Petition is premature and filed with the oblique motive of stalling a statutory investigation under the provisions of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995 (hereinafter referred to as 'the said Rules'). I submit that an Initiation of investigation does not accord any right or benefit to the Respondent no.3, who was the applicant before the Respondent no.2. Such notification is merely the commencement of the process to inquire into the factual position so as to enable the Respondent no.2 to gather essential facts for the purpose to ultimately deciding whether or not impose definitive measures. ....... ....
C) I submit that the subject Petition suffers from the vice of delay, latches and acquiescence. It is submitted that the Initiation Notification was issued on 1.6.2016 pursuant to an application dated 17.12.2015. It is thus apparent that the respondent no.2 has considered all aspects and applied its mind before initiating the investigation. The petitioner no.1 has Page 55 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT participated in the investigation by filing responses/submissions and attended hearing. I submit that having participated in the proceedings by raising objections, it was incumbent on the petitioner to have waited for the outcome. It is further submitted that the subject petition is filed after 1 year 1 months and 15 days of the issuance of Initiation Notification at the fag-
end of investigation. Such delay in inexcusable and has not been explained in the subject petition. I submit, at the cost of repetition, that the issuance of Disclosure Statement would have no bearing on the rights of the petitioners and the same is nothing but presentation of essential facts and not any findings on the basis of such facts. Accordingly, the subject petition does not deserve to be entertained on account of gross, unexplained delay, latches and acquiescence.
9. The contents of paragraph no.1.5 are denied. It is denied that the Initiation Notification is vague, unclear or ambiguous, as alleged or at all, though it is true that the same is like a show cause notice and does not give rise to any cause of action. The application for Initiation of investigation filed by the Answering Respondent was for Naphthalene in both its form from the subject countries. Thus, the product under consideration is Naphthalene in both its Page 56 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT form and separating the subject countries on type-wise imports of product does not vitiate the proceedings. It is now well settled that "a mere wrong description of the source of power - a mere wrong label - cannot invalidate the action of an authority, if it is otherwise within its power" as held in Titagarh Paper Mills Ltd., Vs. Orissa SEB, (1975) 2 SCC 436, Para.9).
Relevant para are reproduced below :
"9. when an authority takes an action which is within its competence, it cannot be held to be invalid, merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any other provision. A mere wrong description of the source of power - a mere wrong label -
cannot invalidate the action of an authority, if it is otherwise within its power...."
(p) The Respondent No.2 has filed affidavit-in-Reply, at Page 319, relevant extracts therefrom deserves to be set out as under;
4. Before dealing with the petition paragraph wise, following preliminary contention would demonstrate that the petitioner is not entitled to any discretionary relief and the present petition deserves to be dismissed on the following Page 57 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT grounds;
A. That present petition as titled Under Article 226 of the Constitution of India challenging the Notification No.14/35/2016
- DGAD dated 01.06.2016 is not maintainable and deserves to be dismissed as the same is neither arbitrary nor is contrary to any of the provisions of existing law nor is without jurisdiction.
B. The present petition is not maintainable and deserves to be dismissed as the petitioner is having effective, efficacious alternative remedy provided under Section 9C of the Customs Tariff Act, 1975. The petitioner if at all aggrieved with impugned notification, can prefer an appeal against the notification of Central Government in Anti-Dumping matters lies before CESTAT the appellant tribunal as provided under the Act. Therefore, the present petition is not maintainable and the same deserves to be dismissed on the ground of alternative remedy alone.
C. The Hon'ble Supreme Court of India in
case of Nivedita Sharma Vs. Celluar
Operators Association of India and others, (2011) 14 SCC 337, has been pleased to noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Page 58 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT Hon'ble Court further noticed the previous decision of the Hon'ble Supreme Courts wherein the Hon'ble Court adverted to the rule of self-restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person as follows :
13. In Tataghur Paper Mills Co.
Ltd., Vs. State of Orissa this Court observed : (SCC pp. 440-41, Para 11) "11. ... It 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. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. Vs. Hawkesford in the following passage : (ER p. 495) ...There are three classes of cases in which a liability may be established founded upon a statute .... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ...The remedy provided by the statute must be pursue the course applicable to cases of the second class. The form given by the statute Page 59 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville Vs. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago Vs. Gordon Grant and Co.
Ltd., and Secy. Of State Vs. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High court was therefore, justified in dismissing the writ petitions in limine."
14. In Mafatlal Industries Ltd., Vs. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed : (SCC p.607, para 77).
"77. ... So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative Page 60 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute under challenge.
16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal Vs. Supt. of Taxes and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a Page 61 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT mechanism for redressal of grievance still holds the field."
D. The Hon'ble Apex Court recently in case of Union of India Versus Shri Kant Sharma, reported in 2015 (0) AIJEL-SC 56294 (2015 (6) SCC 773) has been pleased to consider the said judgment of Nivedita Sharma along with the other such judgments and has been pleased to observe as under :-
34. The aforesaid decisions rendered by this Court can be summarised as follows :
(i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India. (Refer: L. Chandra and S.N.Mukherjee).
(ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of Page 62 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer : Mafat Industries Ltd.).
(iii) When a statutory forum is
created by law for redressal of
grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer : Nivedita Sharma).
(iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievances. (Refer : Nivedita Sharma).
That in view of the afore referred settled principle of law, the present petition deserves to be dismissed on the ground of alternative remedy alone as the petitioner is having effective, efficacious alternative remedy to prefer an appeal U/s. Section 9C of the Customs Tariff Act, 1975.
K. I further submit that the contention of the petitioners that the Respondent No.1 has wrongly initiate the investigation since the two Page 63 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT supporting parties have withdrawn support is baseless. The Applicant submits that at the time of filing of application before Designated Authority applicant was having standing more than 50% individually and above 50% with the supporters. Thus, the applicant had a major proportion and satisfied the standing criteria in terms of Rule 5, even in the absence of any support to the application. It is also relevant to note that the product under consideration is one, i.e., "Naphthalene in both its forms". Thus the standing is required to be seen with reference to the product under consideration only in respect of both its forms or product types separately.
L. I further submit that the standing of the application is required to be determined under Rule 5 prior to initiation. Once the Designated Authority has validly determined standing and initiated the investigations, the petition recedes in the background and Rule 6 comes in play. Under Rule 6 and thereafter from Rule 7 to Rule 17, the Designated Authority is not required to re-determine the standing of the application. The Designated Authority is required to merely re-determine the standing of the application. The Designated Authority is required to merely re-determine the scope of the domestic industry at the next stage of the investigations if necessitated. The petitioner is therefore required to establish before the Designated Authority or this Court relevance Page 64 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT and importance of subsequent opposition to the application by a party who had validly and admittedly supported the petition prior to initiation.
N. Without prejudice to the preliminary objections, I submit that the present Petition raises several highly disputed questions of fact, inter alia, pertaining to support to the investigation. In respect of the issues so raised before the Respondent No.2, the Domestic Industry has filed its affidavit stating that the letters of support were in fact duly received by it. The Respondent No.2 is seized of the matter and would have to decide whether or not the explanation given by the Domestic Industry merits acceptance. In such scenario, there is no justification for the Petitioners to seek to scuttle such a process of enquiry and seek the determination these disputed issues by this Hon'ble Court under Article 226 of the Constitution of India.
5.(ii)......The applicant submits that at the time of filing of application before Designated Authority applicant was having requisite standing individually and even if support to the petition is ignored. Thus, the domestic industry is having a major proportion and individually satisfied the standing criteria in terms of Rule 5, even in the absence of any supporter. It is also relevant to note that the product under consideration is one, i.e., "Naphthalene in both its forms". Thus the Page 65 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT standing is required to be seen with reference to the like article to the product under consideration only and not in respect of both the forms separately."
(q) The Rejoinders are filed on behalf of the petitioners at Page 334 and 343 in respect of reply of Respondent No.1 and Respondent No.3 respectively.
19. Against the aforesaid factual backdrop, the rival contentions of the learned counsels for the parties are required to be examined in light of the relevant provisions of law touching upon the aspect of this matter. Therefore, the same also deserves to be set out as under for the sake of convenience and ready reference:
Section 9A. Anti-dumping duty on dumped articles - (1) Where any article is exported by an exporter or producer from any country or territory (hereafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article.
Explanation.-For the purposes of this section,-
(a) margin of dumping in relation to an article, means the difference between its Page 66 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT export price and its normal value;
(b) export price, in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6);
c. normal value, in relation to an article, means-
[i] the comparable price, in the ordinary course of trade, for the like article when [destined for consumption] in the exporting country or territory as determined in accordance with the rules made under sub- section (6); or [ii] when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales Page 67 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either-
(a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub- section (6); or
(b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under subsection(6):
Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transshipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin.
[1A] Where the Central Government, on such inquiry as it may consider necessary, is of the opinion that circumvention of anti- dumping duty imposed under sub-section [1] Page 68 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT has taken place, either by altering the description or name or composition of the article subject to such anti-dumping duty or by import of such article in an unassembled or disassembled form or by changing the country of its origin or export or in any other manner, whereby the anti-dumping duty so imposed is rendered ineffective, it may extend the anti-dumping duty to such article or an article originating in or exported from such country, as the case may be.] [2] The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined,-
(a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and
(b) refund shall be made of so much of the antidumping duty which has been collected as is in excess of the anti-dumping duty as so reduced.Page 69 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
[2A] Notwithstanding anything contained in subsection (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under subsection (2),, shall not apply to articles imported by a hundred per cent, export- oriented undertaking unless,-
[i] Specifically made applicable in such notification or such impositions, as the case may be; or [ii] the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India.
Explanation. - For the purpose of this sub- section, the expression hindered per cent export-oriented undertaking shall have the meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944).
(3) if the Central Government, in respect of the dumped article under inquiry, is of the opinion that-
(i) there is a history of dumping which caused injury or that the importer was, or Page 70 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT should have been, aware that the exported practices dumping and that such dumping would causer injury; and
(ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti- dumping duty liable to be levied, the Central government may, by notification, in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub- section, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification.
(4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force.
(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition:
Provided that if the Central Government, in Page 71 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension.
Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti- dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.
(6) The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified and for the manner in which the export price and the normal value of and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-
dumping duty.
Page 72 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT(6A) The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under sub-section (6) shall be determined on the basis of records concerning normal value and export price maintained, and information provided, by such exporter or producer :
Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.] (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament.
(8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act."
2. Definitions.- In these rules, unless the context otherwise requires-
(b) "domestic industry" means the domestic producers as a whole engaged in the Page 73 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case 1 such producers may be deemed not to form part of domestic industry.
Provided that in exceptional circumstances referred to in sub-rule (3) of Rule 11, the domestic industry in relation to the article in question shall be deemed to comprise two or more competitive markets and the producers within each of such market a separate industry, if -
(i) the producers within such a market sell all or almost all of their production of the article in question in that market; and
(ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory;
Explanation. - For the purposes of this clause,-
(I) producers shall be deemed to be related to exporters or importers only if,-
(a) one of them directly or indirectly controls the other; or
(b) both of them are directly or indirectly controlled by a third person; or Page 74 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
(c) together they directly or indirectly control a third person subject to the condition that are grounds for believing or suspecting that the effect of the relationship is such as to cause the producers to behave differently from non-related producers.
(ii) a producer shall be deemed to control another producer when the former is legally or operationally in a position to exercise restraint or direction over the latter.
Rule 5 - Initiation of investigation. -
(3) The designated authority shall not initiate an investigation pursuant to an application made under sub-rule (1) unless -
(a) it determines, on the basis of an examination of the degree of 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 twenty five per cent of the total production of the like article by the domestic industry, and
(b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding -
(i) dumping, Page 75 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT
(ii) injury, where applicable; and
(iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation.
Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application.
Rule - 14:- Termination of investigation. - The designated authority shall, by issue of a public notice, terminate an investigation immediately if -
(a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated;
(b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify the continuation of the investigation;
(c) it determines that the margin of dumping is less than two per cent of the export price;
(d) it determines that the volume of the dumped imports, actual or potential, from a particular country accounts for less than three per cent of the imports of the like product, unless, the countries which individually account for less than three per cent of the Page 76 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT imports of the like product, collectively account for more than seven per cent of the import of the like product; or
(e) it determines that the injury where applicable, is negligible."
20. The petitioners have essentially challenged the Notification dated 01.06.2016, whereunder the respondent no.2 at the behest of respondent no.3 initiated investigation in respect of product called Naphthalene in both its forms namely Crude and Refined Naphthalene being imported from the countries mentioned in the Notification. The respondent no.3 did not fulfill the requisite criterion for being characterized the domestic industries so as to be eligible to seek initiation of investigation in respect of product in question.
21. The petitioners have also contended in support of their contention that the respondent no.3 was not only fulfilling the criterion of eligible domestic industry, as defined under Rule 2(b), but it has also not supported its application on account of the provision of Rule 5(3) of the Rules and the petitioners have laid elaborate material in support of this submission.
22. As against this, the respondent no.3 has contended that the investigation ordered by respondent no.2 vide Notification dated 01.06.2016 does not either create or negate any right of the petitioners or similarly situated industries nor does the same impose any duty so as to cause any prejudice to them. The purported action does not have any ensuing effect in the State of Gujarat and therefore, this Page 77 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT High Court have no jurisdiction on account of the cause of action not being available in the State of Gujarat.
23. The respondent no.3 has further contended that the petitioners are also liable to answer their belated approaching the Court betraying their ill-design and intention to scuttle the investigation and by some time for thwarting the ultimate. This practice and approach may not be countenanced by this Court under Article 226 of the Constitution of India. The respondent no.3 has submitted that the product under consideration is Naphthalene in both its form separating the subject countries on type-wise imports of product would not vitiate the proceedings; and it was contended that a mere wrong description of the source of power, a mere wrong label, cannot invalidate the action of the authority, if it is otherwise within the power of the authority. The respondents have relied upon the decision of the Supreme Court in case of Titagarh Paper Mills Ltd. Vs. Orissa SEB, reported in (1975) 2 SCC 46.
24. The respondent no.2 - Designated Authority, has filed detail Affidavit, extracts whereof is reproduced hereinabove, interalia contending that the petition filed by the petitioners under Article 226 is not maintainable. It was further argued on behalf of the respondent no.2 that the petitioners have effective efficacious alternative remedy under Section 9-C of the Customs Tariff Act, 1975. The appeal would lie to the CESTAT. The reliance is placed upon the decision of Supreme Court in case of Nivedita Sharma Vs. Cellular Operators Association of India and Ors., reported in (2011) 14 SCC 337, and submit that when statutory forum is Page 78 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT created by law for redressal of grievances, a writ petition should not be entertained permitting the petitioners to bypass the same. In support of this submission, the reliance is placed upon the decision of Titagarh Paper Mills Ltd. (supra) and Union of India Vs. Shri Kant Sharma, reported in 2015 (6) SCC 773.
25. The respondent no.2 has further submitted that the contentions raised by petitioner before the respondent no.2 including with respect to its jurisdiction and the status of domestic industries are yet to be decided. The respondent no.2 was yet to issue the Disclosure Statement under Rule 16 of the said Rules, which would contain essential facts for the interested parties to offer their comments and thereafter final finding under Rule 17. In view of this, it was pleaded that there is no bias whatsoever to the petitioners and other similarly situated persons.
26. The respondent no.2 has further submitted that the petitioners have approached the Court belatedly, as the Initiation Notification was issued on 01.06.2016 pursuant to an application of the respondent no.3 dated 17.12.2015. The petitioners have participated in the investigation by filing the questionnaire response in capacity of an importer/user. The subject petition is filed after 11 months of the issuance of Initiation Notification at the fag-end of investigation. The delay has not been explained by the petitioners.
27. The rival contentions of the parties are to be viewed in the backdrop of the fact that the present petition is Page 79 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT filed only against the notification of 01.06.2016, whereunder the concerned respondent has initiated the initiation of anti dumping investigation and concerning imports of crude and refine naphthalene and the authority has recorded its prima facie satisfaction qua requirement of initiation. This Court is called upon to examine that aspect on the basis of the grounds mentioned in the memo of the petition. Two important grounds urged on behalf of the petitioners are that the respondent no.3 does not classified to be a domestic industry on account of various reasons especially with the fact that they have alleged to have themselves being importer of the goods in question. This has sought to be countered by the respondent no.3 by indicating that the respondent no.3 is not a regular importer so as to oust the same from the purview of being domestic industry and the counting etc. of the percentage for classifying to be a domestic industry being subject matter of investigation, initiation itself cannot be subject matter of challenge under Article 226 of the Constitution of India. The respondent nos.1 and 2 have also contended that the initiation is not subject matter of any scrutiny as the same is based upon the satisfaction of the authority and there is availability of appeal under Section 9-C of the Customs Tariff Act, 1975.
28. The counsel for the petitioners has indicated elaborately that so called supporter of the respondent no.3 have said to have withdrawn their support and therefore on that count also the initiation itself goes into the root of the matter.
Page 80 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT29. This Court is of the view that the domestic industry for classifying to be a domestic industry has to fulfill the requirement of Rule 2(b) of the Rules and has also to satisfy requirement of Rule 5(3) for seeking initiation. It cannot be disputed that the two supporters who have been named as supporters by the respondent no.3 had subsequently withdrawn their support, but a fine question which is arising for consideration is whether the mere initiation of the investigation can be said to be in any manner prejudicial to the petitioner. If the same is not prejudicial to the petitioner, then the same cannot be interfered with under Article 226 of the Constitution of India.
30. The Court is of the view that the contention qua availability of the appeal for ousting the jurisdiction raised on behalf of the respondents may not be available in a given case and especially in this case also as the provision of 9-C of the Act if read closely would indicate that the same is available against the determination only and not against the investigation. But the Court need not loose sight of the fact that mere initiation can be said to be a prejudicial in a given facts of case where the petitioner also participated initially and put-up its elaborate submissions and when the respondents have clearly contended before this Court with due emphasis that the petitioner's participation has to be viewed appropriately, as the petitioner did put up his submission, the same also is required to be considered for its appropriate light and prospective.
Page 81 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT31. The Court is of the view that the petition is filed when challenging the only initiation and when the authority has not concluded, as could be seen from the notification impugned before this Court, the Court would be slow in interfering therewith, as it would rather require embarking upon further probing which may not be appropriate at this stage under the provisions of Article 226 of the Constitution of India.
32. The Court is also of the view that the Court's power under Article 226 are not curtail on account of the existence of remedy of notice, even if one exists. However, the fine principles of law laid down time and again by the Apex Court and reiterated in many judgments needs to be borne in mind while examining the challenge to merely initiation. The Court is of the view that had there been a jurisdictional deficiency going into the root of the initiation, perhaps the matter would have require to be examined differently, but in the instant case the perusal of notification impugned when clearly indicate that the authority has considered the facts which were required to be taken into consideration, the sub-abrasion in the form of withdrawal of submission of those supporters in itself would not be an omission warranting interference by the Court under Article 226 of the Constitution of India.
33. This Court is of the considered view that for the aforesaid reasons especially when the notification impugned is not in any manner causing any prejudice to the petitioners, as the petitioners has not pleaded any special prejudice, the Court need not interfere therewith. It goes without saying that Page 82 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020 C/SCA/13485/2017 CAV JUDGMENT the detail observations made hereinabove are only for the purpose of examining the challenge to the notification and the same shall have no bearing upon investigation, if any.
34. As a result thereof, petition fails and is hereby dismissed.
(S.R.BRAHMBHATT, J.) (A.G.URAIZEE, J.) Pankaj Page 83 of 83 Downloaded on : Fri Feb 21 01:56:32 IST 2020