Gujarat High Court
M/S Jindal Saw Limited Through ... vs Ministry Of Finance on 5 April, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/6896/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6896 of 2019
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M/S JINDAL SAW LIMITED THROUGH AUTHORISED REPS
SUBRAMANIAM THANGARAJAN
Versus
MINISTRY OF FINANCE
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Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE WITH HARSHADRAY A
DAVE(3461) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V. B. MAYANI
Date : 05/04/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned counsel appearing for the petitioner.
2. The petitioner, by way of this petition, has assailed the final finding dated 01/04/2019 in Sunset Review on anti dumping investigation concerning imports of "Ductile Iron Pipes" originating in or exported from China PR on the grounds mentioned in the memo of petition.
3. The learned counsel appearing for the petitioner invited Court's attention to the peculiar facts preceding the rendering of final finding in which it was indicated that the domestic industry had to in fact approach this Court for appropriate relief as the authorities at the relevant point of time had declined initiation of Sunset Review examining the Page 1 of 6 C/SCA/6896/2019 ORDER requirement as to whether the anti dumping duty which was in force, amongst the product enforced since 14/09/2007 which was extended on 10/10/2013 and which thus expired on completion of five years i.e. 10/10/2018. The said petition came to be registered as Special Civil Application No.12368 of 2018 in which this Court has, vide order dated 26/09/2018, recorded, inter alia, as under:
"11. Examination of the impugned order in the background of these significant mandate as required under the Rules would suggest the absence of following factors:
· Nothing is evident to suggest that the designated authority called for information by supplying such copy of the application to known exporters or to the concerned trade associations, foreign producers, calling for information factors on which the allegations of injury were made by the Review Applicants.
· Nothing is evident to suggest that there was any determination of normal value, export price and margin of dumping and its assessment in accordance with the principles laid out in Annexure I of the Rules;
· Similarly, whether the determination of injury was done in accordance with the principles laid out in Annexure II is also not discernible from the reading of the impugned order; · Extensive material in terms of annexures was placed before the designated authority to make out a case for a review and continuance of the anti-dumping duty, in accordance with the Rules, particularly Rules 6, 7, 10 & 11. That these Rules applied even in carrying out a review is clear from sub-rule(3) of Rule 23. · The Order only records the submissions of the applicant without disclosing whether the data has been called for from exporting countries. A casual finding refusing to initiate sunset review investigation is recorded by stating that the applicant has failed to provide sufficient and satisfactory evidence in support of its prayer to initiate sunset review investigation.
· The order therefore fails the test of having considered the application, as required under the mandate of the Section i.e. Section 9A(5) read with the Rules thereunder.
12. Accordingly, impugned order dated 17.05.2018 is set aside, as the same is without reasons. The respondent authority shall decide the application requesting a sunset review afresh, in accordance with law, within six months from the date of receipt of this order. Till such a decision is taken, the period of anti-dumping duty, which ceases to have effect on and from 9/10/2018, shall stand extended. Petition is allowed accordingly. Rule is made absolute. Direct service is permitted."
Thus, the Court categorically directed the authorities while quashing the order, of the respondent authority declining Sunset Review, dated 17/05/2018 to decide the Page 2 of 6 C/SCA/6896/2019 ORDER Sunset Review application afresh and extend anti dumping duty which was ending on and from 09/10/2018, till such decision is taken, in view of the provisions of Section 9(A)(5) and proviso thereunder. As during the pendency of Sunset Review and investigation thereupon, the anti dumping duty may continue to be levied, however, not beyond the total period of six years and as the request for Sunset Review was made well within the time and as the time for extension pending the decision on Sunset Review was available, the Court deemed it fit to order extension of the anti dumping duty also.
4. Learned counsel has also submitted that the said direction unfortunately was required to be enforced by an additional order of this Court which was require to be made on miscellaneous application being Misc. Civil Application No.1 of 2018 in proceedings of Special Civil Application No.12368 of 2018 in which the Court had to make the observations in para-6 and para-7 which are reproduced as under:
"6. In view of the above, it is expected of the Ministry of Finance, Government of India to take follow-up action immediately as directed and if the order dated 26.09.2018 passed by Special Civil Application No. 12368 of 2018 is not complied with and notification in this regard is not issued from concerned officer in-charge will be held responsible for non-compliance of the order issued by this Court which may include proceedings under the Contempt of Courts Act also.
7. The prayers in paragraph no. 6(a) and (b) of the application which read as under are granted accordingly:
6) In view of the above facts and circumstances, the Applicant most respectfully prays that this Hon'ble Court may be pleased to:-
a) Direct Respondent or concerned Ministry in his absence to comply with Order dated 26.09.2018 passed in Special Civil Application No. 12368 of 2018 by initiating sunset review well before 09.10.2018; and
b) Direct Respondent or the concerned Ministry to comply with Order dated 26.09.2018 passed in Special Civil Application No. 12368 of 2018 by Page 3 of 6 C/SCA/6896/2019 ORDER requesting Ministry of Finance for extending duties under Notification No. 23/2013-Customs (ADD) dated 10.10.2013 well before 09.10.2018; and"
5. The authorities ultimately extended the anti dumping duty for the period of six months on 09/10/2018 which would inure till 09/04/2019 and disclosure statement was issued and the comments were invited.
6. Learned counsel urged the Court to compare between the earlier final finding where anti dumping duty continuation was recommended which is produced at page nos.307, 335, 336 with final finding at page no.67 and submitted that as such there is a clear indication of lack of application of mind to the relevant provision and the requirement for effective correct assessment especially in view of the fact that the finality of anti dumping commodities in question is enormous looking to the facts produced on record.
7. Learned counsel also invited Court's attention to the observations of the Delhi High Court judgment in case of Forech India Ltd. vs. The Designated Authority and others delivered on 31/05/2018 to indicate that the question of petitioner approaching the alternative remedy of appeal under Section 9(C) also would not arise inasmuch as the same cannot be said to be so efficacious as to grant of any relief so far as the continuation of the anti dumping duty is concerned. As per Delhi High Court, the interruption of levying of anti dumping duty even in the available and permissible period of one year would not be permitted and the hiatus created on account of disruption of duty even in the period of one year cannot be ignored for resuming the levying of duty.
Page 4 of 6 C/SCA/6896/2019 ORDER8. The Tribunal would at the best examine the final finding, however, it is a question as to whether the Central Government which is the authority for extending the anti dumping duty notification at least for further period of six months would be so amenable to do so?.
9. We have heard the learned counsel for the parties and we are of the prima facie view that what has been submitted for assailing the order appears to be of substance for holding that there is a prima facie case and so far as balance of convenience is concerned for issuing any interim order, we must record here that the entire investigation period and even prior thereto there was no import these commodities in question as recorded. Meaning thereby, one can safely conclude that there is no one interested at present in importing the commodity in question, else there would have been at least some resistance or submission on their behalf to the designated authority.
10. At the same time the anti dumping duty in case if not extended for the suitable period, then the same would render the petition infructuous and the entire challenge to the final finding which is, prima facie, appears to be substantive in nature would be rendered without any avail to the petitioner. In view of this, Notice returnable on 08/04/2019. In addition of normal mode of service, service by way of approved electronic method is also permitted.
11. By way of ad interim relief, the following directions are issued:
Page 5 of 6 C/SCA/6896/2019 ORDER1) The final finding impugned in this proceeding may not be acted upon till the next date of hearing.
2) The extension of anti dumping duty ordered under the notification dated 09/10/2018 be further extended by respondent-Union of India for appropriate period, not less then one month from 09/04/2019.
12. As this order is passed ex parte, it would be open for the other side to approach the Court for vacation and/or modification of the order.
Direct service today is permitted.
(S.R.BRAHMBHATT, J) (V. B. MAYANI, J) ila Page 6 of 6