Punjab-Haryana High Court
M/S Rational Business Corporation Pvt. ... vs Union Of India & Others on 14 January, 2011
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Ajay Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No.649 of 2011
Date of decision: 14.1.2011
M/s Rational Business Corporation Pvt. Ltd.
-----Petitioner.
Vs.
Union of India & others.
-----Respondents.
CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
Present:- Mr. Jagmohan Bansal, Advocate
for the petitioner.
---
ADARSH KUMAR GOEL, J.
1. This petition seeks quashing of preliminary findings recorded by the designated authority under the provisions of the Customs Tariff Act, 1975 (for short, "the Act") read with Customs (Identification, Assessment and Collections of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for short, "the Rules") recommending imposition of provisional anti-dumping duty on imports of PVC Flex Films and other related products into India and consequential customs notification No.79/2010 dated 30.7.2010, Annexure P-4, imposing provisional Anti Dumping Duty. Direction has also been sought for fixing anti- dumping duty on the basis of reference price.
C.W.P. No.649 of 2011 2
2. Case of the petitioner is that it is an Indian Company engaged in the business of import of PVC Flex Films for sale in India. Respondent No.4 is engaged in the production by using domestic and imported raw material. Vide notice dated 1.2.2010, anti-dumping investigations concerning import of PVC Flex Films originating in or exported from China PR were initiated on the basis of application of respondent No.4. Response was sought from all concerned and thereafter, preliminary findings were recorded by the designated authority vide notification dated 22.6.2010, Annexure P-2, followed by corrigendum dated 7.7.2010, Annexure P-3. Thereafter, impugned notification dated 30.7.2010, Annexure P-4 was issued by the Central Government under Section 9A(2) of the Act read with Rule 13 of the Rules. The said notification was followed by corrigendum dated 19.10.2010, Annexure P-5. The petitioner gave a reminder dated 18.11.2010, Annexure P-6, to the designated authority seeking levy of anti-dumping duty based on reference price. Finding no response, this petition has been filed.
3. We have heard learned counsel for the petitioner.
4. Contentions raised on behalf of the petitioner are:-
i) Investigation under Rule 5(1) of the Rules can be initiated at the instance of domestic industry, as defined under Rule 2(b). Respondent No.4 was not covered by the said definition and thus, on the application of respondent No.4, investigation could not C.W.P. No.649 of 2011 3 be initiated to determine the requirement of anti-
dumping duty. Reliance has been placed on
judgment of Andhra Pradesh High Court in
Vuppalamritha Magnetic Components Ltd. v.
Union of India 2010 (256) ELT 487.
ii) Basis of anti-dumping duty could be only margin of dumping, as determined under Rule 11 of the Rules on the basis of price in domestic market and the price at which the goods were exported which having not been properly determined, the levy was illegal.
5. Admittedly, remedy of appeal is available to the petitioner under Section 96 of the Act before the Tribunal against levy of provisional duty under Section 9A(2) of the Act read with Rule 13 of the Rules. The provisional duty is only operative till normal value and margin of dumping is determined and is based on provisional estimate of value and margin. As per impugned notification, Annexure P-4, the levy of provisional duty is effective only upto 29.1.2011. The impugned notification, Annexure P-4, is based on preliminary findings recorded by the designated authority that goods were exported to India from the said country below the normal value, resulting in material injury to the domestic industry. No doubt in an appropriate case, the matter may be gone into in writ jurisdiction irrespective of alternative remedy if there was patent error. In the present case, the C.W.P. No.649 of 2011 4 findings are based on evidence collected after following due procedure. It was noted that the responses from Chinese exporters were deficient, which required further investigation. The designated authority made a comparison between the export price at normal value and also noticed that imports from China were increasing, resulting in retarding of domestic industry. In view of the said findings, the impugned notification levying anti- dumping duty, cannot be held to be perverse or arbitrary so as to call for interference by this Court, at this stage, ignoring the alternative statutory remedies available to the petitioner.
6. Accordingly, the writ petition is dismissed. It is made clear that observations made hereinabove are only to consider whether alternative remedy should be treated as a bar to interfere at this stage and will not be treated as expression of final opinion on merits. This order will not affect the statutory remedy of appeal in accordance with law.
(ADARSH KUMAR GOEL)
JUDGE
January 14, 2011 ( AJAY KUMAR MITTAL )
ashwani JUDGE