Gujarat High Court
Nirma Limited vs Union Of India & 6 on 13 December, 2016
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/16426/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16426 of 2016
With
SPECIAL CIVIL APPLICATION NO. 16427 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 16429 of 2016
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NIRMA LIMITED....Petitioner(s)
Versus
UNION OF INDIA & 6....Respondent(s)
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Appearance:
Special Civil Applications No.16426/2016 & 16427/2016
MR MIHIR JOSHI, MR MIHIR THAKORE and MR SN SOPARKAR, SENIOR
ADVOCATES with MS REENA KHAIR, MR RAJESH SHARMA and MR
GAURAV S MATHUR, ADVOCATE for the Petitioner(s) No. 1
MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL with MR NIRZAR S
DESAI, ADVOCATE for the Respondent(s) No.1 2
MR PRAMOD RAI, ADVOCATE with MR VISHAL SEVAK, ADVOCATE for
the Respondent(s) No.3
MR JITENDRA SINGH, ADVOCATE with MR PARITOSH R GUPTA,
ADVOCATE for the Respondent(s) No.4
MR SITHARAMAN, ADVOCATE with MR ANAND NAINAWATI for the
Respondent(s) No.5
MR VIKRAM NANKANI, SR. ADVOCATE with MR HARDIK P MODH and
MR AMIT LADDHA, ADVOCATES for the Respondent No.7
NOTICE SERVED BY DS for the Respondent(s) No. 6
Special Civil Applications No.16428/2016 & 16429/2016
MR SN SOPARKAR, SR. ADVOCATE with MS REENA KHAIR,MR RAJESH
SHARMA and MR KUNTAL PARIKH, ADVOCATE for the Petitioner
MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL with MR NIRZAR S
DESAI, ADVOCATE for the Respondent(s) No.1 2
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C/SCA/16426/2016 ORDER
MR PRAMOD RAI, ADVOCATE with MR VISHAL SEVAK, ADVOCATE for
the Respondent(s) No.3
MR SITHARAMAN, ADVOCATE with MR ANAND NAINAWATI for the
Respondent(s) No.4
MR JITENDRA SINGH, ADVOCATE with MR PARITOSH R GUPTA,
ADVOCATE for the Respondent(s) No.5
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 13/12/2016
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Having regard to the peculiar facts of the case, it would be necessary to refer to the backdrop in which the present order is being passed.
2. On 26.09.2016, a Coordinate Bench of this court while issuing notice and granting ad-interim relief, passed the following order:
"1. Heard learned counsels appearing for the petitioners.
2. As, in this group of four petitions there is a common challenge to the Disclosure Statements dated 14.09.2016 under Rule 16 of the 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 for the sake of brevity), inviting the domestic industries to reflect upon and make their submissions on the mid-term review of dumping duty existing on the product called Soda Ash since 03.07.2012 and 18.04.2013, came to be imposed under Section 9A of the Customs Tariff Act, hence, they were heard together and this order is passed after hearing the counsels on the aspects of challenge to the said Disclosure Statements.Page 2 of 38
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3. Learned counsels for the petitioners invited Court's attention to the provision of Section 9(A), 9(B) and the facts of the matter to indicate that the Anti-Dumping duty imposed and being levied from 03.07.2012 is ordinarily to enure for a period of five years, which would end on
03.07.2017. However, as provided under Rule 23 of the Rules, the provision of review of any Anti-Dumping duty imposed under Section 9(A) is provided on the parameters mentioned therein, which includes the exercise to be undertaken by the designated authority for arriving at a conclusion for making final recommendations to the Government. The period for investigation is ordinarily one year, but extendable by Union of India in a given case.
4. In the instant case, it was submitted that the notice for initiating of investigation under Rule 23 of the Rules was issued on 21.07.2015 and 01.10.2015, and ultimately the Rule 16 Disclosure of information came to be provided only on 14.09.2016, which runs into more than 50 pages and it was pointed out that essentially three factors, which were required to be considered and information whereon was required to be disclosed to the interested party, were not disclosed, as it is evident from close perusal of the paragraphs in the report. A disclosed statement in which against many columns the information, which is otherwise available with the designated authority, is withheld from being disclosed to the petitioners, which would render the petitioners' reflection and reply under the submission handicapped and this is said to be not a correct exercise providing sufficient opportunity to the interested parties to reflect upon the disclosure facts in terms of the Rules specially Rule 16 of the Rules.
5. The second limb of submission being canvassed on behalf of the petitioners is that the authority i.e. respondent no.2, not taking into consideration the factors which are relevant for forming even prima facie opinion qua reviewing of existing Anti-Dumping duty.
6. The counsels invited Court's attention to the paragraphs of the Disclosure Statements and contended that those paragraphs can well be said to be rather disclosure of the final conclusion leaving no further room for any consideration of the material that may be placed by the interested party, as the Rule 16 statement is essentially an Page 3 of 38 HC-NIC Page 3 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER opportunity to all the concerned to receive facts and reflect thereupon. The said truncated disclosure, so to say, would actually be violative of principles of natural justice also and the exercise undertaken, under Rule 23 of the Rules, being quasi judicial in nature. The principles of natural justice observance is sine qua non for validly undertaken exercise. In the instant case, the Disclosure Statement contains conclusion and it does not adverted to the aspects of injury and when the statement contains a positive findings qua the price under cutting and that increased in dumping activities, then the paragraphs characterized to be final conclusion, would reveal lack of proper appreciation of even the facts, which were otherwise available to the authorities.
7. In that view of the matter, it was urged that let the authorities may not at least render its final findings, and it be directed to afford sufficient opportunity with all the requisite material to the petitioners, or else the petitioners and other interested parties will be subjected to a decision and a finding in which there will be clear breach of principles of natural justice.
8. We are of the considered view that prima facie the submissions made on behalf of the petitioners appears to be correct, as the essential aspects on the threat of injury to the domestic industries is conspicuously absent in its advertence, as could be seen from the Statements of Disclosure in question.
9. The counsels for the petitioners also are prima facie correct in submitting that the respondent no.2 could not have rendered its finding in the fact disclosure statement itself, as could be seen from paragraph nos.59, 60 and 61 at Page nos.316, 317.
10. The said findings do not indicate anywhere that it is merely a tentative or it is likely to be changed, as development of the facts and instances and the time limit given for filing submission would be indicative of the fact that there is substance in the submission of the counsels that there is a lack of time and material for effectively put forth the case of the petitioners before the authority, which would be also one facet of the principles of natural justice so far as the final findings are required to be rendered by the authority.
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11. The counsels for the petitioners also contended that, as could be seen from the factors to be taken into consideration under Annexure II, Item No.(vii) of the Rules, which have in fact been reproduced in paragraph as 'T', which read as under;
a. a significant rate of increase of dumped imports into India indicating the likelihood of substantially increased importation.
b. Sufficient freely disposable or an imminent, substantial increase in capacity of the exporter indicating the likelihood of substantially increased dumped exports to Indian market, taking into account the availability of other export markets to absorb any additional exports.
c. Whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely to increase demand for further imports and, d. Inventories of the article being investigated.
But they have not been adverted to after taken into consideration the fact that even the authorities on findings during the period of investigation indicate that there exists dumping, despite the duty being levied. Therefore, the authorities ought to have adverted to these facts in light of the submissions of the petitioners and should have recorded the material, if any, in respect of the Items at a, b, c and d.
12. For the aforesaid reasons, we are of the view that as there is still some time left for the authorities to record its final finding and as authority is under obligation to record its finding after following principles of natural justice, as could be seen from the decisions cited at the bar, which are set out as under;
(i) in case of Meghani Organics Ltd. Vs. Union of India, reported in 2011 (267) E.L.T. 440 (Guj.).
(ii) in case of Sandisk International Ltd. Vs. Designated Authority, reported in 2015 (322) E.L.T. 846 (Del.).
(iii) in case of Designated Authority, Ministry of Page 5 of 38 HC-NIC Page 5 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER Commerce And Industry And Another Vs. Indian Metals & Ferro Alloys Limited, reported in (2009) 2 Supreme Court Cases 510.
The authorities be permitted to go on with the inquiry and petitioners may also shall place on record with the authorities their submissions, but the final findings may not be rendered without there being sufficient opportunity and supply of material legitimately admissible to the petitioners, as the Disclosure Statements, as on date, clearly indicates that there are vital information, which has gone into consideration by the authorities without they being available to the petitioners, as many columns have been containing asterisk marks, and figures have been withheld from the interested parties.
13. In that view of the matter, let there be Notice returnable on 17.10.2016.
14. In the meantime and till the returnable date, the respondent no.2 is restrained from rendering the final finding on the mid-term review undertaken pursuant to the notice dated 21.07.2015. It would be open to the respondents to proceed with the inquiry and investigation and also open to the petitioners to place on record to the authorities their submissions so as to avoid any unnecessary wastage of time, but final findings or any subsequent decision may not render till the next date of hearing.
15. This order is passed ex parte, therefore, it goes without saying that it would be open to the other side to approach the Court even prior to the returnable date for vacation and/or modification of the order.
Direct service permitted.
Office is directed to place copy of this order in each matter."
3. On 17.10.2016, the Bench passed the following order:
"Learned counsel Shri Desai appearing for respondent no.1 and on behalf of Mr. Vyas, learned advocate, submits that if these matters are kept on 15.11.2016, the Page 6 of 38 HC-NIC Page 6 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER appropriate reply to be placed on record.
At this stage, Shri Soparkar, learned counsel, submitted that in fact despite there being an interim order, the authorities have passed final order and therefore, draft amendment is required to be moved which has been moved and the same is granted so that the respondents may have copies of the draft amendment and they file reply dealing with the contentions of the draft amendment.
Shri Pramode Rai, learned counsel submitted that he has received instructions in these matters to represent All India Glass Manufactures Federation (AIGMF) at whose behest the proceedings had started with the competent authority and unfortunately the said party is not joined in these proceedings. Hence, as an intervenor, an application is moved being Civil Application No.10514 of 2016, the same be heard alongwith these matters.
Draft amendment is granted. The same shall be carried out. The draft amendment copy also be passed on to Shri Parmod Rai, learned advocate, without prejudice to the rights and contentions of the petitioners.
The request for adjournment is accepted, as no one has objected. Put up on 15.11.2016.
Ad-interim relief granted earlier shall continue till then."
4. On 15.11.2016, applications came to be made by some of the respondents seeking to be impleaded as parties in the main petitions, which came to be allowed by an order of even date, whereafter, on the same day, the following order came to be made in the captioned petitions:
"1. Mr.Nirzar Desai, learned Standing Counsel for respondents No.1 and 2, states that he would be filing an affidavit-in-reply on behalf of the Designated Authority during the course of the day.
2. Mr.S.N.Soparkar, learned Senior Advocate, with Mr.Gaurav Mathur, learned advocate for the petitioner in Page 7 of 38 HC-NIC Page 7 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER each of the petitions, submits that the matters may be kept in the next week to enable the petitioner to deal with the affidavit-in-reply filed on behalf of respondent No.2.
3. The learned advocates for the newly joined parties have objected to the extension of the interim relief. However, considering the fact that Court is inclined to hear the matters on the next date of hearing, such objection is not entertained at this stage.
4. Stand over to 30.11.2016. The parties are expected to complete all their pleadings by then. Ad-interim relief granted earlier to continue till then."
5. On 26.11.2016, the petitioners moved applications being Civil Applications No.11929 of 2016 and No.11930 of 2016 in Special Civil Applications No.16426 and 16427 of 2016 respectively, praying that the respondent No.1 be restrained from acting upon the final findings dated 23.09.2016 and issuing notification under rule 18 of the 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") in pursuance of the final findings dated 23.09.2016 issued in respect of Mid Term Review of Anti-Dumping Duty imposed on imports of Soda Ash from Peoples' Republic of China, European Union, Kenya, Pakistan, Iran, Ukraine, USA.
6. After hearing the learned counsel for the respective parties, the Ministry of Finance, Department of Revenue, Government of India, New Delhi was permitted to be joined as respondent No.3 in the said applications and it was observed thus:
"Having regard to the fact that this court, by the order Page 8 of 38 HC-NIC Page 8 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER dated 26.09.2016, had ordered that the final findings or any subsequent decisions may not be rendered till the next date of hearing, and such interim relief has been extended from time to time till 30.11.2016, it is, therefore, clear that it is not permissible for the respondent Union of India, through any of its Departments to proceed further pursuant to the final findings issued by the designated authority. Under the circumstances, the respondents, including the newly added respondent, are restrained from acting further pursuant to the final findings issued by the designated authority till 30.11.2016."
7. On 26.11.2016, draft amendments made by the petitioners in Special Civil Applications No.16426 and 16427 of 2016 seeking permission to join the Ministry of Finance, Department of Revenue, Government of India, New Delhi, which came to be allowed and the petitioners therein were permitted to join the said respondent as respondent No.6 in the petitions. Fresh notice was issued to the newly added party respondent, returnable on 30th November, 2016.
8. On 30th November, 2016, the matters came to be adjourned at the request of the learned counsel for the respective parties to 07.12.2016, on which date, the matters were taken up for hearing whereupon, Mr. Vikram Nankani, Senior Advocate, learned counsel with Mr. Hardik Modh and Mr. Amit Laddha, learned advocates for the respondent No.7 in Special Civil Application No.16426 of 2016 raised a preliminary objection to the very maintainability of the petition and hence, the parties were heard on the aspect of maintainability. Upon hearing the learned counsel, it appeared that in effect and substance, what the respondent wanted to contend was that having regard to the facts and circumstances of the case and the statutory scheme governing the anti-dumping duty, the Page 9 of 38 HC-NIC Page 9 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER petition should not be entertained and hence, the court proceeded to hear the learned counsel for the petitioner on the merits of the main case in view of the fact that vide order dated 15.11.2016, it was observed that the matters were to be heard on the next date of hearing and the parties were also directed to complete their pleadings by then. The hearing spilled over to 08.12.2016 and the matter was taken up for hearing at the commencement of the first session. After the learned counsel for the petitioners had argued for the entire session, at the end of the session, Mr. Nankani, learned counsel for the respondent No.7 submitted that the pleadings are not yet complete and that the matter may only be heard on the question of maintainability, admission and interim relief. It was submitted that the respondent No.7 had been joined only on 29.11.2016 and has not had the opportunity to file a counter and that considering the detailed submissions made by the learned counsel for the petitioners, a detailed reply would be necessary. Therefore, while the court was ready to hear and decide the matters finally and the learned counsel for the petitioners had also, accordingly, made detailed submissions, the learned counsel for the respondents have shown unwillingness to proceed with the final hearing of the matters and on the contrary, a request was made by Mr. Nankani for fixing the matter for hearing on the question of interim relief on 27.12.2016. In view of the objection raised by the learned counsel for the respondent No.7 to the hearing of the matter finally, the court despite having heard the learned counsel for the petitioners at a considerable length, restricted the hearing to the question of maintainability, admission of the petitions and interim relief.
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9. Mr. Devang Vyas, learned Assistant Solicitor General, submitted that the designated authority has notified the final findings which are recommendatory in nature. The Central Government may or may not accept the same. In case the Central government accepts the same, it would be required to issue a notification under sub-section (1) of section 9A of the Customs Tariff Act, 1975 (hereinafter referred to as "the Tariff Act"), revoking the earlier notification dated 03.07.2012 whereby, the anti-dumping duty came to be imposed on soda ash. It was submitted that against the order passed by the Central Government under section 9A of the Tariff Act, an appeal lies to the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the CESTAT") under section 9C of the Tariff Act. That as on date, the proceedings are at a stage where recommendations by the designated authority have been made to the Central Government. If accepted, the petitioners have a remedy by way of an appeal under section 9A of the Tariff Act. Reference was made to the decision of the Supreme Court in Saurashtra Chemicals Ltd. v. Union of India, (2009) 17 SCC 529, wherein the court has held thus:
"We see no reason whatsoever to entertain these special leave petitions. It is perfectly clear now that we have seen the provisions of the Act that the order of the designated authority is purely recommendatory. The appeal that lies is against the determination and that determination has to be made by the Central Government. For this reason, we decline to exercise jurisdiction under Article 136 of the Constitution of India and dismiss the special leave petition."
9.1 Reliance was also made upon the decision of the Supreme Court in the case of Tata Chemicals Ltd. (2) v.
Page 11 of 38HC-NIC Page 11 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER Union of India, (2008) 17 SCC 180, to submit that having regard to the provisions of rules 17 and 18 read with section 9C of the Tariff Act, the petition is not maintainable as there is no decision of the Central Government accepting the determination. It was, accordingly, urged that the petitions deserve to be dismissed at the threshold on the ground of being not maintainable.
10. Mr. Vikram Nankani, learned counsel for the respondent No.7 in Special Civil Application No.16426 of 2016, submitted that the petition was filed at the stage of disclosure statement made under rule 16 of the rules. The petitioner has simultaneously participated as a member of the Alkali Manufacturers Association of India which raised objections which were duly considered by the designated authority. It was contended that the petitions which were filed at the stage of disclosure statement have been rendered infructuous in view of the subsequent events which have occurred. Now, the challenge is to the final findings, which are merely recommendatory in nature, and in case the same are accepted by the Central Government, the appeal would lie to the CESTAT under section 9C of the Act.
10.1 Reference was made to the decision of the Supreme Court in the case of Association of Synthetic Fibre Industry v. J. K. Industries Ltd., (2005) 11 SCC 482, to submit that there should be no interruption or disruption so far as the operation of the provisions of the Customs Tariff Act, 1975 relating to anti-dumping duty and the rules framed in that regard are concerned. It was submitted that the final findings have been issued on 23.09.2016; under rule 18 of the Page 12 of 38 HC-NIC Page 12 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER rules, limited time of three months is available to the Government to issue notification, therefore, at this stage, no interference is required at the hands of this court. It was submitted that in terms of rule 18 of the rules, the last date for issuance of notification by the Central Government is on or about 23.12.2016 and hence, the interim relief granted earlier deserves to be vacated and the Central Government should be permitted to apply its mind to the final findings of the designated authority and take a decision thereon.
10.2 The learned counsel drew that attention of the court to the fact that the Alkali Manufacturers Association had filed a writ petition before the Delhi High Court and had withdrawn the same upon issuance of the final findings. It was submitted during the pendency of the petition before the Delhi High Court, the present petition came to be filed on or about 20.09.2016 and upon interim relief being granted on 26.09.2016, the petition before the Delhi High Court was withdrawn on 27.09.2016, with liberty to challenge the final findings and notification to be issued. It was submitted that the petitioner, as a member of the association, in view of the issuance of final findings, did not deem it fit to pursue the petition filed against the final disclosure before the Delhi High Court and now seeks to do the same before this court, which may not be permitted. It was further contended that since the petitioner has come against the final findings in respect of which a notification is yet to be issued by the Central Government, the petition is not maintainable also on the ground of being premature.
10.3 The learned counsel placed reliance upon the decision of Page 13 of 38 HC-NIC Page 13 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER the Supreme Court in the case of Nitco Tiles Ltd. v. Gujarat Ceramic Floor Tiles Mfg. Association, (2005) 12 SCC 454, and more particularly, paragraphs 3 and 4 thereof, to submit that in view of the provisions of section 9C of the Tariff Act, whereby the appeal lies to the Tribunal, this court ought not to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. It was submitted that while it is true that there is no remedy against a final disclosure, however, in exercise of powers under article 226 of the Constitution of India, the High Court will not pre-empt the Central Government from exercising powers under the Act and the rules. It was submitted that the final findings are mere recommendations which may or may not be accepted. The Central Government is vested with powers under rule 18 of the rules to accept or not to accept such recommendations. It was submitted that when final findings are subject to approval of the Central Government, it is that power of the Central Government which is sought to be taken away and the entire machinery under the rules is sought to be frustrated. It was submitted that the power of the Central Government is discretionary, plenary and not restricted under rule 18 of the rules. It is, therefore, open to the petitioners to make a representation to the Central Government pointing out all the relevant aspects. However, if the petition is entertained, the whole exercise under rule 18 of the rules would be frustrated. Therefore, a judicial review of a recommendation stands on a different footing than the final notification and that judicial review should not scuttle the proceedings at this premature stage.
11. Mr. Mihir Joshi, Senior Advocate, learned counsel for the petitioners submitted that against a disclosure statement, Page 14 of 38 HC-NIC Page 14 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER there is no provision for appeal and similar is the case with final findings. Therefore, at present, against the final findings, the petitioner does not have any remedy by way of appeal and the only remedy is by way of a writ petition under Article 226 of the Constitution of India and therefore, the contention of there being an alternative remedy is without any basis. Reference was made to the decision of the Supreme Court in the case of Saurashtra Chemicals Ltd. v. Union of India (supra) on which reliance had been placed by the learned Assistant Solicitor General, to point out that the question before the Supreme Court in the said case was as to whether an appeal was maintainable before the CEGAT against the final findings. It was submitted that similarly, in Tata Chemicals Ltd. (2) v. Union of India (supra), the dispute was regarding maintainability of appeal before the CEGAT and not a writ petition before the High Court. Hence, neither of the decisions would have any applicability to the facts of the present case.
11.1 Insofar as the contention that the final findings of the designated authority are recommendatory in nature is concerned, it was submitted that there is no bar under article 226 of the Constitution from challenging any procedure undertaken by the designated authority. Moreover, it is an admitted position that against the disclosure statement or the final findings, there is no alternative remedy available to the petitioners. As regards the decision of the Supreme Court in the case of Association of Synthetic Fibre Industry v. J. K. Industries Ltd. (supra), it was submitted that the said decision, in fact, assists the case of the petitioners insofar as the maintainability of the petitions is concerned. In the context of the writ petition filed before the Delhi High Court, the Page 15 of 38 HC-NIC Page 15 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER attention of the court was invited to the averments made in paragraph-19 of the memorandum of petition wherein, it has been averred that the petitioner is also a member of the Alkali Manufacturers' Association of India and it is possible that the said Association or any other member may, without any intimation to the petitioner, prefer proceedings before this court or any other High Court. It was submitted that in this background, the withdrawal of the petition before the Delhi High Court may not be taken into consideration. It was submitted that moreover, the order of the Delhi High Court does not say that the petition was withdrawn with a view to prefer an appeal before the CESTAT. It was, accordingly, submitted that the only course of redressal available to the petitioners is by way of the present writ petitions.
11.2 As regards why the High Court should exercise powers under article 226 of the Constitution of India, it was submitted that the designated authority is an officer of the Central Government and that designated authority and the Central Government are one and the same. The Central Government is not an appellate body over the designated authority and that the role of the Central Government is legislative and there is no mandate for making a reasoned order for the purpose of imposing anti-dumping duty or revoking an order of imposition of anti-dumping duty. It was submitted that the petitioner is seriously prejudiced by the findings recorded by the designated authority, inasmuch as, the final findings are the culmination of an adjudicatory process. The designated authority which is a quasi-judicial authority, has to come to a definite conclusion and against such order of the quasi-judicial authority, it cannot be said that an aggrieved party has no Page 16 of 38 HC-NIC Page 16 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER recourse. It was submitted that from the scheme of the Act and the rules, it is apparent that if the final findings are negative, the Central Government has no discretion. Therefore, the absence of jurisdictional facts of dumping, disables a notification of anti-dumping. It was submitted that the Central Government has discretionary powers to levy duty up to the dumping margin and that for the purpose of levy of anti- dumping duty, two factors are required to be satisfied, viz., (i) existence of dumping; and (ii) existence of injury; whereas in the midterm review, the onus is on the applicant to establish that there is no need to levy anti-dumping duty. It was submitted that if in the midterm review, the findings of the designated authority are to the effect that there is no dumping and there is no injury, it is no different from a no-injury at the first stage of imposition of anti-dumping duty. In such case, there is no discretion with the Central Government inasmuch as if the final findings are to the effect that there is no injury, the Central Government cannot decide otherwise. It was submitted that the contention that the Central Government has the discretion not to accept the final findings is an eye- wash when they say that irrespective of finding that there is no jurisdictional fact to levy duty, the Central Government can still continue with the imposition of anti-dumping duty. It was submitted that once the final findings are recorded by the designated authority, the situation is fiat accompli insofar as the domestic industry is concerned. It was, therefore, imperative for the statutory authority to follow the provisions of law. It was submitted that the petition cannot be said to be premature as in this case, the Central Government has no option but to remove the anti-dumping duty. It was submitted that presently the situation is such that despite levy of anti-
Page 17 of 38HC-NIC Page 17 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER dumping duty, the designated authority has found that there is dumping, therefore, in case the anti-dumping duty is lifted, there is possibility of immense threat to the domestic industry as there is all likelihood that the immediate result would be that huge quantities of Soda Ash would be flooded in the Indian market at prices lower than the normal prices. It was submitted that another aspect of the matter is that if the final findings go unchallenged, the petitioners' case for continuation at the end of the period is irretrievably gone as the designated authority has found that the injury margin has gone. It was submitted that in these circumstances, given the final findings recorded by the designated authority, the notification has to follow, and even otherwise, the final findings would come in the way of the petitioner when it seeks extension of imposition of anti- dumping duty.
11.3 Adverting to the merits of the case, it was pointed out that the notification of levy of anti-dumping duty is dated 03.07.2012, which is for a period of five years. The midterm review notification is dated 21.07.2015. The period prescribed under rule 17 for issuance of final findings by the designated authority is twelve months, which is extendable by six months in terms of the proviso to clause (a) of sub-rule (1) of rule 17 of the rules. It was submitted that the public hearing was held on 02.03.2016 and the designated authority sought extension of time on 27.06.2016 and by an order dated 15.07.2016, the Central Government extended the time for a period of two months, that is, till 30.09.2016. It was submitted that the disclosure statement was issued on 14.09.2016 and the final findings were to be issued on or before 30.09.2016, leaving a very little time for the parties to be afforded a reasonable Page 18 of 38 HC-NIC Page 18 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER opportunity of hearing.
11.4 It was submitted that the disclosure statement is required to crystallise the points in issue and what the designated proposes to decide on. Therefore, after crystallising the points, the parties are required to be afforded a reasonable opportunity of hearing on those points. In this case, the disclosure statement was issued on 14.09.2016, the designated authority was left with fifteen days' time to call for objections, hearing, etc. and render the final findings. It was submitted that the petitioners sought time, which was not granted and hence, they had submitted their response to the disclosure statement, whereafter, the final findings came to be issued which are verbatim the same as the disclosure statement. It was submitted that it was always permissible for the Central Government to extend the time for issuance of final findings by a period of six months and hence, the extension of two months leaving a period of only sixteen days for consideration of the response to the disclosure statement is highly unreasonable and amounts to violation of the principles of natural justice.
11.5 The learned counsel further drew the attention of the court to the provisions of rule 14 of the rules and more particularly, to clause (b) thereof, which provides that if the anti-dumping authority is satisfied in the course of an investigation that there is no sufficient evidence of dumping or, where applicable, injury to justify the continuation of the investigation, and it shall, by issuance of a public notice, terminate an investigation. It was submitted that similarly, under clause (e) thereof, in case where the designated Page 19 of 38 HC-NIC Page 19 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER authority comes to the conclusion that the injury is negligible, he can terminate the investigation. It was submitted that, therefore, when a finding of no injury is recorded by the designated authority, the Central Government has no discretion in the matter.
11.6 The attention of the court was invited to the provisions of rule 23 of the anti-dumping rules, which provide for review and more particularly, to clause (1B) thereof, to submit that under the said sub-rule, the petitioners' right to extension is integrated with review. It was submitted that the final findings seriously prejudice the petitioners' right to seek extension and that if the final findings are erroneous, they can take away such right of the petitioners.
11.7 On the merits of the final findings, it was argued that the entire exercise carried out by the designated authority is without taking into consideration that the domestic injury was operating under a protected regime and that he was dealing with a healthy growth in a protected regime. It was submitted that there is no application of mind that determination is for the period of protective regime. It was submitted that the anti- dumping duty can be levied only up to the dumping margin and that the margin of dumping is the cap. Referring to the findings recorded by the designated authority in paragraph-72 of the disclosure statement, it was pointed out that the authority has found that during the POI as well as post-POI, the price undercutting effect of dumped imports is positive in respect of all the subject countries individually except Pakistan. Referring to paragraph-53, it was pointed out that even in the protected regime, the designated authority has found that the Page 20 of 38 HC-NIC Page 20 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER volume has gone up and will continue to go up. It was pointed out that the designated authority has found that the price underselling was non-injurious and that for the purpose of giving fair price for the domestic industries, due procedure has to be followed. The attention of the court was invited to the relevant rules to submit that there is no proper determination in accordance with law. According to the learned counsel, in such a situation, the relevant facts that are required to be examined are as to whether the relevant statutory factors were taken into consideration, whereas the conclusions arrive at by the designated authority underline the absence of application of mind to the parameters of review. It was argued that the final findings are bad on the count of lack of adequate time or opportunity to the petitioner to deal with the disclosure statement. Moreover, the disclosure statement is completely conclusive and absolutely pre-determinative and completely contrary to procedure under rule 16 and 17 of the rules; the relevant statutory provisions are not even adverted to; and that the petitioners have not been provided adequate opportunity under the guise of confidentiality. It was accordingly urged that in these circumstances, the disclosure statement as well as the final findings are amenable to judicial review.
11.8 On the question of extension of the interim relief granted earlier, the learned counsel for the petitioners submitted that if the interim relief is vacated and the Central Government is permitted to proceed further and publish a notification as contemplated under rule 18 of the rules, the consequence would be that a huge stocks of Soda Ash would be imported and pushed into the domestic market at less than Page 21 of 38 HC-NIC Page 21 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER normal prices, thereby seriously prejudicing the rights of the petitioners. It was submitted that this would result in an irreversible situation which would be impossible of restitution and that the interim relief is required to be continued to protect the rights of the petitioners.
12. On the other hand, Mr. Devang Vyas, learned Assistant Solicitor General, submitted that the final findings have already been submitted by the designated authority and that the Central Government may or may not accept the same. Continuation of the interim relief would hamper the operation of rule 18 of the rules. Today, there is no decision of the Central Government on the final findings and that if the Central Government ultimately does not accept the recommendation, it may result in a futile exercise. It was submitted that the interim relief may, therefore, be suitably modified in terms of the decision of the Supreme Court in the case of Association of Synthetic Fibre Industry v. J. K. Industries Ltd. (supra).
13. Mr. Sitaraman, learned advocate with Mr. Anand Nainavati, learned advocate for the respondent No.5 submitted that the private respondents are domestic manufacturers of detergents and that they have to pay the anti-dumping duty on the soda ash purchased by them. That the cost of soda ash is increasing and that the designated authority has recorded with final findings which are in favour of the domestic consumers of soda ash. It was submitted that the balance between the users and the producers is also required to be maintained and their interests should also be taken into account. It was submitted that the Government is the best Page 22 of 38 HC-NIC Page 22 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER arbiter of interests of both the parties and hence, the decision as to whether or not to implement final findings should be left to the Government.
14. Mr. Pramod Rai, learned advocate with Mr. Vishal Sevak for the respondent No.3 submitted that the balance of convenience lies in favour of the respondents, inasmuch as, in view of the interim relief passed by this court, the Government would not be in a position to issue a notification under rule 18 of the rules accepting the recommendations made by the designated authority as a result whereof, in the absence of any notification revoking the anti-dumping duty, the private respondents would have to continue to pay the anti-dumping duty and that even if they ultimately succeed in the petitions, they would not be entitled to claim the benefit of refund of the duty paid. It was, accordingly, urged that the balance of convenience therefore, lies in favour of the respondents and the interim relief granted earlier deserves to be vacated. Mr. Jitendra Singh, learned advocate with Mr. Paritosh Gupta, learned advocate for the respondent No.4 advanced similar submissions as recorded hereinabove.
15. In the aforesaid backdrop, the first question that arises for consideration is as to whether these writ petitions under article 226 of the Constitution of India are maintainable. In this regard, on behalf of the respondents, it has been submitted that the final findings are only recommendatory in nature and that it is only if the same are accepted by the Central Government, that a notification of revocation of the anti- dumping duty would be issued, and that against such notification issued under rule 18 of the rules, an appeal lies to Page 23 of 38 HC-NIC Page 23 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER the CESTAT under section 9C of the Tariff Act and hence, the petition is not maintainable as there is an efficacious statutory remedy available against any order that may be passed by the Central Government on the final findings. It has also been contended that the final findings being recommendatory in nature, the petition is premature. However, the learned counsel for the respondents have accepted that against the disclosure statement and the final findings, there is no statutory alternative remedy available to the petitioners.
16. From the submissions advanced by the learned counsel for the petitioners, it can be seen that the disclosure statement has, inter alia, been challenged on the ground that the conclusions recorded therein are final and not tentative, which is in contravention of the principles of natural justice and amounts to arbitrary exercise of powers. The final findings have been assailed, inter alia, on the ground of breach of principles of natural justice for the reason that - (i) the period of sixteen days between the issuance of the disclosure statement and the time limit for publication of final findings was not sufficient for the parties to be afforded a reasonable opportunity of hearing; (ii) the designated authority placed reliance upon material and facts for concluding the issue against the petitioners which did not form part of the disclosure statement; (iii) while an element of confidentiality is permitted, however, the same cannot be transgressed beyond a certain limit whereby, it amounts to infringement of the principles of natural justice. The final findings have also been assailed on the ground that the designated authority failed to examine all parameters of threat of injury leading to a flawed investigation and resulting in a flawed determination; there is Page 24 of 38 HC-NIC Page 24 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER absence of consideration of mandatory relevant legal provisions and facts germane to the issue; the designated authority has failed to appreciate that the object of mid-term review is not to inquire whether the need for imposition of anti- dumping duty exists but to determine whether the absence of its continuance would lead to injury to the domestic industry.
17. This court in Alembic Ltd. v. Union of India, 2013 (291) ELT 327 (Guj.), has held that the combined effect of the statutory provisions contained in the rules leads to the conclusion that the designated authority under rule 3 of the rules acts for and on behalf of the Government while carrying out the investigation to determine the existence, degree and effect of the alleged dumping. In that view of the matter, the findings of the designated authority with respect to such issues may not be open to question by the Central Government. In the opinion of this court, when if it is not open to the Central Government to question the final findings recorded by the designated authority, the remedy suggested by the learned counsel for the respondents that the petitioners may make representations to the Central Government is illusory. Besides, as noted hereinabove, the petitioners have challenged the final findings inter alia on the ground that the same are in breach of the principles of natural justice. It is settled legal position as held by the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1, that under article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Page 25 of 38 HC-NIC Page 25 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been violation of the principles of natural justice or where the proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the present case, apart from the fact that there is no effective or efficacious remedy against the disclosure statement or the final findings, the petitioners have alleged that there is a breach of the principles of natural justice. Therefore, in the absence of any alternative remedy being available the question of operation of the bar of alternative remedy would not arise. Even otherwise, in the light of the contentions regarding breach of principles of natural justice, the petition even otherwise is maintainable. The contention that the petition is not maintainable, therefore, does not merit acceptance and is, accordingly, rejected.
18. As regards the decisions on which reliance has been placed on behalf of the respondents to contend that the petitions are not maintainable, this court is of the view that none of the said decisions in any manner support the case of the respondents. On the contrary the Supreme Court in Association of Synthetic Fibre Industry v. J. K. Industries Ltd. (supra) has categorically held thus:
"8. Though we are confident that the High Court would certainly conclude the hearing before it as expeditiously as it can and would pronounce its judgment, yet we do not find any justification for sustaining the interim orders dated 25-1-2005 and 16-2-2005 passed by the High Court.Page 26 of 38
HC-NIC Page 26 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER The same are directed to be vacated. The designated authority may submit its final findings to the Central Government and the same shall also be available for being published by way of notification. The Central Government may take its own decision on such findings in accordance with law. Needless to say, all these steps including the imposition of anti-dumping duty, in the event of the Central Government forming an opinion to do so, would be subject to the result of the writ petition pending in the High Court and the High Court does have power to grant an interim relief at any stage of the proceedings subject to a case in that regard being made out. That is what the law is. The decision of the Central Government in the matter of anti-dumping duty is appealable and also subject to writ jurisdiction on well-settled parameters of constitutional law."
Thus, the Supreme Court, in the facts of the said case, while vacating the interim relief, has held that the in the event of the Central Government forming an opinion to do so, all steps including the imposition of anti-dumping duty would be subject to the result of the petition pending before the High Court and that the High Court has the power to grant interim relief at any stage of the proceedings subject to a case in that regard being made out.
19. In Saurashtra Chemicals Ltd. v. Union of India (supra) as well as Tata Chemicals Ltd. (2) v. Union of India (supra), the issue involved was as regards the maintainability of an appeal before the CESTAT against the final findings of the disciplinary authority and not as regards the maintainability of a petition under Article 226 of the Constitution of India. The said decisions also, therefore, do not in any manner support the case of the respondents.
20. The decision of the Supreme Court in Nitco Tiles Ltd. V. Page 27 of 38 HC-NIC Page 27 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER Gujarat Ceramic Floor Tiles Mfg. Assn. (supra) also does not assist the case of the respondents, inasmuch as in the said case, the sole ground on which the High Court had entertained the writ petition was that the question raised in the petition was not only important but also sensitive affecting the people of the country at large. The Supreme Court held that this was no reason at all, as the economic impact of every case of alleged dumping would necessarily affect the people of the country at large and that if such reasons were to be accepted as a valid basis for exercise of judicial discretion to entertain the writ petition in its extraordinary jurisdiction under Article 226 of the Constitution, then the provisions for appeal against the orders passed by the designated authority in respect of anti-dumping issues would be rendered otiose.
21. As regards the contention that the final findings of the disciplinary authority are merely recommendatory and, therefore, the petition being premature ought not to be entertained, in Alembic Ltd. V. Union of India (supra), on which reliance has been placed on behalf of the respondents, this court in paragraph 31 of the reported decision has held that "Sub-rule (1) of rule 18 uses the word 'may'. Unless there are sufficient reasons it would not be possible for the court to read the word 'may' as 'shall'. In comparision to this, sub-rule (4) of rule 17 provides that if final finding of the designated authority is negative, the Central Government shall withdraw the provisional duty if imposed. Thus, in such a situation, the legislature had left no option - no discretion to the Central Government but to act in accordance with the final findings of the designated authority and withdraw the provisional duty Page 28 of 38 HC-NIC Page 28 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER imposed. Thus, though the final findings may be recommendatory, the question as to whether the Central Government has any discretion not to revoke the anti-dumping duty despite the final finding of the DA being negative needs to be examined". On behalf of the petitioners it has been contended that the final findings are final as regards the findings recorded therein. If the finding regarding anti-dumping is negative, the Central Government has no option but to revoke the duty. In these circumstances as well as in the light of the observations of this court in Alembic Ltd. V. Union of India (supra), the present petition challenging the disclosure statement and the final findings cannot be said to be pre- mature.
22. In the facts of the present case, the petitioners have been able to establish that the case falls within the well settled parameters for exercise of judicial review under Article 226 of the Constitution as discussed hereinabove. In that view of the matter, the contention that the petition ought not to be entertained as being premature, also does not merit acceptance.
23. The crucial question that needs to be addressed is whether or not the interim relief granted earlier should be continued. Before embarking upon any discussion on this issue, it may be germane to refer to the decision of the Supreme Court in Assn. of Synthetic Fibre Industry v. J.K. Industries Ltd., (supra) wherein it has been held thus:
"After hearing him, we are not satisfied that any party can be prejudiced, much less irreparably, merely by the Page 29 of 38 HC-NIC Page 29 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER communication or publication of the findings of the designated authority by way of notification. On the contrary, if the process is delayed and the time-limit laid down for any of the stages expires without accomplishment, then the entire proceedings may stand frustrated. The balance of convenience does not lie in favour of passing or continuing any of the interim orders passed by the High Court.
Though we are confident that the High Court would certainly conclude the hearing before it as expeditiously as it can and would pronounce its judgment, yet we do not find any justification for sustaining the interim orders dated 25-1-2005 and 16-2-2005 passed by the High Court. The same are directed to be vacated. The designated authority may submit its final findings to the Central Government and the same shall also be available for being published by way of notification. The Central Government may take its own decision on such findings in accordance with law. Needless to say, all these steps including the imposition of anti-dumping duty, in the event of the Central Government forming an opinion to do so, would be subject to the result of the writ petition pending in the High Court and the High Court does have power to grant an interim relief at any stage of the proceedings subject to a case in that regard being made out. That is what the law is. The decision of the Central Government in the matter of anti-dumping duty is appealable and also subject to writ jurisdiction on well-settled parameters of constitutional law."
24. Thus, the Supreme Court, in a case where the High Court had directed that the final findings to be kept in a sealed cover, was expressed the view that if the process is delayed and the time-limit laid down for any of the stages expires without accomplishment, then the entire proceedings may stand frustrated. Besides, the rules clearly provided for the time frame within which each step is to be completed. Except for extension of the period for rendering the final findings by six months, none of the other provisions provide for extension of the statutory periods. As per the scheme of the Anti-
Page 30 of 38HC-NIC Page 30 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER dumping Rules, under rule 17 of the rules, it is mandatory for the Designated Authority to submit the final findings recorded by it to the Central Government within in period of one year from the date of initiation of an investigation. The proviso to rule 17 empowers the Central Government, in its discretion, in special circumstances, to extend further the above period of one year by six months. Under rule 18 of the rules, the Central Government, if it accepts the recommendations of the designated authority, is required to publish a notification in the Official Gazette within three months of the date of publication of final findings by the designated authority under rule 17. If the proceedings are not completed within the respective statutory periods, the same would be vitiated.
25. Reverting to the facts of the present case, the final findings have been published on 23rd September, 2016, accordingly, the period within which the Central Government is required to issue a notification in the Official Gazette is three months from the said date. On behalf of the petitioners, it has been urged that the interim relief granted earlier be continued with a clarification that the period during which the proceedings have been stayed be excluded while computing the time limit for publication of notification by the Central Government after publication of the final findings and that the petitioners will not raise any contention that the time limit has expired merely because the notification could not be issued on account of the stay granted by this court.
26. In this regard, it may be noted that the Supreme Court in Association of Synthetic Fibre Industry v. J.K. Industries Ltd. (supra) has held that if the process is delayed and the Page 31 of 38 HC-NIC Page 31 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER time limit laid down for any of the stages expires without accomplishment, then the entire proceedings may stand frustrated. The balance of convenience does not lie in favour of passing or continuing any of the interim orders passed by the High Court. Thus, it appears that if the statutory period lapses, albeit on account of the interim relief granted by this court, the entire proceedings may stand frustrated. Insofar as the submission that this court may clarify that the respondents shall be entitled to exclusion of the period during which the interim order operates while computing the period of three months under rule 18 of the rules is concerned, it may be noted that whenever the Legislature wanted to grant the benefit of extension of time when proceedings are stayed by the court, it has expressly provided for the same. For example, section 11A of the Land Acquisition Act, 1894 provides that the Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. The Explanation thereto, however, provides that in computing the period of two years referred to in the section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. However, neither the Customs Tariff Act, 1975 nor the Anti-Dumping Duty Rules, contemplate automatic extension of the time limit in case any action or proceeding to be taken under the rules is stayed by an order of a court. It is a well settled canon of law that if the statute prescribes a time limit for any action/proceeding, the High Court in exercise of powers under Article 226 of the Constitution of India can neither curtail nor extend such period. Therefore, the Page 32 of 38 HC-NIC Page 32 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER submission that the interim relief granted earlier be extended subject to such clarification, cannot be accepted. Nonetheless, the court would still be required to consider the aspect of equity and endeavour to maintain a balance between the interests of the respective parties.
27. As noted hereinabove, while the learned counsel for the petitioners have shown willingness to proceed with the hearing of the petition and ensure that the same decided before the expiry of the statutory time limit, Mr. Nankani, learned counsel for the respondent No.7 in Special Civil Application No.16426 of 2016 has objected to the matter being finally heard at the admission stage, and the learned counsel for the other respondents have maintained a tacit silence in this regard. Consequently, the situation that has arisen is that on account of reluctance on the part of the learned counsel for the respondents to proceed with the hearing of the matter, the court is not in a position to decide it expeditiously. The respondents, therefore, cannot be heard to contend on the one hand that the matter may not be finally heard and on the other hand seek vacation of the interim relief. The learned counsel for the petitioners has brought to the notice of the court the difficulties that would be faced by the petitioners in case a notification is issued by the Central Government revoking the anti-dumping duty. On behalf of the respondents, it has been contended that they, too, are domestic industries who are consumers of soda ash and continuance of imposition of anti- dumping seriously prejudices them as they have to pay high costs for the raw material and that in the event the issuance of notification under rule 18 of the rules is delayed, they would not be entitled to refund of the amount paid by way of anti-
Page 33 of 38HC-NIC Page 33 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER dumping duty, inasmuch as, their right arises only from the date of issuance of notification by the Central Government.
28. Having regard to the rival submissions and the facts and circumstances of the case as discussed hereinabove, this court of the view that the balance of convenience lies in favour of the petitioners. However, in the light of the above discussion, the interim relief as granted earlier cannot be continued as the same may result in the lapse of the statutory period and render the proceedings infructuous. That, however, does not mean that the petitioners are not entitled to any interim relief. As per the submissions advanced by the learned counsel for the petitioners, in case the Central Government accepts the recommendations and issues a notification revoking the anti- dumping duty, there is likelihood of large scale dumping of soda ash in the domestic market which would prejudicially affect their rights, whereas on behalf of the private respondents/domestic consumers it has been contended that any delay in issuance of a notification under rule 18 of the rules by the Central Government prejudicially affects them as they would not be entitled of refund of the anti-dumping duty paid by them in the interregnum as their rights get crystallised only upon issuance of a notification. In this backdrop, the court is of the view that the interests of all the parties could be balanced if the Central Government is permitted to proceed further pursuant to the final findings, if it so deems fit. If the Central Government decides not to revoke the anti-dumping duty, the present petitions may not survive. However, in case a notification revoking the anti-dumping duty is published in the Official Gazette, the interests of the petitioners can be taken care of by providing that in such an eventuality, such Page 34 of 38 HC-NIC Page 34 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER notification shall not be acted upon till the final hearing of the petitions. This would also take care of the interests of the private respondents who have stated that their right to get refund of the duty paid during the interregnum would arise only upon a notification under rule 18 of the rules being published. As held by the Supreme Court in Association of Synthetic Fibre Industry v. J.K. Industries Ltd. (supra), all steps including the imposition of anti-dumping duty [which in the opinion of this court, would include revocation of anti- dumping duty], in the event of the Central Government forming an opinion to do so, would be subject to the result of the writ petition pending in the High Court and the High Court does have power to grant interim relief at any stage of the proceedings subject to a case in that regard being made out.
29. Insofar as reliance placed by Mr. Nankani upon the decision of the Supreme Court in Commissioner of Customs v. G.M. Exports (supra) to contend that in the light of the said decision the balance would tilt in favour of international trade is concerned, a perusal of the said decision makes it amply clear that the same was rendered in a totally different set of circumstances wherein the question before the court was whether anti-dumping duty imposed in respect of imports made during the period between the expiry of the provisional anti-dumping duty and the imposition of final anti-dumping duty is legal and valid. The court on a reading of sub-rule (2a) of rule 13 of the rules found that the final anti-dumping duty only incorporates the anti-dumping duty within itself, but in the manner provided by rule 13. Thus, such incorporation can only be for the period up to which the provisional duty can be levied and not beyond. The court observed that it is clear that Page 35 of 38 HC-NIC Page 35 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER both literally, and in conformity with the WTO Agreement, there can be no levy of anti-dumping duty in the "gap" or interregnum period between the lapse of the provisional duty and imposition of the final duty. The court further observed that rule 21 has been made to carry out what is stated in clause 10.3 of the WTO Agreement. Rule 21 (2) echoes what is already found in section 9-A(2). If provisional anti-dumping duty is found higher than the final anti-dumping duty, the differential shall be refunded to the importer. But sub-rule (1) goes a step further and states that if the anti-dumping duty final imposed is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. The court observed that it is obvious that this rule has been framed in the interest of international trade and it is in this background that the court held that the delicate balancing act between protection of domestic industry and the hardship caused in the course of international trade has thus been tilted in favour of the latter. The court has not laid down any absolute proposition of law that in every eventuality, the balance would tilt in favour of international trade. In the opinion of this court, the above decision would have no applicability to the facts of the present case, and the question as regards balance of convenience would always depend upon the facts and circumstances of each case.
30. For the foregoing reasons, the court is of the view that the matters require consideration. Hence, issue Rule returnable on 16th January, 2017. Mr. Devang Vyas, learned Assistant Solicitor General waives service of notice of rule on behalf of the respondents No.1 and 2; Mr. Vishal Sevak waives for respondent No.3; Mr. Paritosh Gupta, learned advocate Page 36 of 38 HC-NIC Page 36 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER waives service of notice of rule on behalf of the respondent No.4 in Special Civil Applications No.16426 of 2016 and No.16427 of 2016 as well as for respondent No.5 in Special Civil Applications No.16428 of 2016 and 16429 of 2016; Mr. Anand Nainavati, learned advocate waives service of notice of rule on behalf of the respondent No.4 in Special Civil Applications No.16428 of 2016 and No.16429 of 2016 as well as for respondent No.5 in Special Civil Application No.16426 of 2016 and No.16427 of 2016; Mr. Hardik Modh, learned advocate waives service of notice of rule on behalf of the respondent No.7 in Special Civil Applications No.16426 of 2016 and No.16427 of 2016. The respondents shall file their counters (if not already filed) on or before 27th December, 2016. Affidavit-in-rejoinder, if any, to be filed on or before, 9th January, 2017. All pleadings should be completed on or before the returnable date.
31. The ad-interim relief granted earlier is modified to the following extent:
The Central Government is permitted to proceed further pursuant to the final findings submitted by the designated authority. However, in case, pursuant to the impugned final findings recorded by the designated authority, the Central Government publishes a notification in the Official Gazette under rule 18 of the rules, the same shall not be acted upon till the final disposal of these petitions. Having regard to the urgency of the matter, the parties are expected to extend all cooperation to ensure that the petitions are heard expeditiously and the final hearing is concluded at the earliest. It is further clarified that all the steps taken under the Act and Page 37 of 38 HC-NIC Page 37 of 38 Created On Thu Feb 16 03:14:19 IST 2017 C/SCA/16426/2016 ORDER the rules, including the revocation of anti-dumping duty would be subject to the final outcome of this petition. However, in case the petitions are not finally heard on 15.02.2017 or soon thereafter, it would be open for the respondents to seek vacation of the interim relief granted by this court.
(HARSHA DEVANI, J.) (A. S. SUPEHIA, J.) parmar* Page 38 of 38 HC-NIC Page 38 of 38 Created On Thu Feb 16 03:14:19 IST 2017