Delhi High Court
Deepak Fertilizers And Petrochem vs The Designated Authority Dg Of Lamba on 10 January, 2006
Equivalent citations: 128(2006)DLT140, 2006(203)ELT370(DEL)
Author: Markandeya Katju
Bench: Markandeya Katju, Madan B. Lokur
JUDGMENT Markandeya Katju, C.J.
Page 407
1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 23rd November, 2005. Heard learned counsel for the parties and perused the records.
2. By way of a writ petition, the appellant challenged the recommendation of the Designated Authority dated 19th March, 2004 made under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
3. The learned Single Judge held that an appeal is provided against the said order to the CESTAT under Section 9C of the Customs Tariff Act, 1975.
4. In our opinion, this view is not correct. An appeal under Section 9C of the Act lies only against the final order and not against a mere recommendation. The final order is an order under Section 9A of the Act by the Central Government imposing or not imposing Anti Dumping Duty. The Designated Authority under Rule 3 only assists the Central Government in making the determination and, in our opinion, its recommendation is not binding on the Central Government as also held by the Supreme Court in Saurashtra Chemicals Ltd. v. Union of India; .
5. The grievance of the writ petitioner was that, in fact, Anti Dumping Duty should have been imposed but the Designated Authority has given a wrong report that no Anti Dumping Duty is imposable.
6. In our opinion, this report of the Designated Authority being only a recommendation, does not create any rights or liabilities. The Central Government can disagree with the recommendation under Section 9A of the Act.
Page 408
7. Section 9(A)(1) reads as follows:-
Section 9A. Anti-dumping duty on dumped articles. - (1) Where any article is exported from any country or territory (hereinafter 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.
8. It may be seen that it is the Central Government which has to impose the Anti Dumping Duty and not the Designated Authority.
9. In this connection, it may be mentioned here that according to the Pure Theory of Law of the eminent Jurist Kelsen (see Kelsen's 'The General Theory of Law and State'), in every country there is a hierarchy of laws, and the general principle is that if there is a conflict between a norm in a higher layer of the hierarchy and a norm in a lower level of the hierarchy, then the norm in the higher layer prevails, and the norm in the lower level becomes ultra vires or will be read in a manner so as to make it in conformity with the higher layer.
10. In our country this hierarchy is as follows:-
(1)The Constitution of India.
(2)Statutory Law, which may be either Parliamentary Law or law made by the State Legislature.
(3)Delegated legislation which may be in the form of rules, regulations etc. made under the Act.
(4)Purely executive or administrative orders under Articles 73 or 162 of the Constitution.
11. Section 9A of the Act is in the second layer of the hierarchy and hence any Rule made under the Act will have to be read so as to be in conformity with Section 9A and not in conflict with it.
12. Section 9A of the Act makes it clear that it is only the Central Government which can impose Anti Dumping Duty and no other authority. Hence, the report of the Designated Authority can at best amount to a recommendation and, in fact, it is regarded as such under Rule 4(1)(d). Hence, it does not create any rights or liabilities and the Central Government can disagree with this recommendation.
13. Learned counsel for the appellant submits that Rule 4(1)(d) is ultra vires. We do not agree for the simple reason that it only provides for a recommendation and as such it is not in conflict with either the provisions of the parent Act or the Constitution. We have already held that the Central Government is not bound by such a recommendation and can take a contrary view. Hence, there is no question of the invalidity of Rule 4(1)(d).
14. Learned counsel then submits that there is a limitation period prescribed for the Central Government to pass its order under Rule 18(1) and Rule 18(4) of the Rules.
Page 409
15. Rule 18(1) reads as follows:-
18. Levy of duty.
(1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17.
16. Rule 18(4) reads as follows:-
(4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the investigation was initiated, the Central Government shall, within forty-five days of the publication of final findings by the designated authority under rule 17, withdraw the provisional duty imposed, if any.
17. A perusal of Rules 18(1) and (4) shows that Rule 18(1) deals with a situation where a designated authority finds that Anti-Dumping Duty is imposable in which case the Central Government shall impose the duty by a notification in the Official Gazette within three months of the date of the publication of final findings by the Designated Authority. Rule 18(4) deals with a situation where the Designated Authority finds that no Anti-Dumping Duty is imposable, in which case the Central Government shall within forty-five days of the publication of final findings by the Designated Authority withdraw the provisional duty imposed, if any.
18. None of these Rules deals with a situation where the Designated Authority submits a report that Anti-Dumping Duty is not imposable but the Central Government disagrees with this conclusion.
19. Moreover, Section 9A of the Act does not provide for any limitation. When the parent Act does not provide for a limitation for doing some act, then obviously such limitation cannot be prescribed by the Rules because the Rules are subordinate to the Act. Full play of Section 9A of the Act cannot be controlled by Rules as Rules are only a piece of delegated legislation and the delegated legislation cannot circumscribe the powers of the Act.
20. Under the circumstances, we dispose of the appeal with liberty to the appellant to approach the Central Government by making a representation giving the facts and annexing the relevant material and alleging that in fact Anti-dumping Duty was imposable on the goods.
21. On receiving such a representation, the Central Government shall hear the parties concerned and thereafter decide the said representation by a speaking order, preferably within two months from the date of filing of the representation. We make it clear that the Central Government shall not be bound by the report of the Designated Authority and may form a different conclusion.
22. If any of the parties wishes to be heard, the Central Government shall hear that party in person or through counsel.
23. With these observations, this appeal is finally disposed of.