Gujarat High Court
Farmson Pharmaceuticals Gujarat ... vs Union Of India on 26 April, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/5278/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 5278 of 2019
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FARMSON PHARMACEUTICALS GUJARAT PVT.LTD.
Versus UNION OF INDIA ========================================================== Appearance:
MR SAURABH SOPARKAR, SR ADVOCATE FOR MR RAJESH SHARMA AND MS GARGI R VYAS for the PETITIONER(s) No.1, 2 MR KSHITIJ AMIN for the RESPONDENT(s) No.1, 3 , 4 MR DEVANG VYAS for the RESPONDENT(s) No. MR NIRZAR S DESAI for the RESPONDENT(s) No.2 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE V. B. MAYANI Date : 26/04/2019 IA ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned advocates for the parties.
2. The present application has been filed for following prayers:
"9(A) This Hon'ble Court be pleased to quash and set aside Notification No. 19/2019-Customs (ADD) dated April 16, 2014;
9(B) Pending hearing and disposal of Special Civil Application 5278/2019, this Hon'ble Court be pleased to stay the effect and implementation of Notification No.19/2019- Customs (ADD) dated April 16, 2014;
9(C) Ex parte ad interim relief in terms of para 9 (B) above;"
3. The peculiar facts for making this application and Page 1 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019 C/SCA/5278/2019 IA ORDER seeking prayer would indicate that the applicants-original petitioners have taken out Special Civil Application No.5278 of 2019, inter alia, challenging the final finding No.07/16/2018-DGAD dated 29/01/2019 and the disclosure statement dated 15/01/2019 issued by respondent no.2 and placed at Annexure-G and Annexure-H to the main petition.
4. The Union of India is respondent no.1 and the Designated Authority is respondent no.2. Minister of Finance, Department of Revenue is respondent no.3 and Central Board of Indirect Taxes and Customs, Ministry of Finance is respondent no.4.
5. In the main petition, prayer in para-36(B) is for interim direction for not taking any steps pursuant to the impugned final finding dated 29/01/2019.
6. This Court, on 13/03/2019, passed the order for issuance of notice for final disposal making it returnable on 27/03/2019. The notice for final disposal was issued without any further ad interim relief as the anti dumping duty on the product "paracetamol" was extended and continuing as per notification dated 20/08/2018 till 26/04/2019. The said notification is placed on record of the main petition at page-
119.
7. The following narration of the notification deserve to be set out herein below:
"2A. In pursuance of the recommendation of the designated authority in the review initiated vide notification Page 2 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019 C/SCA/5278/2019 IA ORDER No.07/16/2018-DGAD, dated the 24th May, 2018, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 24th May, 2018, in the matter of continuation of anti- dumping duty on imports of "Paracetamol" orginating in or exported from China PR, notwithstanding anything contained in paragraph 2, this notification shall remain in force, unless revoked,suspended or amended earlier, up to and inclusive of the 26th April, 2019."
8. The date of March was fixed bearing in mind the fact that anti-dumping duty was extended till 26/04/2019. The Court also observed in the order of 13/03/2019 that the Court issued notice for final disposal and reply if any was expected to be filed by the returnable date. The Court had to pass the order on 11/04/2019 which reads as under:
"Leave to amend.
On 13.03.2019, this Court passed the following order:
Notice for final disposal, returnable on 27th March, 2019.
Learned counsel for the petitioner has invited our attention to the discloser statement and laid emphasis upon page No.206 and 207 to indicate that the columns which have been left blank or extract marks are provided, ordinarily ought not to have been left blank and therefore, this was specifically brought to the notice of the authority under the objection dated 22.1.2019. The authority without there being any decision thereon, rendered its final findings, which could be seen from the page No. 261 and 262. In view thereof the Court is of the view that as there is a prima-
facie breach of principle of natural justice as the decisions have been rendered prima-facie without affording appropriate material to the concerned, the Court has issued Notice for final disposal and have been expected from the other side to file reply, if any, by the returnable date, in case if notice is served within a reasonable time from today.
Learned counsel further submitted that conclusions are diametrical opposite to the final Page 3 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019 C/SCA/5278/2019 IA ORDER findings recorded.
Direct service is permitted."
Thereafter, time and again the matter has been adjourned.
Today, Shri Desai, learned advocate appears for the designated authority and submitted that the anxiety expressed on behalf of the petitioner that the anti dumping duty for extended period also would come to an end by 26.04.2019 and he is yet to receive instructions and reply, if any, for conducting the matter finally. In that view of the matter, he seeks time up to 22.04.2019 only. Learned counsel for the petitioner strongly opposes and apprehends that the period thereafter may not be sufficient to conduct the main matter and by efflux of time the entire matter may be rendered infructuous.
In that view of the matter, we are of the view that in case if the matter is not conducted on 22.04.2019, the appropriate orders, including directing the authority to extend the anti dumping duty at least for one month period may be considered, to be issued. S.O. to 22.04.2019. "
9. On 24/04/2019, the Court passed following order:
"1.Ms. Vyas, learned counsel for the petitioner mentioned this matter in the morning indicating that the matter was listed on 22.4.2019 and the same was requested for posting on the next day i.e. today. Inadvertently instead of 24.4.2019 it was posted on 25.4.2019 and as there is an urgency the matter is requested to be taken up today with the intimation to all the parties and their counsels. Accordingly the Court granted permission and the matter listed today itself.
2. The learned counsel appearing for respondent No.2 states that he is in fact aware of the orders passed in this matter but he received softcopy of the reply to be filed and the same could be served upon the petitioner and hardcopy duly affirmed be placed on record by tomorrow i.e. 25.4.2019 as he has been informed that the affirmed copy is already dispatched.
3. The learned counsel appearing for petitioner submitted that in fact looking to the fact that the notification of 20.8.2018 Page 4 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019 C/SCA/5278/2019 IA ORDER would come to an end by 26.4.2019 in case if sometime is taken in filing rejoinder, if any, or the hearing of the matter is spilled over and not completed by then, the irretrievable situation may be created and, therefore, he urges the Court that the Court may by further interim direction direct the authorities to extend the anti-dumping duty for a further period of two months as it may take care of intervening summer vacation also and the matter be heard prior thereto and that would serve the interest of justice.
4. This Court is of the view that while issuing the notice on 13.3.2019 an order was passed indicating therein that the notice was being issued for final disposal and it was made returnable on 27.3.2019 the Court did advert there into the requirement of issuing of notice for final disposal bearing in mind that the notification of 20.8.2018 would expire on 26.4.2019. The matter thereafter was required to be adjourned at the instance of respondent as could be seen from the order of 11.4.2019 wherein also the Court in fact had reproduced the earlier order only with a view to infuse the sense of urgency which appears to have worked but not to the fullest as though the reply has come but in a soft copy which cannot be placed on record and there is a justification on the part of the counsel for the petitioner with respect to the appropriate direction for extending the anti-dumping duty so that the subject matter of petition may not be rendered infructuous and irretrievable situation may be avoided. The Court is, therefore, of the view that let there be a direction to respondent No.1 that the anti-dumping duty as mention in Notification No.392018Custom(ADD) for the product paracetamol dated 20.8.2018 at page 119 shall be extended for a further period of two months that would take care of hearing aspect as by then the pleading would be completed. The anti-dumping duty as mentioned in the notification dated 20.8.2018 be extended for a further period up to 24.6.2019. The matter may be posted for hearing on 12.6.2019 and the parties shall exchange their pleadings, if any, in the meantime so that on 12.6.2019 the matter can be taken up peremptorily.
5. It would be open for the petitioner to serve copy of the order to the Director, Tax Research Unit, Department of Commerce, Ministry of Finance for compliance.
Direct service today is permitted."Page 5 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019
C/SCA/5278/2019 IA ORDER
10. The present application is filed as it was disclosed yesterday when the Civil Application was being mentioned for urgent circulation that the applicant has been informed and the counsel for the authority also came to know with appropriate inquiries with the concerned that the notification impugned in this application dated 16/04/2019 has already been passed rescinding the notification dated 20/08/2018 which in fact an effect of rendering the main petition infructuous.
11. The counsel for the applicant submitted that though the order of 24/04/2019 passed by the Court was passed after rescinding of the notification, but, at that time, as it is clearly emerging from what had transpired in the proceedings that neither the counsel for the authority or the petitioner had in knowledge of the rescinding notification dated 16/04/2019 and therefore, the same has not been even reflected in the reply affidavit of the authority. Perhaps the reason being the notification of 16/04/2019 was issued by the authority of the Union of India other than the Designated Authority and, therefore, on account of some lack of communication, this matter happened.
12. The learned counsel appearing for the respondents submitted that in fact the Court may pass appropriate order whereunder the imports that may be made after 16/04/2019, could be recorded so that ultimate outcome of the petition may govern the same, else the notification which was inure till 26/04/2019 has in fact been rescinded and when the Court pass an order on 24.04.2019, the factum of rescinding had Page 6 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019 C/SCA/5278/2019 IA ORDER already set in. Therefore, the Court may not pass any mandatory order.
13. The Court is of the view that the development in this matter and the passing of the orders time and again clearly indicate that the matter was to be decided finally on or before 26/04/2019. However, on account of respondents' inability to place on record their version of reply, the matter was required to be adjourned and that adjournment and posting of the matter unfortunately has resulted into passing of the notification of 16/04/2019 which if not suspended would amount to rendering the Court's order and proceedings infructuous without there being adjudication which situation cannot be permitted to prevail in any circumstances especially when the High Court is examining the final finding under Article 226 of the Constitution of India and when the Court has informed all the concerned by way of orders that the notice was being issued for final finding it was expected of all to be mindful of the time line fixed by the Court so as to contribute in the proceedings of hearing and adjudication which was subject matter of the main petition.
14. The said subject matter cannot be permitted to be rendered infructuous only on account of, may be inadvertence, on part of the Union of India. Nor would any order of recording import hereafter be of any help to the petitioner as the petition would become infructuous if the impugned notification in this application is permitted to be remained operative.Page 7 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019
C/SCA/5278/2019 IA ORDER 15. Hence, the Court is constrained to suspend the
notification dated 16/04/2019 till final disposal of the main petition which is ordered to be placed on 12/06/2019.
Direct service today is permitted.
(S.R.BRAHMBHATT, J.) (V. B. MAYANI, J.) ila Page 8 of 8 Downloaded on : Tue Jun 25 00:59:02 IST 2019