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1 - 10 of 18 (0.24 seconds)Article 226 in Constitution of India [Constitution]
Designated Authority Anti-Dumping ... vs M/S. Haldor Topsoe A/S. on 20 July, 2000
20. According to me, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 is made in exercise of the powers conferred by Sub-section 6 of Section 9A and Sub-section (2) of Section 9B of the Customs Tariff Act, 1975 and in suppression of the earlier Rules of the year, 1985. Therefore, the Rules have to be read in the light of the Act under which those have been made. Section 9A of the Customs Tariff Act, 1975 gives an impression about anti-dumping duty on dumped articles. Both the parties have relied upon a judgment of the Supreme Court i.e. Designated Authority v. Haldor Topsee A/S . It was a reference case arose out an order of the CEGAT. The Supreme Court had laid down certain principles of anti-dumping in the said judgment. Section 9A deals with the value. Sub-section (2) of Section 9A says that the Central Government may, pending the determination in accordance with the provisions of this section and the Rules made there-under of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin if such anti-dumping exceeds the margin. The import of Sub-section (2) is in the nature of provisional assessment keeping the final assessment pending. According to me when imposition under a preliminary finding subject to final determination can be made non-imposition till final determination can also be made. Rule of vice versa is applicable on that score. Imposition includes non-imposition. Therefore, the words "de-minimis pending further investigation" will lead no illegality or material irregularity. Even if the words "pending final investigation" are absent and "de-minimis finding" has been made and notified I do not think the Designated Authority is powerless in taking any measure in respect of the same at the time of final finding on the basis of any informations available to him. There is a provision of statutory review under Rule 23 of the said Rules. As per sub-rule the designated authority shall, from time to time, review the need for the continued imposition of the anti-dumping duty and shall, if it is satisfied on the basis of the information received by it that there is no justification for the continued imposition of such duty recommend to the Central Government for its withdrawal. Any review initiated under Sub-rule (1) shall be concluded within a period not exceeding twelve months from the dale of initiation of such view. The provisions of the Rules, 6, 7, 8, 9, 10, 11,16, 17, 18, 19 and 20 shall be mutatis mutandis applicable in the case of review. Therefore two things can be ascertained from such provision. There is no bar in reviewing the imposition of duty time to time. The other is when the preliminary finding i.e. de-minimis subject to final determination is merged with the final finding the same can be reviewed as per its applicability to Rule 17 as and when it is called upon, on the other-hand if the de-minimis finding said to be final as per Rule 14 on the basis of the arguments of the petitioner, the designated authority is empowered to review. Therefore the authority has jurisdiction to determine the duty finally at the preliminary stage or can review. On top of it there is also provision of appeal or review regarding the existence degree and effect of any of dumping in relation to import of any article which shall lie with the Customs, Excise and Gold Control Appellate Tribunal constituted under Section 129 of the Customs Act. The Appellate Tribunal may, after giving the parties the opportunity of appeal and opportunity of being heard, pass such order thereon as it thinks fit confirming, modifying or annulling the appeal ordered against. The termination of investigation as available under Rule 14 obviously correlates to the preliminary findings under Rule 12 and levy of provisional duty under Rule 13. The question of final finding arises only under Rule 17. Therefore, the termination of investigation under Rule 14 cannot be output of final finding which is yet to be considered under such rule, Rule 14 prescribes that Designated Authority shall terminate the investigation immediately if it determines that the injury is negligible or less than the prescribed percentage of volume. If it happens at the preliminary stage than the Designated Authority obviously refuses to impose any duty but that does not necessarily mean investigation will be terminated forever before the final finding. If the authority at the time of final finding found certain materials on the basis of the information even then cannot be able to review the situation is nof a justifiable argument. Rule 16 prescribes for information. According to the petitioner himself, Rule 16 is different from confidential information under Rule 7. Good, bad or indifferent, if such disclosure of information becomes the basis of the final finding then obviously the authority in considering the matter will be empowered to review or recall the earlier order passed for termination of investigation at the provisional stage. It is well known under the law that any of the authorities who passes an order can recall and/or review the order so passed by him at any stage. Therefore, using of the words imposition of duty is de-minimis or de-minimis pending further investigation can hardly make any difference. In other words, de-minimis finding within the words "pending further investigation" is superfluous. The word de-minimis is no longer available in view of the final finding. Therefore, the word "de-minimis" or the words "de-minimis pending further investigation" has or have merged with the final finding. Now, the question is how the Designated Authority came to the conclusion in the final finding that volume or import from Bangladesh cannot be de-minimis. That determination obviously derived from the factual materials. If it is so it is very difficult for the writ court to ascertain whether such the materials can draw a final inference contrary to the preliminary finding or not, it appears one of the conditions for such interference is that the exporter was not present. The other condition is assessment of the exporters of Bangladesh who had supplied certain materials were not available. Such materials may or may not be correct but again that is the question of investigation of factual materials by a forums made for the purpose under the statute. Therefore, I do not find any reason for interference of the writ court in those subjects. In other words, the decision of the writ court may not be so efficacious remedy as it has to be made under the statute, Fat obviously there is a valid point for the purpose of taking decision by the forum or forums made for the same.
Titagarh Paper Mills Co. Ltd. vs State Of Orissa And Ors. on 29 April, 1974
11. So far as the question of alternative remedy is concerned, Mr. Mitra cited various judgments. Firstly, he cited (Titagarh Paper Mills Company Limited and Anr. v. State of Orissa and Anr. with other matter). On the factual assessment of the case a three Judges Bench of the Supreme Court held that an assessee can get adequate redressal against the wrongful acts complained in the appeal and if dissatisfied can make a further appeal to the Tribunal and even thereafter seek for opinion of the High Court. A complete machinery is provided under the law which should be upheld, There is no question of making a writ petition challenging the same.
Assistant Collector Of Central Excise ... vs Dunlop India Ltd. And Ors on 30 November, 1984
This is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Secondly, he cited a judgment (Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Limited and Ors.) where also a three Judges' Bench of the Supreme Court held that Article 226 is not meant to short circuit or circumvent statutory procedure. It is only where statutory remedies are entirely ill-suited to meet the demands of the extraordinary situation, as for instance, where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and prevention of public injury and the vindication of public justice requires that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving revenue where statutory remedies are available are not such matters. The Supreme Court took a judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice needs to be strongly discouraged. Thirdly, he cited a judgment reported in 2001 (131) E.L.T. 3 (S.C.) [Commr. of Customs, Visakhapatnam v. jaya Satya Marine Exports (P) Ltd.)] where also a three Judges Bench of the Supreme Court accepted the argument of the authorities on the point of relegating the matters to the forum for alternative remedy. Fourthly he cited a Madras High Court judgment reported in 2001(132) E.L.T. 561 (Mad.)
Punjab National Bank vs O.C. Krishnan And Ors on 13 August, 2001
(Punjab National Bank v. O.C. Krishnan and Ors.) where also Supreme Court held that even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising the jurisdiction under the said Constitutional provisions.
Union Of India Etc. Etc vs National Hydroelectric Power Corpn. ... on 25 July, 2001
17. According to Mr. Pal, there is no answer of the respondents in respect of the aforesaid three points. That apart, he contended that the alternative remedy is no bar in respect of such cases, particularly when the respondents submitted to the jurisdiction by filing applications for addition of parties and/or vacating the interim orders and having been allowed to exchange the affidavits. He also said that the notification has not been laid down as per Section 9A(7) of the Act. On this issue he relied upon a three Judges' Bench judgment of the Supreme Court (Union of India v. National Hydroelectric Power Corpn. Ltd. with other matters). He contended that Section 9A of the Act is a charging provision for levying duty on the import of articles into the country. The export price means the actual price at which the article is exported from the exporting country or if such price is not available or reliable then it is to be construed that price determined as per Rule made under Section 9A(6). There is a clear admission that volume of import is de-minimis. The value was based on the figures of the Bangladesh exports. The final finding violates Rule 17(1)(A)(i) 'as it does not disclose the export price, normal value and margin of dumping. Mr. Pal has given a great emphasis on the words "volume" and "value". According to him, volume is the important factor. Both volume and value are alien to the concept of law. He also said that even lead contents of the articled goods cannot be the factor. The very word "dumping" is related to "volume" but not with the "value" or "lead contents". In this respect Mr. Mitra contended that value is the common denomination which is based on volume, value and lead contents.