2011 (8) TMI 602 - AT - Customs

Anti dumping duty - challenging the final findings dated 24.11.2009 issued by the Designated Authority. - Preliminary findings on 27.3.2009 - Final findings on 24.11.2009 by designated authority on Anti dumping duties - In view of (Punjab & Haryana high court) respondents are justified in contending that it is no more open for the appellants to challenge the final finding by way of appeal and only remedy available at this stage to the appellants is to approach Designated Authority in review proceedings under Rule 23 of Anti-Dumping Rules

Summary

Issues Involved:
1. Parallel Remedies
2. Applicability of Section 11 and Order II Rule 2 of the Civil Procedure Code (CPC)
3. Constructive Res Judicata
4. Statutory Right of Appeal

Detailed Analysis:

1. Parallel Remedies
The respondents raised a preliminary objection that the appellants were pursuing multiple remedies against the same order, which is not permissible. The appellants had already challenged the final findings through a writ petition before the High Court and could not simultaneously pursue an appeal before the Tribunal. The High Court had dismissed the writ petition on the grounds that the appellants' grievances could be addressed in the review proceeding under Rule 23 of the Anti-Dumping Rules.

2. Applicability of Section 11 and Order II Rule 2 of the Civil Procedure Code (CPC)
The respondents argued that the appellants' appeal should be rejected in liminee based on the principles under Section 11 and Order II Rule 2 of the CPC. These principles prevent litigants from pursuing multiple proceedings on the same matter, as it constitutes an abuse of the process of law. The appellants had chosen to challenge the final findings via a writ petition without reserving their right to appeal, which, according to the respondents, barred them from pursuing the appeal.

3. Constructive Res Judicata
The Tribunal referred to the principle of constructive res judicata, which prevents a party from raising issues in subsequent proceedings that could have been raised in earlier ones. The High Court had already addressed the appellants' challenge to the final findings and directed them to pursue their grievances in the review proceedings. Therefore, the appellants were precluded from challenging the final findings again before the Tribunal.

4. Statutory Right of Appeal
The appellants contended that their statutory right of appeal could not be denied, arguing that the High Court had not decided the writ petition on its merits. However, the Tribunal held that the statutory right of appeal is not immune from the principles of Section 11 and Order II Rule 2 of the CPC. By agreeing to confine their challenge to the review proceedings under Rule 23, the appellants had effectively waived their right to appeal.

Conclusion:
The Tribunal upheld the preliminary objections raised by the respondents and dismissed the appeal. The appellants were directed to pursue their grievances in the review proceedings under Rule 23 of the Anti-Dumping Rules, as per the High Court's order. The Tribunal emphasized that allowing multiple proceedings on the same matter would constitute an abuse of the process of law and violate the principles of res judicata and the CPC.