2013 (6) TMI 92 - HC - Customs

Anti dumping duty - Disclosure Statement - Plain Gypsum Plaster Boards (hereinafter referred to as the subject goods ), originating in or exported from China PR, Indonesia, Thailand and United Arab Emirates - writ petition - territorial jurisdiction of high court - held that - petitioners have shown that they have sufficient cause of action for this Court to entertain the writ petitions. It has been shown that the petitioners are carrying on their business operations having their offices in Chennai, in the State of Tamilnadu. It has also been shown that certain imports of the subject goods are being made through the Chennai and the Tuticorin Ports. Provisional Anti-Dumpting Duties have also been levied on the imported goods, by the authorities in Chennai. As such, it can be held that, atleast a part of the cause of action for the filing of the writ petitoins had arisen within the territorial jurisdiction of this Court. Further, it is noted that, on certain earlier occasions, this Court had entertained writ petitions, wherein, similar issues had arisen, as in the present cases. Therefore, the contentions raised on behalf of the respondents concerned stating that this Court does not have the jurisdiction to entertain the writ petitions cannot be accepted. Accordingly, this Court holds that the writ petitions are maintainable, before this Court. It would not be appropriate for this Court to interefere with the proceedings of the Designated Authority, at the stage of the issuance of the Disclosure Statement, by the said authority, under Rule 16 of the Anti Dumping rules, especiallly, in view of the fact that the petitioners have not shown sufficient cause or reason for such intereference. As such, the writ petitions are found to be premature in nature and that they have been filed based on a mere apprehension that the impugned Disclosure Statement issued by the Designated Authority would have an adverse effect on the petitioners, at the later stages of the proceedings. - writ petition dismissed.

Issues Involved:
1. Territorial Jurisdiction
2. Prematurity of the Writ Petitions
3. Reference to the Competition Commission
4. Impact of the Disclosure Statement

Detailed Analysis:

1. Territorial Jurisdiction:
The respondents raised preliminary objections regarding the territorial jurisdiction of the Court, arguing that no cause of action had arisen within the jurisdiction of the Madras High Court. They cited previous cases, including *Outokumpu Stainless OY Ltd. Vs. UOI* and Supreme Court decisions in *Kusum Ingots and Alloys Limited Vs. Union of India* and *Alchemist Limited Vs. State Bank of Sikkim*, to support their contention that the writ petitions were filed prematurely and without any immediate cause of action.

However, the Court noted that the petitioners were carrying on their business operations and had their offices in Chennai, and certain imports were being made through the Chennai and Tuticorin Ports. Provisional Anti-Dumping Duties had also been levied on the imported goods by authorities in Chennai. Thus, the Court held that at least a part of the cause of action had arisen within its territorial jurisdiction, making the writ petitions maintainable.

2. Prematurity of the Writ Petitions:
The respondents argued that the writ petitions were premature as the Disclosure Statement issued by the Designated Authority under Rule 16 of the Anti-Dumping Rules, 1995, did not have a binding effect and was merely a step before the Final Findings and subsequent notification by the Central Government. They cited the Supreme Court decision in *Association of Synthetic Fibre Industry Vs. J.K.Industries Ltd* to argue that no interim orders should be granted at this stage.

The Court agreed with the respondents, stating that the Disclosure Statement was not binding and that the petitioners could challenge the final notification, if any, before the Customs, Excise, and Service Tax Appellate Tribunal under Section 9C of the Customs Tariff Act, 1975. Therefore, the writ petitions were deemed premature and dismissed.

3. Reference to the Competition Commission:
The petitioners contended that the Designated Authority should have referred the matter to the Competition Commission under Section 21 of the Competition Act, 2002, before rendering its Final Findings. They cited various decisions, including *Union of India Vs. Competition Commission of India* and *Competition Commission of India Vs. Steel Authority of India Limited*.

The Court rejected this contention, noting that Section 62 of the Competition Act, 2002, states that the provisions of the Act are in addition to and not in derogation of any other law. Furthermore, Section 21 of the Act uses the term "may," indicating that it is not mandatory for the Designated Authority to refer the matter to the Competition Commission. The Court emphasized that specific time limits are prescribed for the Designated Authority to perform its functions under the Anti-Dumping Rules.

4. Impact of the Disclosure Statement:
The petitioners argued that the Disclosure Statement issued by the Designated Authority was based on incorrect premises and did not consider their submissions adequately. They claimed that the imposition of Anti-Dumping Duties based on this statement would adversely affect them.

The Court noted that the Disclosure Statement was merely an intimation of the essential facts under consideration and did not have a binding effect. It was only a precursor to the Final Findings and any subsequent notification by the Central Government. The Court held that the petitioners had not shown sufficient cause for interference at this stage and that their apprehensions were based on mere speculation.

Conclusion:
The Court dismissed the writ petitions as premature, stating that the Disclosure Statement issued by the Designated Authority under Rule 16 of the Anti-Dumping Rules, 1995, did not have a binding effect and could not be challenged at this stage. The Court also held that it had the territorial jurisdiction to entertain the writ petitions but found no sufficient cause for interference. The petitioners were advised to challenge any final notification by the Central Government before the appropriate appellate tribunal.

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