2018 (6) TMI 1834 - HC - Customs

Levy of Anti-Dumping Duty - import of melamine - whether any legal right has accrued to the applicant from the Notification dated 28.01.2018? - HELD THAT - In the instant case, the interest of the applicant is that in the event the writ petition is dismissed, the applicants would continue to enjoy the benefit of the anti-dumping duty being imposed at the rate of 331.10 USD per metric ton in respect of import of melamine from Peoples Republic of China. As such, the eventual interest of the applicant is in the fruit of the present litigation, as to whether they would continue to get the eventual benefit that may be derived from the decision in the writ petition. From the said point of view also, by applying the proposition of law laid down by the Supreme Court in Deputy Commr., Hardoi 1953 (10) TMI 37 - SUPREME COURT in paragraph-14, where the eventual interest of the applicant is the outcome of the writ petition, so as to whether they will continue to have the eventual benefit of the rate of anti dumping duty be at Rs.331.10 USD per metric ton, the applicant is found not to be a necessary party in the present proceeding. As the initiation of the investigation under Rule 5 of the Rules of 1995 was initiated as per the written application of the applicant, the applicant may have some interest in the present writ proceeding and also the applicant would be in a good position to provide the Court, the appropriate material which may ultimately help in the appropriate adjudication of the matter. This court is of the view that it would be appropriate to allow the petitioner to be an intervenor in the connected writ proceeding - the law has been made clear by the Supreme Court in SARASWATI INDUSTRIAL SYNDICATE LTD. VERSUS COMMISSIONER OF INCOME-TAX 1999 (3) TMI 3 - SUPREME COURT , wherein, it has been held that the only purpose of granting an intervention application is to entitle the intervenor to address arguments in support of one or the other side. Application allowed.

Summary

Issues Involved:
1. Legality of the Notifications dated 06.10.2017 and 28.01.2016 imposing anti-dumping duties on melamine imports.
2. Determination of whether the applicant, M/s. Gujarat State Fertilizers Chemicals Ltd., is a necessary party in the writ petition.
3. Examination of the procedural adherence under the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
4. The distinction between legal interest and commercial interest in the context of necessary parties.

Detailed Analysis:

1. Legality of the Notifications:
The writ petitioner challenged the Notifications dated 06.10.2017 and 28.01.2016 issued by the Central Government, which imposed anti-dumping duties on melamine imports. The Notification dated 28.01.2016 imposed an anti-dumping duty of USD 331.10 per metric ton on melamine imports from China. The Notification dated 06.10.2017 extended anti-dumping duties to imports from other countries, which was later withdrawn by a Notification on 19.03.2018. The petitioner argued that the imposition of a fixed anti-dumping duty in USD for five years was arbitrary and lacked a proper basis, and that such duties should be imposed in Indian currency.

2. Necessary Party Determination:
M/s. Gujarat State Fertilizers Chemicals Ltd. sought to be impleaded as a respondent, claiming to be a domestic industry whose application initiated the investigation under Rule 5 of the 1995 Rules. The applicant argued that any decision on the Notification dated 28.01.2016 would affect its legal rights, referencing the Supreme Court decision in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay. However, the court noted that the applicant's interest was more commercial than legal, as the anti-dumping duty's rate determination was the prerogative of the Designated Authority and the Central Government. The court concluded that the applicant was not a necessary party but allowed them to intervene in the proceedings.

3. Procedural Adherence:
The court examined the procedural adherence under Section 9A of the Customs Tariff Act, 1975, which allows the Central Government to impose anti-dumping duties if dumping causes injury to the domestic industry. The Rules of 1995 outline the procedure for such investigations, including the appointment of a Designated Authority and the requirement for a written application from the domestic industry. The Designated Authority must investigate and submit findings on dumping and injury. The court found that the applicant had a legal right to initiate the investigation but no claim over the specific rate of duty imposed.

4. Legal vs. Commercial Interest:
The court distinguished between legal and commercial interests, citing the Supreme Court's decision in Deputy Commr., Hardoi v. Rama Krishna Narain. The court held that the applicant's interest in maintaining the anti-dumping duty rate was commercial, not legal. The eventual benefit derived from the duty did not make the applicant a necessary party. The court emphasized that the applicant's role was to provide relevant materials and assist in the investigation, not to dictate the duty rate.

Conclusion:
The court disposed of the interlocutory application, allowing the applicant to intervene in the writ proceedings. The applicant could address arguments and provide materials supporting either party but was not deemed a necessary party. The court upheld the procedural framework under the Customs Tariff Act and the 1995 Rules, ensuring that the anti-dumping duty imposition followed due process.