2016 (12) TMI 899 - HC - Customs

Levy of anti dumping duty (ADD) - Soda Ash - challenging the procedure undertaken by the designated authority - Jurisdiction of HC to writ entertain petition - the contention that entire exercise carried out by the designated authority is without taking into consideration that the domestic injury was operating under a protected regime - import from Peoples Republic of China, European Union, Kenya, Pakistan, Iran, Ukraine, USA - mid-term review - principles of natural justice - Held that - the Supreme Court, in the facts of the said case, while vacating the interim relief, has held that the in the event of the Central Government forming an opinion to do so, all steps including the imposition of anti-dumping duty would be subject to the result of the petition pending before the High Court and that the High Court has the power to grant interim relief at any stage of the proceedings subject to a case in that regard being made out - the petitioners have been able to establish that the case falls within the well settled parameters for exercise of judicial review under Article 226 of the Constitution as discussed hereinabove. In that view of the matter, the contention that the petition ought not to be entertained as being premature, also does not merit acceptance. Grant of interim relief - Held that - the interim relief as granted earlier cannot be continued as the same may result in the lapse of the statutory period and render the proceedings infructuous. That, however, does not mean that the petitioners are not entitled to any interim relief - the court is of the view that the interests of all the parties could be balanced if the Central Government is permitted to proceed further pursuant to the final findings, if it so deems fit. If the Central Government decides not to revoke the anti-dumping duty, the present petitions may not survive. However, in case a notification revoking the anti-dumping duty is published in the Official Gazette, the interests of the petitioners can be taken care of by providing that in such an eventuality, such notification shall not be acted upon till the final hearing of the petitions. This would also take care of the interests of the private respondents who have stated that their right to get refund of the duty paid during the interregnum would arise only upon a notification under rule 18 of the rules being published. The Central Government is permitted to proceed further pursuant to the final findings submitted by the designated authority. However, in case, pursuant to the impugned final findings recorded by the designated authority, the Central Government publishes a notification in the Official Gazette under rule 18 of the rules, the same shall not be acted upon till the final disposal of these petitions.

Summary

Issues Involved:
1. Challenge to the Disclosure Statements under Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
2. Alleged violation of principles of natural justice in the issuance of the Disclosure Statements.
3. Maintainability of the writ petitions under Article 226 of the Constitution of India.
4. Interim relief and balance of convenience.

Detailed Analysis:

1. Challenge to the Disclosure Statements:
The petitioners challenged the Disclosure Statements dated 14.09.2016 under Rule 16 of the Customs Tariff Rules, 1995, stating that the essential factors required for consideration were not disclosed. They argued that this lack of disclosure handicapped their ability to reflect and reply adequately, thereby violating Rule 16.

2. Alleged Violation of Principles of Natural Justice:
The petitioners contended that the Disclosure Statements contained final conclusions rather than tentative findings, which violated principles of natural justice. They argued that the designated authority did not provide sufficient opportunity for the petitioners to present their case. The court noted that the final findings were issued only 16 days after the Disclosure Statement, leaving inadequate time for a proper response, which amounted to a breach of natural justice.

3. Maintainability of the Writ Petitions:
The respondents argued that the petitions were not maintainable as the final findings were merely recommendatory and that an appeal could be made to the CESTAT under Section 9C of the Tariff Act. However, the court observed that there was no statutory remedy available against the Disclosure Statements or the final findings, making the writ petitions maintainable. The court cited the case of Alembic Ltd. v. Union of India, stating that the designated authority acts on behalf of the Government and its findings are not open to question by the Central Government.

4. Interim Relief and Balance of Convenience:
The court considered whether to continue the interim relief granted earlier, which restrained the Central Government from acting on the final findings. The Supreme Court in Association of Synthetic Fibre Industry v. J.K. Industries Ltd. was referenced, which emphasized that if the process is delayed and the statutory time limits expire, the entire proceedings may be frustrated. The court decided to modify the interim relief, allowing the Central Government to proceed with the final findings but restrained it from acting on any notification issued under Rule 18 until the final disposal of the petitions. This was to balance the interests of both the petitioners and the respondents.

Conclusion:
The court held that the writ petitions were maintainable and that there was a prima facie case of breach of natural justice. The interim relief was modified to allow the Central Government to proceed with the final findings but restrained it from acting on any notification until the final disposal of the petitions. The court emphasized the need for expeditious hearing and disposal of the petitions to avoid frustration of the statutory process.