2018 (1) TMI 228 - HC - Customs

Maintainability of petition - statutory alternative remedy of appeal - Section 9-C of the Customs Tariff Act, 1975 - imposition of anti circumvention duty - interpretation of statute - Held that - sub-section (1A) to Section 9A of the Tariff Act permits imposition of anti-circumvention duty also when imports take place into India in any other manner, whereby, the anti dumping duty so imposed is rendered ineffective - Review provided under Article 226 of the Constitution is an extraordinary remedy and the High Courts do not, as a matter of discretion, entertain Writ Petitions when an equally efficacious remedy is available. This principle applies especially when a machinery is created by the Statute to remedy and correct any wrong, when a right or liability is created by the same Statute, which also gives special remedy by way of appeal. The appellate remedy should not normally, and as a routine, be circumvented and bypassed. The aforesaid principle or rule is a self-imposed restriction and a restraint based on the principle of exhaustion of remedies. This ensures that the persons do not rush to the High Court for issue of a Writ, thereby rendering the statutory provisions almost meaningless and non-existent. The Courts have held that it is undesirable to lay down inflexible rules and, therefore, the dictum with reference to the pure theory of jurisdiction may have limitations and cannot be applied as a universal principle. Nevertheless, it is necessary to keep in mind the distinction between lack of jurisdiction and an alleged error in exercise of jurisdiction, i.e. a wrong or erroneous order. Parameters for interference in exercise of writ jurisdiction, inspite of alternative remedy in the two situations is different. In the former it is wider, while in the latter the Writ Court would be extra cautious and good reasons would be required to side step alternative remedy. In the context of the present case, and the submissions and counter to the same, it can, safely and without hesitation, be held that challenge is not to the lack of jurisdiction at the time of initiation but to purported failure to correctly apply the law and exercise jurisdiction. These issues can be appropriately and properly dealt with in the appellate proceedings. No special ground or reason is made out for the petitioner to ignore and to not adhere to and exercise the Statutory Appellate right. We are not inclined to entertain the present writ petition and leave it open to the petitioner to invoke the statutory remedy by way of appeal before the Appellate Tribunal - petition dismissed.

Issues Involved:
1. Whether the High Court should entertain the writ petition despite the availability of a statutory alternative remedy.
2. Validity and applicability of Rule 25 of the Anti-Dumping Rules.
3. Imposition of anti-circumvention duty on Cold Rolled Stainless Steel (CRS Steel) above 1250 mm.
4. Jurisdiction and procedural correctness of the Designated Authority's decision.

Detailed Analysis:

1. Whether the High Court should entertain the writ petition despite the availability of a statutory alternative remedy:
The primary issue was whether the High Court should exercise its discretion to entertain the writ petition despite the existence of a statutory alternative remedy under Section 9-C of the Customs Tariff Act, 1975. The petitioner argued that the writ petition should be entertained based on the exceptions carved out by the Supreme Court in *Whirlpool Corporation Vs. Registrar of Trade-marks, Mumbai & Ors.*, which include enforcement of any fundamental right, violation of principles of natural justice, proceedings being wholly without jurisdiction, and when the vires of the enactment is challenged. However, the court reiterated that the rule of exhaustion of remedies is a self-imposed restriction to prevent bypassing statutory provisions and emphasized that the appellate remedy should not normally be circumvented. The court cited multiple precedents where writ petitions challenging anti-dumping notifications were refused, reinforcing the principle that statutory remedies should be exhausted first.

2. Validity and applicability of Rule 25 of the Anti-Dumping Rules:
The petitioner challenged the constitutional validity of Rule 25 of the Anti-Dumping Rules, arguing that it was ultra vires to Section 9A (1A) of the Customs Tariff Act, 1975. The petitioner contended that Rule 25 introduced additional preconditions not present in the Act, thereby extending the scope of invoking circumvention provisions. However, the court found this challenge to be a misconception, stating that the petitioner's reliance on Rule 25 for their argument undermined their claim of it being ultra vires. The court clarified that the section permits imposition of anti-circumvention duty in any manner whereby the anti-dumping duty is rendered ineffective, thus supporting the validity of Rule 25.

3. Imposition of anti-circumvention duty on Cold Rolled Stainless Steel (CRS Steel) above 1250 mm:
The petitioner was aggrieved by the imposition of anti-circumvention duty on CRS Steel above 1250 mm, arguing that the conditions stipulated in the impugned notification were impractical and contrary to law. The petitioner highlighted that previous attempts by domestic industries to include CRS Steel above 1250 mm were rejected, and the current imposition was an indirect manner of imposing such duty. The court noted that the Designated Authority's report and the subsequent notification were subject to statutory appeal, and the issues raised by the petitioner regarding the imposition of duty could be appropriately addressed in the appellate proceedings.

4. Jurisdiction and procedural correctness of the Designated Authority's decision:
The petitioner argued that the Designated Authority's decision was incoherent and contradictory, lacking jurisdiction as the conditions for imposition of anti-circumvention duty were not satisfied. The petitioner also contended that the application for anti-circumvention duty by the fourth respondent was not maintainable as it was made during a period when anti-dumping duty was not in force. The court found that these issues pertained to the interpretation and application of law, which could be effectively dealt with in the appellate proceedings. The court emphasized that the challenge was not to the initial assumption of jurisdiction but to the exercise of jurisdiction, which is within the purview of the appellate tribunal.

Conclusion:
The High Court declined to entertain the writ petition, directing the petitioner to invoke the statutory remedy by way of appeal before the Appellate Tribunal. The court clarified that the observations made were for the purpose of deciding the writ petition and should not be construed as findings on the merits of the imposition of anti-circumvention duty on CRS Steel. The application for amendment of the writ petition was not entertained, and no order as to costs was made.

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