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2018 (3) TMI 878 - HC - CustomsVires of para 7 of Annexure-1 of the Anti- Dumping Rules - Section 9A of the Customs Tariff Act, 1975 - direction to not levy antidumping duty charged on the graphite electrode imported from China. Held that - In the opinion of this court, the question cannot be considered as it would be affording the Petitioner a fresh round to litigate the self same cause of action. - The Petitioner is a corporation; one of the largest public sector companies, no less. It was well aware about the applicable law; especially the impugned Para 7 of Annexure I to the Anti Dumping Rules. Yet, in the previous round of litigation, it did not urge about the alleged ultra vires of the said rule; it could well have urged it, at least as a contention. Res judicata and constructive res judicata are well recognized principles that the courts in India follow, to screen out multifarious litigation by the same parties on the same issue. In the present case, there is no dispute that the Petitioner had sufficient opportunity to challenge the provisions it impugns here. Therefore, its failure to do so, now results in this court s exercise of discretion not to entertain the challenge on substantive basis. The Anti-Dumping Rules cannot be impugned as contrary to the larger purpose and spirit of anti-dumping law; a determining requirement in deciding the legitimacy of sub-ordinate legislation - the Petitioner s submission that the determination of normal value as provided in para 7 of Annexure-1 read with Rule 10 of the Anti-Dumping Rules is ultra vires section 9A of the Custom Tariff Act 1975 is invalid. Petition dismissed.
Issues Involved
1. Validity of Paragraph 7 of Annexure-1 of the Anti-Dumping Rules. 2. Imposition of anti-dumping duty on graphite electrodes imported from China. 3. Determination of "normal value" under Section 9A of the Customs Tariff Act. 4. Application of the principle of res judicata and constructive res judicata. 5. Examination of the vires of subordinate legislation. Detailed Analysis 1. Validity of Paragraph 7 of Annexure-1 of the Anti-Dumping Rules The petitioner questioned the validity of Paragraph 7 of Annexure-1 of the Anti-Dumping Rules, arguing it was ultra vires Section 9A of the Customs Tariff Act. The court noted that the petitioner had ample opportunity to challenge this provision in earlier proceedings but failed to do so. The principle of res judicata was applied, preventing the petitioner from re-litigating the same issue. The court emphasized that subordinate legislation must be read within the larger meaning of the parent statute, and found no inconsistency between the Anti-Dumping Rules and the Customs Tariff Act. 2. Imposition of Anti-Dumping Duty on Graphite Electrodes Imported from China The petitioner challenged the imposition of anti-dumping duty on graphite electrodes imported from China, asserting that the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) incorrectly assessed the duty. The Supreme Court had previously examined this issue and upheld the findings of the Designated Authority and CESTAT, concluding that the anti-dumping duty was correctly imposed based on a thorough determination process. 3. Determination of "Normal Value" Under Section 9A of the Customs Tariff Act The petitioner argued that the determination of "normal value" as provided in Paragraph 7 of Annexure-1 read with Rule 10 of the Anti-Dumping Rules was ultra vires Section 9A of the Customs Tariff Act. The Supreme Court had already validated the method used by the Designated Authority to determine the normal value of graphite electrodes in China, comparing it with the export price. The court found no infirmity in this process and ruled that the determination of normal value was consistent with the parent statute. 4. Application of the Principle of Res Judicata and Constructive Res Judicata The court applied the principles of res judicata and constructive res judicata to prevent the petitioner from re-litigating the same issue. The petitioner, being a large public sector company, was well aware of the applicable law and had the opportunity to challenge the provisions during the initial litigation. The failure to do so barred the petitioner from raising the same issue in a new petition. 5. Examination of the Vires of Subordinate Legislation The court examined whether the subordinate legislation (Anti-Dumping Rules) conformed to the parent statute (Customs Tariff Act). It cited various precedents, including *Commissioner of Central Excise & Customs v. Venus Castings (P) Ltd.* and *State of Tamil Nadu v. P. Krishnamurthy*, to highlight that subordinate legislation must align with the purpose and scheme of the enabling Act. The court found no lack of legislative competence, violation of fundamental rights, or repugnancy to the laws of the land in the Anti-Dumping Rules. Conclusion The court dismissed the petition, holding that the Anti-Dumping Rules were not ultra vires the Customs Tariff Act. It reaffirmed the imposition of anti-dumping duty on graphite electrodes imported from China and validated the method used to determine the normal value. The principles of res judicata and constructive res judicata were applied to prevent the petitioner from re-litigating the same issue. The court found no inconsistency between the subordinate legislation and the parent statute, thereby upholding the validity of the Anti-Dumping Rules.
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