2018 (4) TMI 980 - HC - Customs

Recommendation for Imposition of safeguard duty - import of Solar Cells - validity of preliminary findings notice - Maintainability of petition - Jurisdiction of High Court to entertain the petition - Principles of Natural Justice - Held that - it cannot be contended that this Court has no jurisdiction to entertain the Writ Petition. The petitioner has also established that they are having their office at Chennai. Further, the respondents were not in a position to establish that the petitioner is not having any office at Chennai. Therefore, it cannot be stated that this Court is not having jurisdiction to entertain the present Writ Petition - the Writ Petition filed by the petitioner is maintainable before this Court. Section 8B of the Customs Tariff Act, empowers the Central Government to impose Safeguard Duty. The imposition of duty vests with the Central Government and not with the 2nd respondent. On a reading of Section 8B(1) and 8B(2), it is clear that the provisions does not contemplate taking of the views from any party and it is based on the subjective satisfaction of the Central Government and the preliminary findings given by the 2nd respondent will only constitute a material, based on which the provisional duty is imposed. The respondents themselves have stated that the duty of the 2nd respondent, with regard to the provisional Safeguard Duty as well as the definite Safeguard Duty, is only recommendatory and is not binding on the Central Government. By the impugned notice dated 05.01.2018, the 2nd respondent had made certain preliminary findings and forwarded the same to the Government. Further, in the impugned proceedings dated 05.01.2018, the 2nd respondent has stated that a public hearing will be held in due course before making a final determination, for which the date will be informed separately - no prejudice would be caused to the petitioner for the reason that they will be given opportunity to make their submission before the Authority on the issues involved in the matter. At the time of making a final determination, the petitioner s views should be obtained and an opportunity of personal hearing should be given to them to make their submissions - petition dismissed.

Issues Involved:
1. Jurisdiction and maintainability of the writ petition.
2. Violation of principles of natural justice.
3. Prematurity of the writ petition.
4. Nature and effect of the preliminary findings.
5. Compliance with statutory provisions and procedural fairness.

Issue-wise Detailed Analysis:

1. Jurisdiction and Maintainability of the Writ Petition:
The respondents argued that the writ petition was not maintainable due to the lack of jurisdiction as the petitioner did not have an office in Chennai. However, the court found that the petitioner had established an office in Chennai, thus granting jurisdiction. The court also referenced previous judgments to affirm that the writ petition was maintainable, particularly when challenging the jurisdiction of the Designated Authority or the initiation of proceedings.

2. Violation of Principles of Natural Justice:
The petitioner contended that the impugned preliminary findings notice was issued in violation of the principles of natural justice, as they were not given an opportunity to be heard before the findings were recorded. The court acknowledged the importance of the principles of natural justice, citing several Supreme Court judgments that emphasized the necessity of fair hearing and the rule of audi alteram partem (no one shall be condemned unheard). However, the court noted that the petitioner had not requested a personal hearing before the filing of the writ petition.

3. Prematurity of the Writ Petition:
The respondents argued that the writ petition was premature since the preliminary findings were merely recommendatory and no provisional duty had been imposed by the government. The court agreed, stating that the preliminary findings were only a recommendation and did not constitute a final determination. The court referenced multiple judgments, including those from the Supreme Court, which held that recommendatory orders are not subject to judicial review at this stage.

4. Nature and Effect of the Preliminary Findings:
The court emphasized that the preliminary findings issued by the 2nd respondent were recommendatory in nature and not binding on the Central Government. The court also noted that the final determination would involve a public hearing where the petitioner and other interested parties could present their views. The court cited judgments that supported the limited scope of judicial interference in matters involving preliminary findings and economic impact.

5. Compliance with Statutory Provisions and Procedural Fairness:
The court examined whether the 2nd respondent had complied with the statutory provisions under the Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997. It was found that the 2nd respondent had acted within its authority by issuing the preliminary findings and that the process did not require a personal hearing at this stage. The court also highlighted that the petitioner would have the opportunity to present their case during the final determination, ensuring procedural fairness.

Conclusion:
The court concluded that the writ petition was premature and dismissed it, stating that the petitioner would have an opportunity to be heard during the final determination. The court emphasized the limited scope of judicial interference in matters involving preliminary findings and the importance of procedural fairness in the final determination process. The writ petition was dismissed with no costs, and the connected miscellaneous petitions were closed.

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