2010 (5) TMI 287 - HC - Customs

Safeguard duty - Imposition of safeguard duty for one year under Notification No. 75/2009-Cus. Assailed and same sought to be imposed for four years. Impugned notification already expired and not in force. Consumers to be burdened if liability imposed on appellant by way of bond. Interim relief as sought to result in imposition of safeguard duty without final decision thereon. Notification having been allowed to die its natural death, not possible to infuse life by judicial order. Importers not party to petition and interim order or conditions cannot bind such persons. Interim order would result in discriminatory treatment binding respondent but not importers. Question whether impugned notification issued in excise of legislative and quasi judicial powers cannot be determined at interim stage. Interim relief declined.

Issues Involved:
1. Validity of Notification No. 75/2009-Customs dated 30th June, 2009 imposing safeguard duty for a limited period.
2. Petitioners' claim for extending safeguard duty period to four years.
3. Interim relief sought by petitioners.
4. Legality of issuing writ of mandamus to the Central Government.
5. Delay in approaching the court and its implications.
6. Non-joinder of necessary parties.
7. Bona fides and technical defects in the petition.

Detailed Analysis:

1. Validity of Notification No. 75/2009-Customs dated 30th June, 2009:
The petition challenges the Notification No. 75/2009-Customs, which levied safeguard duty on imports of Phthalic Anhydride (PAN) from 29th January, 2009 to 31st December, 2009. The petitioners argue that the notification should have been operative for four years as per Section 8B(4) of the Customs Tariff Act, 1975.

2. Petitioners' Claim for Extending Safeguard Duty Period:
The petitioners assert that the Central Government must impose safeguard duty for the entire period of four years based on the final findings of the Director General (Safeguards) dated 28th May, 2008. They argue that the Central Government erroneously exercised its discretion by limiting the safeguard duty to one year, contrary to the spirit of the Safeguard Duty Rules.

3. Interim Relief Sought by Petitioners:
The petitioners seek interim directions allowing the import of PAN subject to provisional safeguard duty collection. They argue that they have made a prima facie case and that the balance of convenience and injury suffered justify interim protection. However, the court notes that interim relief requires a prima facie case, irreparable injury, and balance of convenience, which the petitioners failed to establish convincingly.

4. Legality of Issuing Writ of Mandamus to the Central Government:
The respondents argue that a writ of mandamus cannot compel the Legislature or Executive to enact or modify legislation. The notification in question is a result of legislative power exercised by the Central Government, and thus, no writ of mandamus can direct the Central Government to issue a notification in line with the Director General (Safeguards) recommendations.

5. Delay in Approaching the Court:
The respondents highlight that the petitioners delayed approaching the court until the notification was about to expire. This delay suggests a lack of urgency and undermines the petitioners' claim for interim relief. The court agrees that the petitioners should have acted promptly and that the delay impacts their entitlement to interim relief.

6. Non-Joinder of Necessary Parties:
The respondents point out that the petitioners failed to include the importers named in the Director General (Safeguards) recommendations as parties to the petition. This omission is critical as any interim order would affect these importers, thus making the petition technically defective. The court concurs that the absence of necessary parties is a significant flaw.

7. Bona Fides and Technical Defects in the Petition:
The respondents argue that the petitioners' shifting stance and the lack of a list of association members make the petition technically defective. The court agrees that these defects are fatal to the petition's survival and that the petitioners' bona fides are questionable.

Conclusion:
The court concludes that the petitioners have not made a sufficient case for interim relief. The notification has already expired, and it is not possible to revive it through a judicial order at the interim stage. The petitioners' delay, non-joinder of necessary parties, and technical defects further weaken their case. Consequently, the court rejects the prayer for interim relief but expedites the hearing of the petition, directing the parties to complete their pleadings within eight weeks.

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