2018 (9) TMI 1294 - HC - Customs

Alternative statutory remedy of appeal - right to appeal against determination of dumping for imposing anti-dumping duty - Negative findings - Absence of Notification - Section 9C of the Customs Tariff Act 1975 - The writ petitioner resists and questions the plea of alternative remedy stating that the appellate remedy under Section 9C of the CT Act cannot be invoked against the termination order under Rule 14 of the Rules. Held that - Section 9C of the CT Act in the present case has to be interpreted in a manner so as not to frustrate its purpose i.e. to provide appellate remedy both in cases of order of determination and review. Accordingly it will be contrary and would be against the legislative intent to hold and interpret that there is no right to appeal under Section 9C of the CT Act when the Designated Authority does not propose imposition of anti-dumping duty. As the Central Government is bound by the final finding of the Designated Authority the final finding of the Designated Authority becomes the final finding and order of determination passed by the Central Government for the purpose of Section 9C of the CT Act - the statute i.e. Section 9C would be interpreted in a manner that it would effectuate and not frustrate the purpose of the legislation that a party should have a right of appeal against the quasi judicial determination in relation to orders determining existence degree and effect of any subsidy or dumping of articles imported into India. Section 9C does not state and provide that an appeal is maintainable against customs notification. However it refers to and states that an appeal would lie against the order of determination regarding existence degree and effect of dumping. The words existence degree and effect of dumping are significant. The final finding of the Designated Authority in the said aspect can be in positive i.e. when it recommends imposition of anti-dumping duty or may be in negative when it finds and holds that no anti-dumping should be imposed. Upon negative finding by the Designated Authority no further action is contemplated and required by the Central Government - Contention of the petitioner that the order of determination would mean notification imposing anti dumping tax and not a negative final finding of the Designated Authority under Rule 17 which is not recommendatory but the final determination is erroneous and bad in law. In case of negative determination the finding of the Designated Authority is binding it gives no discretion to the Central Government. Thereupon the determination becomes the determinative order in the sense that no anti-dumping duty can be imposed - Negative finding of the Designated Authority does not require a notification a legislative act ergo the said final finding gets stamped and approved by the Statute itself as binding decision of the Central Government. The argument of the petitioner that Section 9C postulates an appeal only against order of determination in the form of notification imposing anti dumping duty and not against the negative final finding of the Designated Authority is therefore rejected. Thus the plaintiff has equitable efficacious alternate remedy to challenge the impugned order under Section 9C of the CT Act before the Appellate Tribunal - liberty given to the petitioner to file an appeal under Section 9C of the CT Act. Petition dismissed being not maintainable.

Issues Involved:
1. Preliminary objection regarding the alternative statutory appellate remedy.
2. Legality and validity of the termination order under Rule 14 of the Customs Tariff (Anti Dumping) Rules, 1995.
3. Interpretation of Section 9C of the Customs Tariff Act, 1975.
4. Scope and ambit of the Designated Authority's power and its relationship with the Central Government.
5. Jurisdictional errors and the appropriateness of judicial review versus statutory appellate remedy.

Detailed Analysis:

1. Preliminary Objection Regarding the Alternative Statutory Appellate Remedy:
The judgment addresses the preliminary objection raised by the third respondent, M/s Fibertex Personal Care SDN BHD, arguing that the High Court should not entertain the writ petition due to the availability of an alternative statutory appellate remedy under Section 9C of the Customs Tariff Act, 1975 before the Customs Excise and Service Tax Appellate Tribunal. The petitioner contends that an appeal under Section 9C is not applicable against a termination order under Rule 14, as such orders do not constitute an "order of determination."

2. Legality and Validity of the Termination Order:
The petitioner, M/s. Jindal Poly Film Limited, challenges the termination order No.14/23/2015DGAD dated 2nd September 2017, issued by the Designated Authority. The termination order concluded that the product under consideration from the subject countries was not below its normal value except for specific companies, and there was no causal link between the imports and material injury to the domestic industry. The petitioner argues that this termination was contrary to the evidence and violated the procedural rules.

3. Interpretation of Section 9C of the Customs Tariff Act, 1975:
The court examines the scope and ambit of Section 9C, which allows appeals to the Appellate Tribunal against "orders of determination" regarding the existence, degree, and effect of dumping. The court concludes that Section 9C's scope is broad, covering any determinative and final orders by the Designated Authority. The judgment clarifies that negative findings by the Designated Authority are final and binding on the Central Government, thus constituting an "order of determination" eligible for appeal under Section 9C.

4. Scope and Ambit of the Designated Authority's Power and its Relationship with the Central Government:
The judgment delves into the statutory provisions and rules governing the Designated Authority's powers. It clarifies that the Designated Authority acts on behalf of the Central Government, making its determinations quasi-judicial in nature. The Designated Authority's negative findings are conclusive and do not require further action by the Central Government, thus forming the basis for an appeal under Section 9C.

5. Jurisdictional Errors and the Appropriateness of Judicial Review Versus Statutory Appellate Remedy:
The court addresses the petitioner's claim of jurisdictional errors and procedural violations by the Designated Authority. It emphasizes that while such issues can be subject to judicial review, the statutory appellate remedy under Section 9C is more appropriate and efficacious. The appellate forum has extensive powers to examine both facts and law, making it the preferred avenue for addressing the petitioner's grievances.

Conclusion:
The court upholds the preliminary objection, directing the petitioner to pursue the alternative statutory appellate remedy under Section 9C of the Customs Tariff Act, 1975. The writ petition is disposed of, with the court expressing hope that the Appellate Tribunal will consider the time spent in the High Court when addressing any limitation issues. The judgment underscores the importance of exhausting statutory remedies before seeking judicial review.

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