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TMI Blog2010 (5) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent. [Order]. - P.C. : The facts : This petition filed under Article 226 of the Constitution of India is directed against the Notification No. 75/2009-Customs, dated 30th June, 2009 levying safeguard duty for imports for the period 29th January, 2009 to 31st December, 2009 at the rates mentioned in the said Notification. 2. The petitioners are claiming to be domestic purchasers of Phthalic Anhydride ("PAN" for short) and that they have suffered serious injury on account of import of said items by the importers. They claimed to have approached the Director General (Safeguards) as per the provisions of Safeguard Duty Rules framed under the Customs Tariff Act, 1975. The Director General (Safeguards) has recorded its final findings vide Notification dated 28th May, 2009 indicating necessity of imposing safeguard duty on imports of PAN into India. 3. In exercise of powers conferred by Sub Section (1) of Section 8B of the Customs Tariff Act, 1975 read with Rules 12, 14 of the Rules 1997, after considering the findings of Director General (Safeguards), duty was imposed on PAN falling under tariff item 2917 35 00 of the First Schedule of the said Act when imported into I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffered serious injury caused by the sudden and sharp increase in imports of PAN. 7. Mr. Sridharan further submits that having found that serious injury was caused to the domestic purchasers by Director General (Safeguards), it was obligatory on the part of the Central Government to levy safeguard duty. It is, thus, argued that the impugned Notification is pulpably erroneous and is liable to be made operative for a further period of three years. Reliance is placed on Rule 4, 11 coupled with some other Rules relevant to the issue involved. He submits that the petitioners are entitled for interim protection during the pendency of the petition since they have made out prima facie case and balance of convenience in their favour and also demonstrated injury which they are suffering. 8. Per contra, Mr. R.V. Desai, learned Senior Counsel appearing for the respondents strongly urged that Writ of Mandamus cannot be issued to Legislature to enact a particular Legislation, though same is also true as regard to the Executive since the exercise of power to make Rules or issue notification are in the nature of subordinate Legislation. According to him, the Notification No. 75/2009-Customs, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aused in approaching this Court was a deliberate act on the part of the petitioners, as such, the petitioners are not entitled to interim relief as prayed. 13. Mr. Rai further submits that the recommendations made by the Director General (Safeguards) categorically records the names of the importers in paragraph No. 2 of its recommendations. As many as eight importers are named therein but none of them is made party to the petition. According to him, all of them are importers and behind their back, no order much less interim order can be passed by this Court directing them to give an undertaking to protect the interest of the Revenue or to protect the interest of the importers. On this count, he submits that the petition is liable to be dismissed for non joinder of necessary parties. According to him, it was necessary for the petitioners to join them as party respondent to the petitioners. He further submits that so far as respondent No. 5 is concerned, it is an association of manufacturers, whereas respondent No. 6 is a Federation. Similarly, respondent No. 9 is a Chemical Industries Association. He, thus, submits that no list of members is to be found in the petition, as such it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the event the petition is dismissed, then they will not suffer any prejudice. He, thus submits that the interim relief, as prayed, if granted, it will not cause any prejudice or injury to either of the parties to the petition. Consideration : 18. Having heard learned Counsel for the parties, it is necessary to consider the parameters of grant of interim relief. The grant or refusal to grant of interim relief in the complaint is covered by three well established principles viz. (i) whether the complainant has made out a prima facie case; (ii) whether the complainant would suffer irreparable injury in absence of interim relief; and (iii) whether the balance convenience lies in his favour. The burden to prove these three necessities lies on the person seeking interim relief. Interim relief is not granted to a party guilty of delay or who has indulged in suppression of facts. The person seeking interim relief must approach the Court with clean hands. The Court has to see whether the claim is bona fide and whether there is a fair and substantial question to be tried. 19. In arriving at the balance of convenience, the Court has to weigh the mischief likely to be caused to the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed on importers. The imports can attract safeguard duty only in the event fresh Notification is issued by the Central Government in that behalf or in the event, after adjudication, this Court comes to the conclusion that the Notification ought to have been for a period of four years and that there was no power for the Central Government to issue Notification for a period of less than four years. Unless either of these two events takes place, the importers cannot be subjected to safeguard duty. The petitioners, therefore cannot contend that as on date they are exercising their right, which the law recommends. Their right is only to approach this Court to invoke writ jurisdiction of this Court and seeking adjudication thereof. Except this, as on date, there is no any subsisting right in favour of the petitioners. 22. Let us assume for the sake of arguments, that this Court grants interim relief subject to the condition that the importers should execute bond agreeing therein to pay safeguard duty in the event petition succeeds. The moment bond is executed, the importers shall incur contingent liability. Once the contingent liability is made to hang on their head, they are bound t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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