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TMI Blog2011 (1) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... ditioning and Refrigeration and since the use of the said gas was considered unfriendly to the environment, since having Ozone depleting effect, under the Montreal Protocol of 1999, to which our country is also a signatory, it was decided that CFC shall be substituted by Hydrofiuoro Carbon Gas (HFC), a non-Ozone depleting gas and the signatory countries are required to freeze the production of CFC gas by July 1999, achieve 50% reduction of CFC production by January 2005 and completely stop use of CFC gas by January, 2010. According to the petitioner, they import HFC gas mainly from China and Japan in the form of large ISO tanks and after import, transfer the contents into low capacity tanks and distribute the same in India. 3. The first respondent is the Authority entrusted with the function and responsibility to administer the anti-dumping law in India and the second respondent is the designated authority appointed under the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, to carryout various functions under the Rules including identification of the article liable for anti-dumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition has observed and directed as follows : "6. Going by the said regulation governing the investigation, the only grievance of the petitioner herein is that without adverting to the various contentions raised therein, the provisional order has been passed. It is further stated that the complainant itself is an importer of the goods. Having regard to the serious prejudice faced and in the light of the absence of any remedial provisions as against the provisional order of the respondent, it is absolutely essential that the petitioner's interest be properly considered before any demand is made on the petitioner. 7. I agree with the submission of the learned Advocate General that having regard to the guidelines given in the Rules and the specific request made by the petitioner in their representation seeking a personal hearing in this matter, without disturbing the order, the second respondent is hereby directed to consider the objection of the petitioner in terms of the representation dated 24-9-2009 as well as 5-4-2010 by affording opportunity to the petitioner for personal hearing and pass orders thereon within a period of six weeks from today. It is also made clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Designated Authority shall take a final decision in the matter. Pending such decision, the impugned notification in No. 52/2010-Customs, dated 19-4-2010 shall not be given effect to insofar as the petitioner is concerned. Notice." 8. Thereupon, as scheduled, the public hearing was conducted on 10-5-2010. But, alleging bias and pre-determined mind by the respondents 2 and 3, the petitioner has again knocked the doors of this Court by filing W.P. No. 10709 of 2010, praying to issue a Writ of Mandamus, to direct the respondents 2 and 3 to recuse themselves from the proceedings initiated by the respondents 1 and 2 and to direct the respondents 1 and 5 to appoint an impartial officer to hear and adjudicate upon their submissions. Along with this writ petition, the petitioners have also filed M.P. No. 1 of 2010, praying to stay all further proceedings before the respondents 2 and 3 in relation to the preliminary findings dated 19-2-2010 and a learned single Judge of this Court, by the order dated 12-5-2010 has granted interim stay. 9. According to the petitioners, the learned Additional Government Pleader is very well present in the Court when this stay order came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court, when the material on record speaks otherwise that the petitioner has served the copy of stay order on the respondents, including that of the third respondent. 11. It has been submitted on the part of the respondents that since the learned single Judge, in the earlier writ petition No. 6952 of 2010, has directed to pass orders within six weeks, the third respondent has passed the order dated 21-5-2010. We are unable to appreciate and understand this argument advanced on the part of the respondents in view of the fact that no prudent man of ordinary nature will proceed further, when there is an order of stay passed in the matter. If at all, the respondents, particularly the third respondent, has entertained any doubt or thought conflicting orders (one directing to pass orders within six weeks and the other one staying the further proceedings), the respondents should have approached this Court for clarification. Instead, they have proceeded to bypass the interim order of stay passed by the learned single Judge on 12-5-2010. The third respondent is not a layman but a lawman, besides being a quasi-judicial authority vested with the powers as Designated Authority. What pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter or a domestic industry is a question of fact, which could not be ascertained on the materials placed on record, since being a complex question of fact. 14. We are quite aware that in the recent pronouncement in National Thermal Power Corporation Limited v. Mahesh Dutta and Others [(2009) 8 SCC 339], the Honourable Apex Court has held, in para No. 39 of its judgment, that- ".... There is no law denying or debarring High Court from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given I case, it may also examine witnesses." 15. But. the question involved in the matter is not a one that could be decided based on only the affidavits and counter affidavits and other documentary evidence, but a complex one to be appreciated in many angles, after appreciating the evidence to be adduced on either side. 16. The learned senior counsel appearing for the petitioner would rely on various legal decisions in support of his arguments, touchin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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