9911796707
TMI Blog2011 (12) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... ings were perhaps not even open to challenge by the Central Government - Held that: the Central Government has taken into consideration various factors and come to the conclusion that it is not in public interest to impose Anti-dumping duty - Decided against the petitioner - Special Civil Application No. 12142 of 2011, Civil Application No. 13201 of 2011 - - - Dated:- 29-12-2011 - Akil Kureshi and Sonia Gokani , JJ. For Appellant: Mr Devan Parikh, Sr Adv with Mr Kunal Nanavati for Nanavati Associates For Respondent: Mr P S Champaneri, Mr Hriday Buch, Ms Manisha Lavkumar, Mr Seetharaman Sr Adv with Mr Anand Nainawati With Ms Madhu Jain and Mr K B Paneri JUDGEMENT Per : Akil Kureshi: 1. The petitioner has prayed for issuance of a writ or order in the nature of mandamus directing the Ministry of Finance to accept the recommendations of the Designated Authority issued vide notification dated 20.1.2011, as also to accept the recommendations of the Ministry of Chemicals and Fertilizers and consequently, to issue a notification imposing Anti-dumping duty on the imports of certain goods. 2. Briefly stated facts are as under: 2.1 The petitioner is a Company regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India has decided not to impose duty and the recommendations of the DA are not accepted. Upon such development, Special Civil Application No.5078 /2011 was disposed of vide order dated 14.6.2011 leaving it open to the petitioner to pursue its remedies as available under the law. Thereupon the petitioner has filed this fresh petition for the prayers noted earlier. 3. In essence, grievance of the petitioner is that despite clear findings by the DA and recommendations for imposition of Anti-dumping duty, Central Government has refused to impose such duty without proper reasons. It is also the case of the petitioner that the Ministry of Chemicals and Fertilizers whose opinion was sought by the Ministry of Finance had also made a strong recommendation for imposition of Anti-dumping duty. Ministry of Chemicals and Fertilizers had outlined its reasons for such recommendations. The Union of India acting through the Ministry of Finance, disregarding the findings and recommendations of DA and also recommendations of Ministry of Fertilizers and Chemicals, without any valid basis refused to impose Anti-dumping duty. This in short is the controversy arising in this petition. 4. We m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India from the subject country (ies) (China PR and Mexico for Pen-G and China PR for 6 APA respectively) below their normal values. (b) The domestic industry for both the products under consideration has suffered material injury. (c) The injury has been caused by the dumped imports of subject goods (Pen -G and 6 APA) from the subject country (ies). I Indian industry's interest other issues 113. The Authority notes that the purpose of anti-dumping duties, in general, is to eliminate injury caused to the Domestic Industry by the unfair trade practices of dumping so as to re-establish a situation of open and fair competition in the Indian market, which is in the general interest of the Country. Imposition of anti-dumping measures would not restrict imports from the subject country (ies) in any way, and, therefore, would not affect the availability of the products to the consumers. 114. It is recognized that the imposition of anti-dumping duties might affect the price levels of the products manufactured using the subject goods and consequently might have some influence on relative competitiveness of these products. However, fair competition in the Indian m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any combination other than mentioned in Sr. nos.1 above 2.17 BOU USS 3 29411010 - do - China PR Any country other than subject countries Any Any 2.17 BOU USS 4 29411010 - do - Any country other than subject countries China PR Any Any 2.17 BOU USS 5. In response to the notice issued by us, the Union of India has appeared and on its behalf an affidavit dated 23.9.2011 has been filed opposing the petition and prayers made by the petitioner. It is stated that after publication of the final findings, respondent no.1 received numerous representations against the imposition of Anti-dumping duty. The issue was examined, particularly with focus on following issues: 'Insufficient domestic supply of the subject goods in view of the domestic demand. Domestic industry is not able to meet the demand of more than 8 to 10% of the total requirement. The likely impact on the price of the formulations in view of the imposition of anti-dumping duty on the subject goods, triggering burden to antibiotic manufactures. The interest of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion if any enjoyed by the Central Government was severely restricted looking to the nature and purpose of Anti-dumping duty and its impact on domestic industry. Counsel submitted that though Rule 18 uses word 'may', same should be read as 'shall' in view of the scheme or the provisions for collection of Anti-dumping duty. It was the contention of the counsel that considering the purpose for collection of Anti-dumping duty and the provisions made in this regard, it would emerge that the Legislature casts a certain mandate on the Central Government to impose Anti-dumping duty to remove the injury when DA comes to the conclusion that there is dumping and that such dumping causes injury to the domestic industry. Counsel submitted that the purpose of imposition of Anti-dumping duty is not collection of revenue but to provide a level-playing field and to protect and guard the domestic industry against unfair trade practice. Counsel submitted that when an exporter undercuts the price of its product and sells at a price lower than the cost of manufacturing or sale price in the country of its origin, such practice damages and hampers the domestic industry. A strong case of protection wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government having proceeded on same factors which were already taken into account by the DA, could not have rejected the recommendations of the DA. Counsel submitted that the DA under the Rules was acting for and on behalf of the Central Government and not as its agency. In that view of the matter, findings recorded by DA were binding to the Central Government. Once it is found that such findings were arrived at on behalf of the Central Government, the recommendations of DA on the basis of such findings could not have been rejected without there being independent or additional factors. Counsel vehemently contended that the Central Government has proceeded on the same factors which were already taken into account by DA to recommend imposition of Anti-dumping duty. Counsel submitted that the powers exercised by the Central Government are not Legislative and can only at best be described as quasi judicial. In this regard, reliance was placed on the decision of Apex Court in case of Reliance Industries Ltd. v. Designated Authority and others reported in (2006) 10 Supreme Court Cases 368 , wherein it was observed as under : '38. We are of the opinion that the nature of the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention cannot be upheld in view of the decision of Apex Court in the case of Reliance Industries Limited V/s. Designated Authority, 2006 (2002) ELT 23 (SC) wherein, while disagreeing with the Tribunal that the notification of the Central Government under Section 9A is a legislative Act, the Apex Court held that it is clearly quasi-judicial. The proceedings before the Designated Authority are to determine the lis between the domestic industry on the one hand and the importer of foreign goods from the Foreign supplier on the other. The determination of the recommendation of the Designated Authority and the Government notification on its basis is subject to an appeal before the CESTAT . This also makes it clear that the proceedings before the Designated Authority are quasi-judicial." (8.2) Counsel also relied on decision of Apex Court in case of Rishiroop Polymers Pvt. Ltd v. Designated Authority Addl. Secretary reported in 2006 (196) E.L.T. 385(S.C.), in which the provisions of the Rules came up for consideration before the Apex Court and it was observed as under : '36. It is of vital importance to note that in the initial imposition of duty, the appellant has accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o motu review or by the applicant seeking review. In the present case, the review had been initiated by the Designated Authority. Neither the Designated Authority nor the appellant had placed any material on record which could possibly displace the findings given by the Designated Authority at the stage of initial anti-dumping duty. In the absence of any new material, the Designated Authority is not required to apply afresh all parameters or criteria enumerated in para (iv) of Annexure-II, which had already been done at the initial stage of imposition of anti-dumping duty. There is no material on record to show that there was a change in the parameters or the criteria relating to the injury which would warrant withdrawal of antidumping duty. Nevertheless, the Designated Authority has still analysed the issue of injury in detail in the Mid Term Review findings and has considered all the criteria or parameters enumerated in Annexure-II. There is, therefore, no merit or substance in the appellant's contention regarding non-compliance with Annexure-II.' (8.3) Counsel submitted that imposition of Anti-dumping duty does not prohibit imports. It only eliminates artificial price under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a foreign manufacturer sells below the normal value in order to destabilize domestic manufacturers. Dumping, in the short term, may give some transitory benefits to the local customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run." 8. Learned counsel Shri Hriday Buch appearing for the Union of India opposed the petition. Relying on the affidavit in reply filed on behalf of the respondent no.1 and the other materials at his command, he submitted that Rule 18 of the Rules only uses the expression 'may'. The Central Government, therefore, has discretionary powers to impose or not to impose Anti-dumping duty even when it is so recommended by the DA. He submitted that the recommendations of DA are not binding. 9.1 Counsel submitted that DA is primarily concerned with ascertainment of dumping if any, causal link of such dumping on domestic industry and margin of injury. While examining the recommendations of DA, Central Government has to take into account various other factors of public interest. If in a given set of facts, it is found that despite the occasion of dumping, duty is not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fibre Industry v. J.K . Industries Ltd. reported in 2006 (199) E.L.T . 196 (S.C.) ) , wherein the Apex Court observed that on the final findings that DA may submit, the Central Government may take its own decision on such findings in accordance with law. 9.5 Counsel also relied on decision of Division Bench of this Court in case of Surefaces Plus v. Union of India reported in 2004 (173) E.L.T. 127 (Guj.), wherein it was observed that the preliminary finding which is of a recommendatory nature is required to be considered by the Central Government for the purpose of deciding the question of imposing provisional Anti-dumping duty. 9.6 Counsel also relied on decision in case of Deepak Fertilizers and Petrochem v. Designated Authority reported in 2006 (203) E.L.T. 370 (Del.) wherein Division Bench of Delhi High Court observed that DA under Rule 3 only assists the Central Government in making the determination and its recommendation is not binding on the Central Government as held by the Apex Court in case of Saurashtra Chemicals Ltd. (supra). 9.7 Counsel also relied on decision of the Rajasthan High Court in case of J.K . Industries Ltd. v. Union of India reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are not facing such a situation as arisen either in the case cite first supra or second supra. As already stated above, Article 348(2) of the Constitution of India enables the Governor of a State, to authorise the use of the Hindi language or any other language in addition to English even in the High Court, and if such enabling provision is exercised, it may be that the language other than English can be put to use. But in the absence of any such notification, nobody can demand to exercise such power to issue such notification. It is for the authorities empowered under Article 348(2) of the Constitution of India to exercise such power and it is well settled law that the High Court will not legislate the matter and issue such a direction as sought for in this writ petition, for exercise of such power, which is legislative in nature. We therefore dismiss the writ petition." b) M/s. Narinder Chand Hem Raj and others v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and others reported in 1971(2) Supreme Court Cases 747 , wherein it was held that : '7. Simla was a part of Punjab till reorganization of Punjab in 1966. Simla and two other Districts of the former S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The relief as framed by the appellant in his writ petition does not bring out the real issue calling for determination. In reality he wants this Court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B. Art. 265- of the Constitution lays down that no tax can be levied and collected except by authority of law. Hence the levy of a tax can only be done by the authority of law and not by any executive order unless the executive is specifically empowered by law to give any exemption, it cannot say that it will not enforce the law as against a particular person. No court can give a direction to a Government to refrain from enforcing a provision of law. Under these circumstances, we must hold that the relief asked for by the appellant cannot be granted." c) Counsel also relied on decision of Rajasthan High Court in case of J.K . Industries Ltd. (supra) for the same purpose. 10. Having thus heard learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (6); (c) 'normal value', in relation to an article, means- (i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either- (a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under subsection(6): Provided that in the case of import of the article from a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the antidumping duty liable to be levied, the Central Government may, by notification in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstanding any thing contained in any other law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1961. Section 9C reads as under : '9C . (1) An appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (hereafter referred to as the Appellate Tribunal). [(1A) An appeal under sub-section (1) shall be accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the Appellate Tribunal ,- (a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose;or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees.] (2) Every appeal under this section shall be filed within ninety days of the date of order under appeal: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans- (i) the comparable price, in the ordinary course of trade, for the like article when destined* for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either- (a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub-section (6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under subsection(6): Provided that in the case of import of the article from a country other than the country of origin and where the article has been me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the antidumping duty liable to be levied, the Central Government may, by notification in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstanding any thing contained in any other law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (hereafter referred to as the Appellate Tribunal). [(1A) An appeal under sub-section (1) shall be accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the Appellate Tribunal ,- (a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose;or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees.] (2) Every appeal under this section shall be filed within ninety days of the date of order under appeal: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport of any article; (b) to identify the article liable for anti-dumping duty; (c) to submit its findings, provisional or otherwise to Central Government as to- (i) normal value, export price and the margin of dumping in relation to the article under investigation, and (ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries. (d) to recommend the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, and the date of commencement of such duty; and (e) to review the need for continuance of anti-dumping duty.' Rule 5 pertains to initiation of investigation and provides inter-alia that DA shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry except for the goods covered under sub- rule(4) which permits the DA to initiate such investigation suo motu . Rule 6 of the Rules pertain to prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. (6) The designated authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. (7) The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. (8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances.' Rule 10 pertains to determination of normal value, export price and margin of dumping and reads as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he designated authority may suspend or terminate an investigation if the exporter of the article in question, - (i) furnishes an undertaking in writing to the designated authority to revise the prices so that no exports of the said article are made to India at dumped prices, or (ii) in the case of imports from specified countries undertake to revise the prices so that injurious effect of dumping is eliminated and the designated authority is satisfied that the injurious effect of the dumping is eliminated: Provided further that the designated authority shall complete the investigation and record its finding, if the exporter so desires, or it so decides. (2) No undertaking as regards price increase under clause (ii) of the sub-rule (1) shall be accepted from any exporter unless the designated authority had made preliminary determination of dumping and the injury. (3) The designated authority may, also not accept undertakings offered by any exporter, if it considers that acceptance of such undertaking is impractical or is unacceptable for any other reason. (4) The designated authority shall intimate the acceptance of an undertaking and suspension or termi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months: Provided further that in those cases where the designated authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year, (b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry. (2) The final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information regarding- (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the product which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) Considerations relevant to the injury determination; and (v) the main reasons leading to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the export prices of exporters or producers not individually examined: Provided that the Central Government shall disregard for the purpose of this sub-rule any zero margin, margins which are less than 2 per cent expressed as the percentage of export price and margins established in the circumstances detailed in sub-rule (8) of rule 6. The Central Government shall apply individual duties to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation as referred to in the second proviso to sub-rule (3) of rule 17. (3) Notwithstanding anything contained in sub-rule (1), where a domestic industry has been interpreted according to the proviso to sub-clause (b) of rule 2, a duty shall be levied only after the exporters have been given opportunity to cease exporting at dumped prices to the area concerned or otherwise give an undertaking pursuant to rule 15 and such undertaking has not been promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question. (4) If the final finding of the designated authority is neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs for ascertaining the question of dumping such as assessment of normal value of an article, margin of dumping and assessment and collection of Anti-dumping duty, are functions to be performed by the Central Government under Section 9A of the Customs Tariff Act. 14. Rule 3 of the Rules pertain to appointment of DA. Rule 4 prescribes duties of the DA under which DA has to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article and to identify the article liable for anti dumping duty. DA has to submit its findings provisional or otherwise as to normal value, export price and the margin of dumping in relation to article under investigation and injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article. Clause(d) of sub-rule(1)of Rule 5 requires the DA to recommend the amount of Anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry and also the date of commencement of such duty. 15. Thus the essential question of ascertaining various factors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter, the findings of DA with respect to such issues may not be open to question by the Central Government. However, in our opinion this is not the same thing as to suggest that even the recommendations of DA are binding on the Central Government. This aspect we would discuss at a later stage. 19. At this stage, we would like to dwell at some length on the question of nature of powers exercised by the Central Government. 20. As noted earlier, in case of Haridas Exports (supra), three Judge Bench of the Apex Court observed that levy or non-levy of anti-dumping or other duty being a legislative act pursuant to the exercise of powers under the Customs Tariff Act cannot be a subject-matter of judicial review by the MRTP Commission. These observations cannot be seen as a mere passing remark as suggested by the Counsel for the petitioner. It is of-course true that case on hand before the Apex Court did not pertain to imposition or otherwise of Anti-dumping duty. However, the Apex Court was examining whether in view of the provisions contained in the Customs Tariff Act and Rules made therein, the Monopolies and Restrictive Trade Practices Commission could be stated to have been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in case of Automotive Tyre Manufacturers Asson . (supra). However, the Apex Court did not find it necessary to conclude this issue. It was observed : "48. Thus, the first and foremost question for adjudication is the nature of proceedings before the DA appointed by the Central Government under Rule 3 of the 1995 Rules for conducting investigations for the purpose of levy of anti-dumping duty in terms of Section 9A of the Act. To put it differently, the question is whether the decision of the DA is legislative, administrative or quasi-judicial in character? However, for the purpose of the present case, we shall confine our discussion only to the question as to whether the function of the DA is administrative or quasi-judicial in character as Mr. Rawal , learned counsel appearing for the DA had finally conceded before us that it is not legislative in nature." 24. We may notice that Division Bench of Rajasthan High Court in case of J.K . Industries Ltd. (supra) held that the Central Government exercises legislative function and observed as under : "142. The nature of delegation legislation as is contemplated Under Section 9A squarely falls in the category of condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous, the imposition of duty may fail on that count. This is not the same thing as to suggest that before the Tribunal decision of the Central Government of issuance of notification of imposition of Anti-dumping duty would be at large. If the functions of the Central Government is held to be a legislative function, as is well settled, no writ could be issued to enact a law. In the present petition, however, we are not inclined to come to any final opinion on this issue. Observations made above therefore, may not be understood as our final opinion on the issue. 28. For the purpose of the present petition, however, we are inclined to accept the version of the petitioner that such powers are quasi judicial in nature and that therefore, writ petition would be maintainable. Question however, is whether in the facts of the case, interference is called for. This would bring us to two questions. Firstly, whether the recommendations of DA are binding on the Central Government and secondly, if not, whether the Central Government had sufficient reasons to exercise its discretion and refuse to impose Anti-dumping duty, despite strong recommendations by the DA and support from the Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factors connected therewith. Number of other questions of larger public interest such as possible impact of Anti-dumping duty on other industries, on consumption, on supply, etc. of such articles may not possibly be within the purview of DA while carrying out investigation envisaged under the Rules. It can however, not be stated that the Central Government should be oblivious of all such factors and once through mathematical exercise, task of ascertaining extent of dumping and causal injury to the domestic industry is completed, necessarily to such extent, Anti-dumping duty must follow. Any such proposition would be putting the Central Government into too straitjacket a situation wherein on a mere ascertainment of dumping and its impact on domestic industry, the Government in all cases invariably be bound to impose duty irrespective of fact that such imposition may for valid reasons found to be not in public interest. 32. As already noticed, several Courts have opined that the recommendations of the DA are not binding on the Government. In case of Saurashtra Chemicals Ltd. (supra), Apex Court has taken such a view. This decision was followed in case of Association of Synthetic F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the delegate of the Parliament to impose in given circumstances Anti Dumping Duty not exceeding the margin of dumping." Similar view is also taken by the Delhi High Court in case of Deepak Fertilizers and Petrochem (supra). This Court also in case of Surefaces Plus (supra), was of the opinion that preliminary findings by DA are recommendatory in nature. 32. Such being the legal position, we would have to deal with second question namely, whether the Central Government had sufficient reasons not to impose duty despite recommendations made by the DA. We have already noticed the conclusions of DA while recommending Anti-dumping duty. Insofar as question of dumping, its margin and its impact on domestic industry are concerned, there is no dispute. Question is, despite such findings, was it open for the Central Government to refuse to impose the Anti-dumping duty. The reasons for such decision have been briefly stated in the affidavit in reply to which we have referred to in the earlier portion of the judgement . The Central Government was of the opinion that there was insufficient domestic supply of the subject goods keeping in mind the domestic demand. Domestic industry was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 15365 thousand BU. In the case of 6APA , the total capacity of manufacture of 6- APA by the domestic industry is 600 thousand BU, against the demand of 4931 thousand BU. 13. In view of fact that formulations of penicillin are basic antibiotics and the fact that user industry may face difficulties to cope with the additional burden, particularly in view of the insufficient domestic supply of the subject goods, it is proposed that we may seek opinion from Department of Pharmaceutical, Ministry of Chemicals Fertilizers about the imposition of anti dumping duty on the subject goods." The Joint Secretary on 13.4.2010 made further notings : 2. In this case provisional anti dumping duty has been recommended by the Designated Authority(DA) on Penicillin-G and 6- APA both of which are drug intermediates for the manufacture of basic antibiotics. As pointed out in the notings of US(TRU) dated 05.04.2010, the issues raised by several domestic manufactures of the final drugs using these intermediates regarding the legal infirmities in the findings have been satisfactorily explained by the DA. As such, the findings are acceptable from a legal standpoint. 3. However, unlike o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... US(TRU). As pointed out by him, these are large considerations to be kept in view and it would not be advisable to levy anti-dumping duty." 34. Thereupon, the final decision was taken and the Central Government refusing to impose provisional duty, upon DA submitting his final findings, entire issue was considered by the Central Government. One Prashant Kumar Jha , Officer on Special Duty in his notings dated 10.3.2011 after taking detailed note of the final findings of the DA and his recommendations, noted as under : '6. Findings and observations of the DA on the points raised by the various parties (a) Like article : In terms of Rule 2(d), defining 'like article' for both the domestic like products separately, it is noted by DA that there is no known difference in subject goods produced by the Indian industry and exported from subject country(ies). The subject goods produced by the Indian industry and that imported from subject country(ies) are comparable in terms of characteristics such as physical chemical characteristics, manufacturing process technology, functions uses, product specifications, pricing, distribution marketing and tariff classification of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... downstream goods following the imposition of duty, it is noted that imposition of anti dumping duty might have some impact on the prices of the product. However, fair competition will not be reduced as a result of imposition of anti dumping duty. The Authority has further noted the claim of the domestic industry that selling prices of Penicillin-G cannot exceed the limits laid down by the Government of India. (e) As regards the argument that imposition of anti-dumping duties would lead to intensified competition between the Indian and Chinese Pharma industry, the DA has noted that the argument is fully unsubstantiated and irrelevant to the present investigation (h) With regard to evidence of price adjustment and level of trade in determining dumping margin, it is noted that the petition contained information best available to petitioners. The DA has, however, now adopted information after due verification of information submitted by the exporters and other interested parties in determining dumping margins. It is noted that the petition filed by the domestic industry contained information about causal link analysis. Further, the petitioner claimed that none of the other factors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 6 APA iii. Additional cost burden on the user Bulk Drug Manufacturers which would be passed to formulation/medicine manufactures. 9. The matter has been examined. It may also be recalled that the provisional findings were not accepted by the Central Government in the larger public interest (Page 2- 14n /s.). Even under the final findings, such concerns which are still germane to our decision of accepting or otherwise of the final findings have remained unaddressed. They are as under : " Insufficient domestic supply of the subject goods in view of the domestic demand. Domestic industry is not able to meet the demand of more than 8 to 10% of the total requirement. The likely impact on the price of the formulations in view of the imposition of anti-dumping duty on the subject goods, triggering burden to antibiotic manufactures. The interest of the domestic industry in this case two units, M/s. Alembic Limited, Vadodara and M/s. Southern Petrochemical Industries Corporation Ltd. should not outweigh the interest of the bulk drug manufactures. Imposition of duty would cause significant disadvantage to the consumer. Imposition of duty would cause significant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic interest to impose Anti-dumping duty despite the recommendations made by the DA. 35. We are conscious that DA had come to certain conclusions which were not disputed by the Central Government. Insofar as factual findings are concerned, such findings were perhaps not even open to challenge by the Central Government. We are also conscious that the Ministry of Finance had made Reference to the Ministry of Chemicals and Fertilizers to opine on the issue of imposition or otherwise of Anti-dumping duty. Such Ministry had made a strong case of imposition of duty. One of the grounds was that public sector undertaking i.e. HLL could be revived if such duty is imposed and much of the need of the domestic market can be supplied. We are also conscious of the contention of the counsel for the petitioner that on the very same ground on which the DA recommended imposition of Anti-dumping duty, Central Government could not have refused to do so. We are also conscious of the contention that the Courts have observed that imposition of Anti-dumping duty may have temporary adversary impact on certain factors, which will not be grounds for interfering with such decisions. However, in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the public interest. The Court should not ordinarily interfere with policy decisions, unless clearly illegal. 40. Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. The impugned policy parameters were fixed by experts in the Central Government, and it is not ordinarily open to this Court to sit in appeal over the decisions of these experts. We have not been shown any violation of law in the impugned notification or Press Note. 41. The power to lay policy by executive decisions or by legislation includes power to withdraw the same unless it is by mala fide exercise of power, or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is an executive or legislative poli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
