9911796707
TMI Blog2019 (6) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... erve that para-6 of the Office Memorandum clearly betrays an unlawful and illegal examining by authority examining the orders of this court. Nothing prevented the respondents from approaching this Court or Supreme Court for obtaining appropriate orders but in absence thereof the authority themselves cannot decide not to comply with the order. Against these backdrops, we are called upon to examine the prayers made in this application. If these prayers are not granted, it would amount to permit the respondents to render petition infructuous solely on account of their omission to file reply and without adjudication, which cannot be permitted in a society wedding to rule of law. The respondents cannot be permitted to arrogate any jurisdiction and power, which they did not have to thwart and impead the operation of Court's order. The respondent no. 1 through an officer not below the rank of Secretary of the concerned department shall file an affidavit explaining as to why appropriate action be not initiated for non-compliance with the orders of this Court. NOTICE returnable on 12.6.2019. - C/SCA/5278/2019 - - - Dated:- 9-5-2019 - MR. S.R.BRAHMBHATT AND MR. V. B. MA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court be pleased to direct the Respondent Nos. 1 to 4 to ensure that subject goods that may be cleared are duly accounted for and further the importers be notified about pendency of the present petition before this Hon'ble Court and subject to the outcome of the same; D Ad-interim reliefs in terms of prayer (B) and (C) above; E Ex-partead-interim reliefs in terms of prayer (D) abvove; F For cost; and G Such other and further orders as may be considered fit and expedient in the facts of the case be passed. Thus, the challenge was laid in the petition to the Final Finding No. 7/16/2018-DGAD dated 29.01.2019 along with Disclosure Statement dated 15.01.2019 respectively. 4. Under Final Finding dated 29.1.2019, the Competent Designated Authority did not recommend the continuation of the Anti-Dumping Duty Notification on the product called Paracetamol . 5. The Court on 13.3.2019 recorded its prima-facie satisfaction qua breach of principles of natural justice on account of the facts on record and hence issued notice for final disposal making it returnable on 27.3.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime up to 22.04.2019 only. Learned counsel for the petitioner strongly opposes and apprehends that the period thereafter may not be sufficient to conduct the main matter and by efflux of time the entire matter may be rendered infructuous. In that view of the matter, we are of the view that in case if the matter is not conducted on 22.04.2019, the appropriate orders, including directing the authority to extend the anti dumping duty at least for one month period may be considered, to be issued. S.O. To 22.04.2019. 8. Then again on 24.4.2019, the Court passed the following order: 1. Ms. Vyas, learned counsel for the petitioner mentioned this matter in the morning indicating that the matter was listed on 22.4.2019 and the same was requested for posting on the next day i.e. today. Inadvertently instead of 24.4.2019 it was posted on 25.4.2019 and as there is an urgency the matter is requested to be taken up today with the intimation to all the parties and their counsels. Accordingly the Court granted permission and the matter listed today itself. 2. The learned counsel appearing for respondent No.2 states that he is in fact aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a further period upto 24.6.2019. The matter may be posted for hearing on 12.6.2019 and the parties shall exchange their pleadings, if any, in the meantime so that on 12.6.2019 the matter can be taken up peremptorily. 5. It would be open for the petitioner to serve copy of the order to the Director, Tax Research Unit, Department of Commerce, Ministry of Finance for compliance. Direct service today is permitted. The order reproduced hereinabove of 24.4.2019 contains details, which at this stage did not elaborate further. 9. The petitioners were constrained to file Civil Application (for Direction) No. 1 of 2019 in Special Civil Application No. 5278 of 2019, as in the interregnum period, it transpired that notification dated 20.8.2019, which was to enure till 26.4.2019 has been rescinded and hence, Civil Application No. 1 of 2019 was preferred, wherein, the Court passed an order on 26.4.2019, which is reproduced as under: 1. Heard learned advocates for the parties. 2. The present application has been filed for following prayers: 9(A) This Hon ble Court be pleased to quash and set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019. The Court also observed in the order of 13/03/2019 that the Court issued notice for final disposal and reply if any was expected to be filed by the returnable date. The Court had to pass the order on 11/04/2019 which reads as under: Leave to amend. On 13.03.2019, this Court passed the following order: Notice for final disposal, returnable on 27 th March, 2019. Learned counsel for the petitioner has invited our attention to the discloser statement and laid emphasis upon page No.206 and 207 to indicate that the columns which have been left blank or extract marks are provided, ordinarily ought not to have been left blank and therefore, this was specifically brought to the notice of the authority under the objection dated 22.1.2019. The authority without there being any decision thereon, rendered its final findings, which could be seen from the page No. 261 and 262. In view thereof the Court is of the view that as there is a primafacie breach of principle of natural justice as the decisions have been rendered prima-facie without affording appropriate material to the concerned, the Court has issued Notice for final disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 in case if sometime is taken in filing rejoinder, if any, or the hearing of the matter is spilled over and not completed by then, the irretrievable situation may be created and, therefore, he urges the Court that the Court may by further interim direction direct the authorities to extend the anti-dumping duty for a further period of two months as it may take care of intervening summer vacation also and the matter be heard prior thereto and that would serve the interest of justice. 4. This Court is of the view that while issuing the notice on 13.3.2019 an order was passed indicating therein that the notice was being issued for final disposal and it was made returnable on 27.3.2019 the Court did advert there into the requirement of issuing of notice for final disposal bearing in mind that the notification of 20.8.2018 would expire on 26.4.2019. The matter thereafter was required to be adjourned at the instance of respondent as could be seen from the order of 11.4.2019 wherein also the Court in fact had reproduced the earlier order only with a view to infuse the sense of urgency which appears to have worked but not to the fullest as though the reply has come but in a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel appearing for the respondents submitted that in fact the Court may pass appropriate order whereunder the imports that may be made after 16/04/2019, could be recorded so that ultimate outcome of the petition may govern the same, else the notification which was inure till 26/04/2019 has in fact been rescinded and when the Court pass an order on 24.04.2019, the factum of rescinding had already set in. Therefore, the Court may not pass any mandatory order. 13. The Court is of the view that the development in this matter and the passing of the orders time and again clearly indicate that the matter was to be decided finally on or before 26/04/2019. However, on account of respondents inability to place on record their version of reply, the matter was required to be adjourned and that adjournment and posting of the matter unfortunately has resulted into passing of the notification of 16/04/2019 which if not suspended would amount to rendering the Court s order and proceedings infructuous without there being adjudication which situation cannot be permitted to prevail in any circumstances especially when the High Court is examining the final finding under Article 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Trade Remedies (DGTR) initiated sunset review vide notification dated 7/16/2018-DGAD dated 24.5.2018 and recommended extension of anti-dumping duty till 26.4.2019. Accordingly, vide notification No. 39/2018-Customs (ADD) dated 20.08.2018 anti-dumping duty on imports of 'Paracetamol' originating in or exported from China PR, was extended till 26.4.2019. 3.1 Subsequently, the DGTR in the final findings in the aforesaid Sunset Review investigation did not recommended continuation of anti-dumping duty on imports of 'Paracetamol' originating in or exported from Chine PR. These recommendations were accepted by the competent authority and vide notification No. 19/2019-Customs (ADD) dated 16.04.2019, antidumping duty was withdrawn. 4. Further, an e-mail was received from petitioner's counsel on 25.04.2019 enclosing therewith orders of the Hon'ble High Court of Gujarat dated 24.04.2019. However, in this regard neither any petition/notice was serviced upon, nor comments were sought from the Department of Revenue (DoR). Vide said order, the Hon'ble High Court directed to extend the validity of notification No. 39/2018-Customs (AD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced as under: 30. Bare reading of the above order makes it more than clear that the salary to be paid to the writ petitioner was from October 27, 1997 to February 28, 1998. It was expressly stated that the writ-petitioner would not be entitled to arrears of pay and allowances for any earlier period since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers . It is thus obvious that in spite of clear direction issued by a competent Court, no payment was made and an express order was passed to the effect that the writ- petitioner would not be entitled to pay as he had not worked. The writ-petitioner, therefore, had legitimate grievance against such direction. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified in granting the prayer. 31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected. (emphasis supplied) 13. The Court was requested by counsel for the respondents to keep back the matter for a while so as to enable the counsels to obtain specific instructions on the Office Memorandum as it was submitted that the same would amount to authority declining to obey the order of this Court. The counsel for the respondents after obtaining instructions submitted that the authorities are unable to instruct him other than what is stated in the Office Memorandum, as that may be taken as a stand of the respondents and it was urged that else the Court may differ the matter for 4 days so that authority may take appropriate decision. This request was strongly objected by the counsel for the petitioners, as the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove rather indicates the authority's conduct in avoiding the compliance with the Court's order. The author of the Office Memorandum clearly reveals uncanny and enigmatic recalcitrant approach on the part of the authority in complying with the order of this Court when these orders being not subjected to any further challenge or sought to be reviewed. The resultant effect of the two orders i.e. 24.4.2019 and 26.4.2019 left no room for any other option to the authority but to pass appropriate order and extend the anti-dumping duty notification. We are at pain to observe that para-6 of the Office Memorandum clearly betrays an unlawful and illegal examining by authority examining the orders of this court. Nothing prevented the respondents from approaching this Court or Supreme Court for obtaining appropriate orders but in absence thereof the authority themselves cannot decide not to comply with the order. 16. Against these backdrops, we are called upon to examine the prayers made in this application. If these prayers are not granted, it would amount to permit the respondents to render petition infructuous solely on account of their omission to file reply and without ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
