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TMI Blog2019 (7) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... legal right and their enforcement. Application disposed off. - MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4461 of 2019 With CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4461 of 2019 - - - Dated:- 23-7-2019 - MR S. R. BRAHMBHATT AND DR A. P. THAKER, JJ. For The PETITIONER (s) : MR MIHIR JOSHI, Senior Advocate with MS GARGI R VYAS For The RESPONDENT (s) : MR DEVANG VYAS AND MR NIRZAR S DESAI For The APPLICANT : MR ANAND NAINAVATI with MR BHARGAV MANSATTA AND MR ANKUR SHARMA For The RESPONDENT : MR DEVANG VYAS AND MR NIRZAR S DESAI IA ORDER ( PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. Heard learned counsel for the parties. 2. Misc. Civil Application No.1 of 2019 is preferred with following prayers:- A. This Hon ble Court be pleased to direct the Respondent to comply with the Order dated July 3, 2019 passed SCA 4461 of 2019 so as to initiate sunset review and also suitably extend anti-dumping duty; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and the requisite issuance of the notification appropriately extending anti-dumping duty as the original notification was expiring on 23.7.2019 and, in absence of any extension, the entire direction and order would have been rendered infructuous. 5. Civil Application No.2 of 2019, though ostensibly filed for seeking only impleadment in Miscellaneous Civil Application for resisting the prayer on account of the facts mentioned thereunder, but it also contains prayer which does not restrict the scope of application as impleadment application only. 6. Learned counsel for the applicant in Miscellaneous Civil Application No.1 of 2019 submitted that the respondents have failed in carrying out the direction contained in order dated 3.7.2019 and in past also the Court had to pass orders issuing direction for the authorities to comply with the earlier direction. The Court s attention was invited to the proceedings of Civil Application (for direction) No.2 of 2019 in Special Civil Application No.5278 of 2019 and Misc. Civil Application No.2 of 2018 in Special Civil Application No.14204 of 2017, wherein following orders are passed:- MCA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government to pass an order under the first proviso to rule 17(1)(a) of the rules, it would not be possible for the Central Government to pass such order today itself. Therefore, having regard to the peculiar facts of this case and the adamant approach adopted by the Designated Authority in not seeking extension of the period for concluding the review till an opinion of the Ministry of Law is obtained on the specious ground that this would be construed as the Designated Authority having accepted such judgment and thereby not respecting the judgment and order passed by this court, this court is of the view that the interests of justice requires that powers under the first proviso to rule 17(1)(a) of the rules be exercised and the period for completing the Sunset Review be extended by a period of six months. In the opinion of this court, with due deference to the judgment of this court, the respondent authorities ought to have extended the period for concluding the review subject to their right to challenge the judgment and order passed by this court, which would have taken care of the peculiar situation that has arisen in the present case. 21 In the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een reproduced hereinabove, as a result thereof, the authority shall issue extension notification, extending the anti-dumping duty, as ordered in order dated 24.4.2019. 17. In view of aforesaid, NOTICE returnable on 12.6.2019. Shri Kshitij Amin, learned counsel and Shri Nirzar Desai, learned counsel waives service of notice on behalf of respondent Nos. 1,3,4 and 2 respectively. 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. 6.1 By placing reliance upon these two orders, it was indicated by the counsel for the applicant that unfortunately it is always required to obtain orders of the Court after the directions are issued for seeking implementation thereof and as the other matters indicate that there is lack of action for implementing the orders, present Miscellaneous Civil Application was warranted and it is filed. 6.2 Counsel for the applicant submitted that perhaps on account of the Notification dated 24.7.2014 which was the subject matter of proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dies could not have, on account of inaction, rendered the petition and the order of this Court infructuous, as the attempt is evident from the submission made on behalf of the authorities by Shri Nirzar Desai, the counsel representing them. The Office Memorandum pressed into service by the counsel for the official respondent dated 18.07.2019 cannot be permitted to render the petition, which has been allowed by this Court, infructuous without there being any adjudication upon the merits and demerits of the order dated 03.07.2019 wherein this Court allowed the petition and issued direction. The fact remains to be noted that the Delhi High Court s order is subject matter of S.L.P. and the Supreme Court issuing notice thereon and granting no stay, in itself would not render any justification to the respondents inaction, as the same is likely to result into rendering the entire proceedings infructuous only on account of their inaction and lack of appropriate submission before the Court. 6.5 The counsel expressed apprehension qua the order of this Court being rendered infructuous on account of the inaction on the part of the concerned authority as nothing prevented the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The anti-dumping duty was imposed vide notification No. 25/2013-Customs dated 26.10.2013 for a period of 5 years. The Directorate General 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 antidumping 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, anti-dumping 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 sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 antidumping 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. 7. Learned counsel appearing for the official respondents contended that except placing this Office Memorandum on record, he has nothing further to say, as according to him in absence of any pleadings on the record qua Delhi High Court judgment and its aftermath from either the Ministry of Finance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.2 of 2019 also invited the Court s attention to the fact that the judgment and order dated 03.07.2019 passed in Special Civil Application No.4461 of 2019 is also subject matter of challenge by way of proceedings being Diary No.24738 of 2019 before the Supreme Court. The counsel also invited the Court attention to the application filed by the present petitioners in the pending proceedings in which Delhi High Court judgment was challenged seeking appropriate direction. 9. Civil Application No.2 of 2019 is objected, as the applicants have not chosen to approach this Court at any point of time and exporter cannot be said to be in any manner affected or interested party so far as sunset review is concerned and the Supreme Court has fixed the matter for final disposal on 07.08.2019 and, therefore, nothing prevented the respondents from complying with the direction issued by this Court, subject to the result of the proceedings before the Supreme Court. 10. The Court has considered the rival contentions. This Court is of the view that the learned counsel for the applicant of Miscellaneous Civil Application No.1 of 2019 is absolutely justified in contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to be noted that so far as the Ministry of Finance is concerned, it has not chosen to file reply though it is duly served in the main petition proceedings. Reply filed on behalf of the Director General of Trade Remedies is, in fact, not taking or revealing any stand which can be said to be based upon Delhi High Court judgment and order in respect of Notification dated 24.7.2014, rather it proceeds as if Notification dated 24.7.2017 is still in existence, enuring and operational and, therefore, when the Court has rendered the decision based upon such premise, it was rather bare minimum requirement on their part to challenge the order of this Court before the Supreme Court or file a review petition before this Court or seek at least some clarification on the order passed, based upon their wisdom which appears to have been dawning on them only after they receive Court s order dated 3.7.2019 passed in Special Civil Application No.4461 of 2019. The said uncanny action and unjustified inertia on the part of the respondent provided an unacceptable lack of regard to the Court proceedings and orders. We are of the view that the authorities could not have sat silent over the dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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