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TMI Blog2003 (1) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. The Designated Authority, amongst others, held as follows : - "G. Deminimus Volume of import It has been represented by the exporters15. from Bangladesh that exports made from Bangladesh to India are during the period of investigation. As the number of batteries is not a good indicator of the volume of imports, there being batteries of various sizes and type it is only in terms of value that the de minimis criteria can be applied. As per the evidence available before the Authority the imports from Bangladesh account for less than 3 per cent of the value/volume of import of the subject goods to India. Hence for the purpose of preliminary finding, the Authority determined that imports from Bangladesh, are deminimis pending further investigation." 2.The conclusions of such authority in the preliminary finding as also as follows : Conclusions"O The Authority has, after considering the30. foregoing, come the conclusion that : Lead Acid Batteries exported to India from China, Korea and Japan are below its normal value; the Indian industry has suffered material injury and further being threatened with material injury; the injury has been caused by the dumped imports from Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial injury. The injury has been caused by the imports of dumped goods from China, Korea, Japan and Bangladesh. Therefore, the appropriate authority proposed to recommend the amount of anti-dumping duty applicable thereon which has been fixed at a rate between the amount mentioned in Column-III of the Table given under the finding and landed value of import per kg. of the lead acid batteries for the exporters/manufacturers from the countries including Bangladesh. Hence the petitioner also filed the writ petition challenging the final finding. However, it is to be recorded hereunder that both the findings were notified in the appropriate Gazette in accordance with law on 21st March, 2001 and 7th December, 2001. 6.Both the notifications were issued from New Delhi having impact all over India and/or places wherever affected persons are carrying on business. In the present case it appears to this Court that the petitioner is carrying on business at and from Calcutta. Almost the entire goods were dumped in West Bengal. All records having nexus and connection with the subject matter of issue are lying in the office of the Director General of Commerce Intelligence and Statistics, Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside, then the Court held that this Court had no jurisdiction. I have no dispute with such proposition but again the same is not the case herein. 10.Mr. Mitra has given much more emphasis on the question of alternative remedy rather than the question of territorial jurisdiction. According to him, even under the preliminary finding whether the import made by the petitioner declared de-minimis wrongly or rightly, can also be taken into account by the forum for appeal or review. There is no occasion for invocation of the writ jurisdiction ignoring such forum for appeal or review. The complicated question of facts cannot be ascertained in the manner as the petitioner proposed. Customs Tariff Act, 1975 and Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on the Dumped Articles and for Determination of Injury) Rules, 1995, if read together, it will be understood that the same is a complete code by itself. Therefore, there is no necessity of invocation of writ jurisdiction challenging the notification under preliminary and final finding. I do not think that such argument on the part of Mr. Mitra is an ignorable argument. But before taking such defence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs are so inextricably mixed up and prevention of public injury and the vindication of public justice requires that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving revenue where statutory remedies are available are not such matters. The Supreme Court took a judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice needs to be strongly discouraged. Thirdly, he cited a judgment reported in 2001 (131) E.L.T. 3 (S.C.) [Commr. of Customs, Visakhapatnam v. Jaya Satya Marine Exports (P) Ltd.)] where also a three Judges Bench of the Supreme Court accepted the argument of the authorities on the point of relegating the matters to the forum for alternative remedy. Fourthly he cited a Madras High Court judgment reported in 2001(132) E.L.T. 561 (Mad.) (MYM Exporters v. Union of India) to give much emphasis on this issue. Fifthly, he cited a judgment reported in 2001 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "normal value". In Such circumstances, the authority is justified in proceeding to determine the normal value specially catalyst on the basis of the "best judgment assessment" as contemplated under Rule 6(8) of the Rules. 13.The tenor of Mr. Mitra's argument in this respect is not to submit to the jurisdiction of the writ Court in respect of the factual aspect of the matter but to establish the practical difficulty of the Writ Court to come to a conclusion in such aspects of the matter. He stated that it is a matter of complicated question of facts which has to be tested by the appropriate forum on the basis of the guidelines given by the Supreme Court. Invocation of the writ jurisdiction is a sheer wastage of time. By this time the matter would have been decided by the Appellate Forum under the statute itself as well as the forum of Customs, Excise and Gold (Control) Tribunal. He cited three judgments specifically on this point which are reported in 2001 (127) E.L.T. 674 (Guj.) (Pradash Kumar Jain v. Union of India), and 2002 (141) E.L.T. 312 (Cal.) (Shew Kumar Agarwal v. Union of India). The moot point in such judgments is that when there is a complicated question of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c difference between Rule 7 and Rule 16. Hence, the petitioner is entitled to know the informations formed the basis of the final finding, particularly in a situation when already declared de-minimis articles in the preliminary finding reopened at the final finding. Therefore, non-supply of information to the petitioner before passing such final order is violation of principles of natural justice. 16.Thirdly, the dumping margin is fixed on percentage. The percentage of what that has not been described by any of the respondents. If this Court goes on the basis of Section 9A of the Act it will be seen that the margin of dumped articles means difference between its export price and normal value. Hence, unless and until the basis of such percentage is known the margin of dumping in between export price and normal value as per Section 9A of the Act will also remain unknown. 17.According to Mr. Pal, there is no answer of the respondents in respect of the aforesaid three points. That apart, he contended that the alternative remedy is no bar in respect of such cases, particularly when the respondents submitted to the jurisdiction by filing applications for addition of parties and/or vaca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssatisfied with the determination of the Designated Authority. But the question is why those points could not be raised before the Appellate or Reviewing Authority? The dispute as regards the value and volume cannot be answered by the writ court because it relates to the factual aspect of the matter. Disclosure of information by the Designated Authority cannot also be pertinent for the purpose of intervention of the writ court since it is a mixed question of law and facts. Therefore, the remaining question is whether the imported articles from Bangladesh can be determined by the Designated Authority as de-minimis pending further investigation or not. 20.According to me, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 is made in exercise of the powers conferred by sub-section 6 of section 9A and sub-section (2) of Section 9B of the Customs Tariff Act, 1975 and in suppression of the earlier Rules of the year, 1985. Therefore, the Rules have to be read in the light of the Act under which those have been made. Section 9A of the Customs Tariff Act, 1975 gives an impression about anti-dump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the preliminary finding i.e. de-minimis subject to final determination is merged with the final finding the same can be reviewed as per its applicability to Rule 17 as and when it is called upon, on the other-hand if the de-minimis finding said to be final as per Rule 14 on the basis of the arguments of the petitioner, the designated authority is empowered to review. Therefore the authority has jurisdiction to determine the duty finally at the preliminary stage or can review. On top of it there is also provision of appeal or review regarding the existence degree and effect of any of dumping in relation to import of any article which shall lie with the Customs, Excise and Gold Control Appellate Tribunal constituted under Section 129 of the Customs Act. The Appellate Tribunal may, after giving the parties the opportunity of appeal and opportunity of being heard, pass such order thereon as it thinks fit confirming, modifying or annulling the appeal ordered against. The termination of investigation as available under Rule 14 obviously correlates to the preliminary findings under Rule 12 and levy of provisional duty under Rule 13. The question of final finding arises only under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation of factual materials by a forums made for the purpose under the statute. Therefore, I do not find any reason for interference of the writ court in those subjects. In other words, the decision of the writ court may not be so efficacious remedy as it has to be made under the statute, Fat obviously there is a valid point for the purpose of taking decision by the forum or forums made for the same. 21.Therefore, taking into totality of the matter I am of the view that the writ petitions are liable to be dismissed. Accordingly writ petition are dismissed. However this order will not prevent the petitioner from filing an appropriate appeal or review petition before the appropriate forum, if not already filed by him or by the exporters or by any of the interested parties as it has been reported to this Court. For the purpose of getting opportunity of preferring appeal or review, the time period between the date of filing the writ petition challenging this final finding and the date of obtaining the certified copy of the order passed hereunder is excluded. The appropriate forum or forums made for it will be entitled to take decision independently on the basis of the materials ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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