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2001 Supreme(Cal) 785
High Court Of Calcutta
Amitava Lala
SHEW KUMAR AGARWAL - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 2259 Of 2001
Decided On : 12/21/2001
ABHRAJIT MITRA, ASHISH CHAKRABORTY, Jayanta Mitra, RATNANKUR BANERJI, RITABRATA MITRA, S.N.ROY, Tapati Ghosh
The designated authority's preliminary finding was not a final determination and the petitioners had an alternative remedy by way of appeal to the CEGAT under section 9C of the Customs Tariff Act, 1975.
Headnote:
ANTI-DUMPING DUTY - LEVY AND IMPOSITION - CUSTOMS TARIFF ACT, 1975 - SECTIONS 6(2), 9C - INTERPRETATION AND APPLICATION - PRELIMINARY FINDING BY DESIGNATED AUTHORITY - SERVICE OF NOTICE - REQUIREMENT OF NATURAL JUSTICE - AVAILABILITY OF ALTERNATIVE REMEDY - APPEAL TO CEGAT - SCOPE AND AMBIT.
Fact of the Case:
The petitioners, M/s. Bharat Marbels and M/s. Kajaria Plus Limited, challenged the notification imposing anti-dumping duty on imports of vitrified tiles from China and UAE, alleging violation of principles of natural justice and lack of service of notice under Rule 6(2) of the Anti-dumping Duty Rules, 1995. The petitioners contended that the preliminary finding by the designated authority was perverse due to non-compliance with the mandatory requirement of forwarding a copy of the public notice to the known exporters, governments of exporting countries, and other interested parties.
Finding of the Court:
The Court held that the petitioners' contention lacked merit. It found that the Embassies of the subject countries were informed about the initiation of investigations in accordance with Rule 6(2), and that the exporters and complainants were served with notices and took part in the investigation proceedings. The Court also noted that the petitioners themselves annexed a copy of the notice dated 6th August 2001, indicating that they had received the notice.
Issues: 1. Whether the designated authority violated the principles of natural justice by failing to serve a copy of the public notice upon the petitioners under Rule 6(2) of the Anti-dumping Duty Rules, 1995? 2. Whether the petitioners had an alternative remedy by way of appeal to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) under section 9C of the Customs Tariff Act, 1975?
Ratio Decidendi: 1. The Court interpreted Rule 6(2) of the Anti-dumping Duty Rules, 1995, and held that the requirement to forward a copy of the public notice is intended for the exporters and not the importers. The Court found that the exporters and complainants were served with notices and took part in the investigation proceedings, and that the petitioners' sister concerns were also served. The Court held that the policy of service through the Embassies was sufficient for the purpose of service to all concerned parties, and that it was the duty of the exporters to intimate their importers. 2. The Court held that an alternative remedy was available to the petitioners by way of appeal to the CEGAT under section 9C of the Customs Tariff Act, 1975. The Court noted that section 9C provides for an appeal against the order of determination or review thereof regarding the existence, degree, and effect of any subsidy or dumping in relation to the import of any article. The Court held that the preliminary finding by the designated authority was not a final determination, and that the petitioners could challenge the final determination before the CEGAT.
Final Decision: The Court dismissed the writ petition, holding that the petitioners' contention lacked merit and that they had an alternative remedy by way of appeal to the CEGAT. The Court also held that the preliminary finding by the designated authority was not a final determination and that the petitioners could challenge the final determination before the CEGAT.
( 1 ) THE Court : This writ petition is made by a business concern known as M/s. Bharat Marbels and another by a company known as M/s. Kajaria Plus Limited, incorporated under the Indian Companies Act, 1956 by the pen of one Mr. Amit Agarwal claims to be the constituted attorney of the petitioner No. 1 and another Mr. Priyojeet Sen petitioner No. 3 herein claims to be the Area Manager and Principal Officer jointly having indentical claim or claims.
( 2 ) THE grievance of the writ petitioners are that the notification No. 37/1/2001/dgad dated 6th August, 2001 may be quashed and consionable justice may be done in connection with levy and anti-dumping duty on imports of vitrified tiles from China and UAE with incidental prayers in connection thereto.
( 3 ) THIS writ petition was initially moved in the Vacation Bench and thereafter placed before this Court on 4th December, 2001. Upon hearing at the interim stage this Court was pleased to refuse granting of any interim order but gave directions to exchange the affidavits in between the parties. Many private parties appeared and wanted to intervene either by making oral application or by making written application when I have directed all of them to take out formal written applications and move on the returnable date. As and when Court will be satisfied treat them as interveners and then proceed with the main writ petition. Their contention is that on their complaints, authority proceeded against these writ petitions and furnished preliminary findings. Therefore, they are the necessary parties.
( 4 ) ON 18th December, 2001 the matter appeared before the list under the heading 'specially fixed matters'. The interested parties applied before this Court and their applications were allowed formally by this Court with a direction initially to use their applications as defence to the writ petition. Supplementary affidavits were also directed to file upon service of writ petition. But when gradually arguments advanced this Court felt that the matter can be decided finally in either way without postponing the matter for exchanging further affidavits. The next paragraph will be the narration of the arguments as advanced by the petitioners.
( 5 ) MR. Anindya Kr. Mitra learned senior counsel appearing on behalf of the petitioner contended before this Court that no notice under Rule 6 (2) of Anti-dumping duty Rules under Customs Tariff Act. 1975 was served upon them for the purpose of making investigations as to why anti-dumping duties will be imposed by the petitioners on all imports of subject goods originating in or exported from UAE and China is less than the landed value of all the imports and subject goods. Prescribed rule says that the designated authority shall after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall inter alia contain adequate information under Rule 6 (1) therein. The procedure is that upon getting information from the complainants it is duty incumbent upon the designated authority to investigate the matter from a preliminary finding, recommend the matter to the Central Government or the purpose of issuance of notification to pay the additional anti-dumping duty and proceed finally and determine the same. There are steps in doing so but at the threshold on the basis of information the designated authority will issue a public notice in this regard under section 6 (1) of the aforesaid Rule. There is no dispute in this respect that such public notice had been issued. The dispute, which has been raised by the petitioner, is that following such notification, a copy of the public notice ought to have been forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties but no such copy in
