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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SHAKDHER, MS TARA VITASTA GANJU, JJ.
Directorate General Of Trade Remedies & Anr. - Appellants
Versus
Jindal Saw & Anr. - Respondents
CUSAA7 of 2020 & CM Appl. 29506 of 2020
Decided on : 25-07-2022
Customs Act, 1962 - Section 130 - Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Rule 23(1B) - Customs Tariff Act, 1975 - Section 9A(1), read with clauses (a), (b) and (c),as also sub-section (5) and (6) - Excise and Service Tax - Notification - Anti-dumping investigations - Maintainability of appeal - Record shows, that appellant had via a notification initiated anti-dumping investigations concerning Ductile Iron Pipes [“DI Pipes”] originating in or exported from People’s Republic of China [“China”] - Once the investigation was completed, appellant no.1 issued a final finding notification, recommending imposition of antidumping duty [“ADD”] concerning DI Pipes originating in or exported from China - Whether expiry of ADD would lead to continuation or recurrence of dumping or injury to domestic industry - A plain reading of sub-section (2) of section 130 of the 1962 Act would demonstrate, that the appeal to this Court could be preferred either by Principal Commissioner of Customs or Commissioner of Customs or even “other party” aggrieved by any order of the Tribunal. (Para 81)
Finding of the court :
Appellant i.e., the Commissioner of Service Tax [hereafter referred to as “revenue”] argued to the contrary. The revenue, thus, propounded a narrow construction of the exclusionary part, incorporated in section 35G(1) of the CE Act. The Court, however, repelled this view, and in our view rightly so, as according to it, the issues concerning chargeability and classification are matters, which were related to the rate of duty or value of goods for the purposes of assessment - One cannot but agree with ratio of judgments of coordinate benches in ERNST and Young and Delhi Gymkhana - That said, ratio of those cases cannot be applied, in our opinion, to instant case - There is one last aspect that is required to be dealt with - As noticed above, Mr Ramesh Singh had also raised an objection with regard to tenability of appeal on ground that it was not preferred by Principal Commissioner or Commissioner of Customs as provided in section 130(2) of 1962 Act - Court could be preferred either by Principal Commissioner of Customs or Commissioner of Customs or even “other party” aggrieved by any order of Tribunal - Preliminary objection taken by respondents, as regards the maintainability of the instant appeal, cannot be sustained.
Result: Matter listed
JUDGMENT :
RAJIV SHAKDHER, J.
| Table of Contents |
| Preface:………………………………………………………………………….2 |
| Background:…………………………………………………………………….2 |
| Submissions of the counsel:…………………………………………………….6 |
| Analysis and Reasons:…………………………………………………………11 |
| Conclusion:…………………………………………………………………….22 |
Preface:
1. This matter is at the incipient stage. The respondents have raised a preliminary objection, concerning the maintainability of the appeal.
2. The appeal has been preferred under Section 130 of the Customs Act, 1962 [in short “1962 Act”] against the order dated 14.07.2020 [hereafter referred to as “impugned order”] passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi [in short “Tribunal”], in Anti-Dumping Appeal No.52172/2019.
3. The respondents contend, that the instant appeal is not maintainable, as it concerns aspects veering around “rate of duty” and its continued imposition, and therefore, an appeal against the impugned order would lie, if at all, with the Supreme Court, under the provisions of Section 130E(b) of the 1962 Act.
Background:
4. Before proceeding further, it may be relevant to etch out the broad contours of the matter.
5. The record shows, that the appellant no.1 had via a notification dated 24.02.2006 initiated anti-dumping investigations concerning Ductile Iron Pipes [in short “DI Pipes”] originating in or exported from the People’s Republic of China [hereafter referred to as “China”].
6. Once the investigation was completed, appellant no.1 issued a final finding notification dated 23.08.2007, recommending imposition of anti-dumping duty [hereafter referred to as “ADD”] concerning DI Pipes originating in or exported from China.
7. Resultantly, appellant no.2 i.e., the Union of India (UOI), through the Ministry of Finance, issued a notification dated 14.09.2007, in line with the final findings returned by appellant no.1 via its notification dated 23.08.2007.
8. The first sunset review investigation concerning ADD imposed on imports of DI Pipes originating in or exported from China was initiated, under appellant no. 1’s notification dated 07.09.2012.
8.1 The investigation led to appellant no.1 issuing a final finding notification dated 04.09.2013, via which it recommended the continuation of ADD.
9. Thus, ADD was imposed on DI Pipes originating in or exported from China via a notification dated 10.10.2013.
9.1 The timeframe for the imposition of ADD was set at five years and was accordingly triggered to expire on 09.10.2018.
10. Approximately five months before the expiration of the aforementioned period, the respondents approached appellant no.1, with a request to initiate a second sunset review investigation, in consonance with the provisions of Rule 23(1B) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995[in short “1995 Rules”].
11. Accordingly, appellant no.1 via communication dated 04.05.2018 listed the matter before it, for affording an oral hearing to the respondents.
12. After the preliminaries concerning filings were over, appellant no.1 finally heard the matter on 15.05.2018.
12.1 Upon culmination of the hearing, appellant no.1 via order dated 17.05.2018, rejected the application preferred by the respondents, and those who were similarly circumstanced.
13. The conclusion arrived at by appellant no.1 was, that the respondents i.e., the domestic industry had failed to make out a demonstrable case of continued injury, either in terms of volume or price, or other economic parameters, such as sales, production, capacity utilization, profits and cash profits.
14. Besides this, appellant no.1 also concluded, that the claim of the respondents and other applicants, that there was a likelihood of recurrence of the injury, in the event of cessation of ADD, was not made out.
15. Against the aforeme
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