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2023 Supreme(Del) 3393
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Shakdher, Tara Vitasta Ganju, JJ.
Dow Chemical International Pvt. Ltd. – Appellant
Versus
Union of India & Ors. – Respondents
CUSAA 48 of 2021 & CM No.44762 of 2021
Decided On : 19-07-2023
Mr S. Ganesh, Senior Advocate with Ms Shiraz Patodia, Mr Ashish Singh, Ms Juhi Chawla and Mr Mayank Singhal, Advocates, for the Appellant.
Mr Satish Kumar, Senior Standing Counsel with Ms Vaishali Goyal and Mr Dhruv, Advocates for R-1.
Mr Sandeep Sethi, Senior Advocate with Mr Jitendra Singh, Mr Anshumaan Sahni and Mr Akshay Soni, Advocates for R-3.
The court emphasized the importance of seeking appropriate remedies for vacation or variation of interim orders and held that the time for which the interim orders were operable had to be excluded, and the notification dated 05.04.2021 was not void in law.
Headnote:
Customs Act - Appeal against interim order dated 01.11.2021 - ADD Rules - The court considered whether the notification dated 05.04.2021 issued by UOI was void in law, as it was issued after the timeframe prescribed under Rule 18 of the ADD Rules had been crossed. The court held that the time for which the interim orders were operable had to be excluded, and the notification dated 05.04.2021 was not void in law.
Fact of the Case:
The appeal was filed under Section 130 of the Customs Act, 1962 against an interim order passed by the Tribunal. The appeal concerned the imposition of Anti-Dumping Duty (ADD) on goods imported into the country, specifically 'Flexible Slabstock Polyol' originating from Saudi Arabia and UAE.
Finding of the Court:
The court found that the notification dated 05.04.2021 was not void in law as it was issued within a reasonable timeframe, considering the interim orders and representations made by the parties. The court also declined to interfere with the impugned order passed by the Tribunal.
Issues: The central issue was whether the notification dated 05.04.2021 was void in law, as it was issued after the timeframe prescribed under Rule 18 of the ADD Rules had been crossed. The court also considered the maintainability of the appeal on the grounds of forum non conveniens and forum shopping.
Ratio Decidendi: The court held that the time for which the interim orders were operable had to be excluded, and the notification dated 05.04.2021 was not void in law. The court also emphasized the importance of seeking appropriate remedies for vacation or variation of interim orders.
Final Decision: The appeal was dismissed, and the impugned order dated 01.11.2021 passed by the Tribunal was upheld.
JUDGMENT
TABLE OF CONTENTS
Preface:
Background:
Submissions advanced on behalf of the appellant:
Submissions advanced on behalf of the respondents:
Reasons and Analysis:
Conclusion:
Rajiv Shakdher, J.
PREFACE
1. This is an appeal preferred under Section 130 of the Customs Act, 1962 [in short, "the 1962 Act"] against an interim order dated 01.11.2021 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi [in short "the Tribunal"].
1.1. Via order dated 01.11.2021, the Tribunal disposed of two (2) interlocutory applications, preferred by the appellant i.e., Dow Chemical International Pvt. Ltd. [hereafter referred to as, "Dow"] and another entity, going by the name Sadara Chemical Company [hereafter referred to as "Sadara"] in their respective appeals instituted before the Tribunal i.e., Appeal nos. AD/50865/2021 and AD/50864/2021.
1.2. Dow and Sadara had sought a stay of the operation of the customs notification dated 05.04.2021 issued by respondent no.1 i.e., Union of India (UOI) through Ministry of Finance, Department of Revenue, and the final findings notification dated 01.09.2020 issued by respondent no.2 i.e., the Designated Authority [in short, "DA"] [hereafter collectively referred to as "impugned notifications" unless the context requires otherwise].
2. In line with the relief sought in the interlocutory applications, in the appeals preferred before the Tribunal, a direction was sought for setting aside the aforesaid notification dated 05.04.2021 issued by UOI, whereby the recommendation made by the DA to impose Anti-Dumping Duty ("ADD") on the goods imported into the country i.e., "Flexible Slabstock Polyol" ("FSP") originating from Saudi Arabia and United Arab Emirates ("UAE") was accepted. Resultantly, FSP originating from Saudi Arabia suffers ADD at the rate of USD 150.06 per MT.
2.1. The impugned notifications were issued, based on an application lodged by respondent no.3 i.e., Manali Petrochemicals Ltd. [hereafter referred to as "MPL"].
2.2. This led to the initiation of an investigation, pursuant to a public notice being issued on 18.09.2019. It appears, that the period which was covered during the investigation spanned between 01.04.2018 to 31.03.2019 (12 months).
3. The investigation culminated in the DA recommending, as indicated above, the imposition of ADD, which is the subject matter of the notification dated 01.09.2020. As noticed above, UOI accepted the recommendation and issued the Customs notification dated 05.04.2021.
4. In the appeal lodged by Dow before the Tribunal, which we are told is pending adjudication, according to MPL, broadly, the following grounds of challenge have been raised. These grounds have been captured in the counter-affidavit filed on behalf of MPL, which have not been refuted by Dow.
(i) The impugned Customs notification was issued without application of mind, and was bad in law; the principles of natural justice were violated while issuing the notification dated 01.09.2020, as documents and material taken into account were not put to Dow.
(ii) The dumping margin has been arrived at by the DA, in contravention of the Customs Tariff (Identification, Assessment and Collection of Anti- Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [in short, " the ADD Rules"].
(iii) The recommendation made via notification dated 01.09.2020 was illegal, and contravened the provisions of the Customs Tariff Act, 1975 [in short, "CTA"] and the ADD Rules. The recommendation contained in the notification dated 01.09.2020 was flawed, for the reason that exports from Singapore were not considered; price undercutting, suppression and depression were not taken into account; there was no determination of causal link or return on capital employed, non-injurious price and injury margin; no basis is provided in computing the rate of duty for other exporters located in Saudi Arabia.
(iv) The disclosure statement violated principles of natural justice, and
