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2019 Supreme(Guj) 561
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.R. BRAHMBHATT, A.P. THAKER, JJ.
Farmson Pharmaceuticals Gujarat Pvt. Ltd. - Appellant
Versus
Union Of India - Respondents
R/Special Civil Application No. 5278 of 2019
Decided on : 03-07-2019
Advocate Appeared:
For the Appellant : MR S.N. SOPARKAR FOR GARGI R. VYAS, Adv.
For the Respondent: MR RAVI PRAKASH WITH MR DEVANG VYAS, MR NIRZAR S DESAI, Adv.
Headnote:
Companies Act, 1956 - Customs Tariff Act, 1975 - Section 9A(1) - Constitution of India,1950 -Article 226 - Petition has been preferred by Court be pleased to issue a writ of certiorari or a writ in nature of certiorari, so as to quash and set aside Impugned Final Finding along with Disclosure Statement - Petitioners that India being a signatory to World Trade Organization and also a party to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade which provides the principles and procedure of determination and imposition of Anti-Dumping Duties and methodology for determination thereof etc. It is contended that of the Customs Tariff Act envisages the imposition of a duty namely Anti-Dumping Duty on margin of dumping on an article exported to India where its export price is less than its normal value - It is contended that thereof also provides for determination of margin of dumping and imposition of duty and necessity of conducting inquiry and duty - It is contended that Rules also provide for determining likelihood of continuation or recurrence of dumping and injury - It is contended that subject goods is a common analgesic and antipathetic drug that is used for the relief of fever headache and other minor aches and pains - According to petitioners producers exporters from China PR were exporting subject goods to India for quite some time and dumping intensified during - Petitioners that despite imposition of imports from China continued to enter market in dumped prices and therefore being aggrieved towards end of year again representative of Domestic Industry approached respondent in accordance with of Act read with Rules - Petitioners despite change in form of dumping continuous from subject country which forced petitioners along with Pharmaceuticals Ltd to again approached the authority with duly substantiated application on behalf of for extension with prima facie evidence of likelihood of dumping and injury in accordance with law - Petitioners that on respondent issued Disclosure Statement provisions of Rules which require disclosure of essential facts received and interpreted by it which are consideration for purpose of arriving at a final conclusion – Held, Court law in respect of final findings and its justifiability is no more res-integral and one can say that Constitution of India when final findings are assailed on grounds mentioned in submissions - Omissions on part of authority in considering detailed put forward by petitioner High Court could interfere in matter - Omission by designated authority in disclosing material which is not claimed to be confidential and omission to follow methodology in light of the decision in respect of Rule as held by Supreme Court in case of Reliance Industries Ltd - Designated Authority and Union of India Organics Ltd can be held to be sufficient material to persuade this Court to hold that final findings cannot be said to be sustainable in eye of law - Impugned Final Finding recorded in Notification cannot be said to be strictly in accordance with provision of Rules, as there is non-advertence to material placed on record and there is noncompliance with principle of natural justice as no requisite information was made available and the conclusions are diametrically opposed to material on record – Therefore are left with no other alternative but to remand back matter to concerned authority after quashing and setting aside same for reconsideration on aspects which have been mentioned above and record its finding and as extended period of notification of anti dumping duty is ending same is also required to be extended for appropriate time so that assessing material and recording final findings afresh could be undertaken meaningfully and without jeopardizing parties right and contentions and rendering it in fructuous - petition is allowed (Pares 28 and 29)
A.P. THAKER, J.
1. Heard learned counsels for the parties. As the counsels for the parties have exchanged their pleadings and argued the matter extensively for final disposal, this matter is being heard and disposed of finally.
2. The present petition has been preferred by the petitioners under Article 226 of the Constitution of India for the following prayers.
A. This Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari, so as to quash and set aside Impugned Final Finding No.7/16/2018-DGAD dated 29.01.2019 along with Disclosure Statement dated 15.01.2019 issued by the Respondent no.2 and annexed at Annexure - G and H hereto; and
B. Pending admission, hearing and final disposal of this petition, this Hon’ble Court be pleased to direct Respondent No.3 not to refrain from taking any steps in furtherance of the Impugned Final Finding dated 29.01.2019 issued by it and annexed as Annexure - G and Annexure - H hereto;
C. Pending admission, hearing and final disposal of this petition, this Hon’ble Court be pleased to direct the Respondent nos.1 to 4 to ensure that subject goods that may be cleared are duly accounted for and further the importers be notified about pendency of the present petition before this Hon’ble Court and subject to the outcome of the same;
D. Ad-interim reliefs in terms of prayers (B) and (C) above;
E. Ex parte ad-interim reliefs in terms of prayer (D) above;
F. For cost; and
G. Such other and further orders as may be considered fit and expedient in the facts of the case be passed.
3. It is contended that the petitioner No.1 is a company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of manufacturing “Paracetamol” (hereinafter be referred to as “the subject goods) in the State of Gujarat and petitioner No.2 is a shareholder of petitioner No.1 and concerned with the day to day activities of the company. Whereas, respondent No.1 is the Ministry of Commerce, Government of India and control respondent No.2, the Designated Authority (DA) is functioning and respondent No.4 is a Central Board of Indirect Taxes and Customs is the Nodal National Agency Responsible for Administering Customs, GST, Central Excise, Service Tax and Narcotics in India. It is contended that respondent No.2 is the Designated Authority constituted under the provisions of Rule 3 of the Customs Tariff (Identification, Assessment and Collection of Anti- Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter be referred to as “the Rules”) and carried out its duties and functioning of a quasi judicial authority as provided under Rule 6 of the Rules.
3.1 It is contended by the petitioners that the India being a signatory to World Trade Organization and also a party to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 1994 which provides the principles and procedure of determination and imposition of Anti-Dumping Duties and methodology for determination thereof etc. It is contended that Section 9A(1) of the Customs Tariff Act, 1975 (hereinafter be referred to as “the Act”) envisages the imposition of a duty namely Anti-Dumping Duty on the margin of dumping on an article exported to India where its export price is less than its normal value. It is contended that Section 9A(6) thereof also provides for determination of margin of dumping and imposition of such duty and necessity of conducting inquiry and duty. It is contended that Rules also provide for determining likelihood of continuation or recurrence of dumping and injury.
3.2 It is contended that the subject goods is a common analgesic and antipathetic drug that is used for the relief of fever, headache and other minor aches and pains. According to the petitioners, producers - exporters from China PR (hereinafter be referred to as “the sub
