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2019 Supreme(Guj) 719
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.R. Brahmbhatt, A.P. Thaker, JJ.
Jindal Saw Limited - Appellant
Vs.
Ministry of Finance - Respondent
R/Special Civil Application No. 6896 of 2019
Decided On : 20-06-2019
For the Appellant :Mihir Joshi, Sr. Advocate and Harshadray A. Dave
For the Respondents: Nirzar S. Desai
Headnote:
Constitution of India , 1950 – Article 226 – Customs Tariff Act, 1975 – Section 9A(5) – Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rules 5 and 23(1B) – Antidumping duty – Notification – Seeks to stay the execution and implementation of the Final Findings and further be pleased to direct the Designated Authority Respondent No. 1 herein to extend the existing anti-dumping duties by a further period of 6 months pending the outcome of this petition – petitioner had filed an application under Rule 5 of Rules, 1995 for initiation of antidumping investigation into imports of Ductile Iron Pipes (hereinafter referred to as the subject goods for the sake of brevity) originating in or exported from China PR – The respondent no. 2 vide the initiation notification initiated anti-dumping investigation with respect to the subject goods – Vide notification nothe respondent no. 2 issued its final findings and recommended imposition of anti-dumping duty upon the import of the subject goods from the subject country. The Ministry of Finance accepted the recommendations of the respondent no. 2 and imposed definitive anti-dumping duty vide Custom Notification – Rejection of the application of the petitioner for initiation of sunset review investigation concerning imports of subject goods from the subject country – Held, Impugned Final Finding recorded in the Notification cannot be said to be strictly in accordance with the provision of Rule 23 of the Rules, as there is non-advertence to the material placed on record and there is non-compliance with the principle of natural justice as no requisite information was made available and the conclusions are not supported by the material on record. Therefore, we are left with no other alternative, but to remand back the matter to the concerned authority after quashing and setting aside the same for reconsideration on the aspects which have been mentioned herein above and record its finding, as the extended period of notification of anti dumping duty is ending, the same is also required to be extended for appropriate time so that assessing the material and recording the final findings afresh could be undertaken meaningfully and without jeopardizing the parties right and contentions and rendering it in-fructuous – it is required to be noted that as per the provisions of Section-9A(5) the extendable period of anti dumping duty – In that view of the matter, the respondent no. 2 shall complete the process of rendering final findings latest by 15.09.2019 and the respondent no. 1 shall extend the anti dumping duty by suitable period in accordance with the provision of Section-9A and the Rules so as to prevent the entire exercise becoming in-fructuous – impugned final findings dated 01.04.2019 are hereby quashed and set aside – Petition is allowed. (Paras 15 to 19)
JUDGMENT :
S.R. Brahmbhatt, 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 is preferred by the petitioner, Domestic Industry and original applicant of substantive application to Designated Authority for seeking Sunset review invoking provisions of section 9A of Custom Tariff Act and Rules,-under Article 226 of the Constitution of India with following prayers:
(a) Grant a writ of Certiorari or any other writ or order or direction in the nature thereof thereby quashing and setting aside the impugned Final Findings 7/18/2018-DGAD dated 01.04.2019 passed by the Respondent No. 2 and be pleased to grant consequential orders; and
(b) Pending the hearing and final disposal of this petition, this Honourable Court be pleased to stay the execution and implementation of the Final Findings 7/18/2018-DGAD dated 01.04.2019 and further be pleased to direct the Designated Authority Respondent No. 1 herein to extend the existing anti-dumping duties by a further period of 6 months pending the outcome of this petition; and
(c) Be pleased to grant ad-interim relief in terms of para-(b) hereinabove;
(d) Pass any such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case."
Thus what is essentially under challenge is the final findings No. 7/18/2018-DGAD dated 01.04.2019 passed by the respondent no. 2-Designated Authority on account of which the application of the petitioner under 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 read with Section 9A(5) of the Customs Tariff Act, 1975 for the purpose of continuation of antidumping duty on the imports of Ductile Iron Pipes originating in or exported from China PR was rejected and the Designated Authority held that anti dumping duty on the product need not be continued hereafter.
3. Facts in brief, as could be gathered from the memo of petition, deserve to be set out as under:
3.1. The petitioner had filed an application under Rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as "the Rules" for the sake of brevity) for initiation of antidumping investigation into imports of Ductile Iron Pipes (hereinafter referred to as the 'subject goods' for the sake of brevity) originating in or exported from China PR (hereinafter referred to as the 'subject country' for the sake of brevity). The respondent no. 2 vide the initiation notification No. 14/14/2005-DGAD : dated 24.02.2006 initiated anti-dumping investigation with respect to the subject goods.
3.2. Vide notification no. 14/14/2005-DGAD : dated 23.08.2007, the respondent no. 2 issued its final findings and recommended imposition of anti-dumping duty upon the import of the subject goods from the subject country. The Ministry of Finance accepted the recommendations of the respondent no. 2 and imposed definitive anti-dumping duty vide Custom Notification No. 103/2007 : dated 14.09.2007.
3.3. The petitioner filed an application under Rule 23(1B) for initiation of first sunset review investigation for continuation of anti-dumping duty for a further period of 5 years. The respondent no. 2 vide initiation notification no. 15/1006/2012-DGAD : dated 07.09.2012 initiated first sunset review investigation concerning imports of the subject goods from the subject country and vide final findings no. 15/1006/2012-DGAD dated 04.09.2013, the respondent no. 2 recommended continuation of anti-dumping duty for a further period of 5 years.
3.4. The said recommendation was accepted by the Min
