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2018 Supreme(Gau) 772
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Achintya Malla Bujor Barua, J.
Gujarat State Fertilizers and Chemicals Ltd., Vadodra – Petitioner
Versus
Century Plyboards (I) Ltd., Kolkata – Respondent
I.A. (Civil) 418 of 2018 & WP(C) 6568 of 2017
Decided On : 15-06-2018
For the Petitioner: Mr. A K Roy
For the Respondent: Mr. P Baruah
The determination of the appropriate rate of anti-dumping duty is the prerogative of the Central Government based on the recommendation of the Designated Authority, and the distinction between legal interest and commercial interest is crucial in determining necessary party status.
Headnote:
Anti Dumping Duty - Imposition of Anti Dumping Duty on Import of Melamine - Customs Tarriff Act, 1975, Section 9A - Rules of 1995 - The court discussed the provisions of Section 9A of the Customs Tarriff Act, 1975 and the Rules of 1995, which provide for the imposition of anti-dumping duty and the procedure for investigation by the Designated Authority. The court emphasized the legal rights of the domestic industry to initiate an investigation and assist the Designated Authority, and clarified that the determination of the appropriate rate of anti-dumping duty is the prerogative of the Central Government based on the recommendation of the Designated Authority.
Fact of the Case:
The writ petitioner challenged the imposition of anti-dumping duty on the import of melamine by the Central Government. The applicant, a domestic industry, sought to be impleaded as a respondent, claiming that the result of the petition would affect its legal rights. The court examined whether the applicant had a legal interest in the matter.
Finding of the Court:
The court found that the domestic industry, although having an interest in the outcome of the petition, did not have a legal interest in the imposition of the anti-dumping duty. The court allowed the applicant to intervene in the proceeding to provide submissions and materials.
Issues: The main issue was whether the domestic industry had a legal interest in the imposition of anti-dumping duty and whether it should be impleaded as a respondent in the petition.
Ratio Decidendi: The court clarified that the determination of the appropriate rate of anti-dumping duty is the prerogative of the Central Government based on the recommendation of the Designated Authority. It emphasized the distinction between legal interest and commercial interest in the context of necessary party determination.
Final Decision: The court allowed the applicant to intervene in the proceeding to provide submissions and materials, despite finding that the applicant did not have a legal interest in the imposition of the anti-dumping duty.
Heard Mr. AK Roy, learned counsel for the applicant. Also heard Dr. A Saraf, learned Senior Counsel for the writ petitioner and Mr. B Sarma, learned Standing counsel for the Customs Department.
2. WP(C) No.6768/2017 has been preferred by the writ petitioner assailing, amongst others, the Notifications dated 06.10.2017 and 28.01.2016 of the Central Government by which anti dumping duty had been imposed on the import of melamine.
3. By the Notification dated 28.01.2016, the Government of India in the Ministry of Finance, Department of Revenue in exercise of its powers under Section 9A of the Customs Tarriff Act, 1975 (in short Act of 1975) had imposed an anti dumping duty @ 331.10 USD per metric tone in respect of imports of melamine made from Peoples’ Republic of China, either as a country of origin or as a country of export. By the other Notification dated 06.10.2017 certain anti dumping duties were imposed on the import of melamine from certain countries other than from the Peoples’ Republic of China.
4. In respect of the Notification dated 06.10.2017, it is stated by Mr. B Sarma, learned counsel for the Customs Department that by a subsequent Notification of 19.03.2018, the imposition of anti dumping duty for import of melamine from countries other than the Peoples’ Republic of China has been withdrawn in the meantime.
5. The imposition of anti dumping duties is provided under Section 9A of the Act of 1975 where Section 9A(5) thereof provides that the anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. It is further provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years. It further provides that in the event, the review initiated before the expiry of the aforesaid initial period of five years could not be brought to its conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.
6. The Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for short, Rules of 1995) provides for the procedure by which the Central Government is required to arrive at its conclusion as to whether any dumping or injury is being caused to the domestic industry. For the purpose, Rule 3 of the Rules of 1995 provides for appointment of Designated Authority by a notification in the Official Gazette and Rule 4 provides for the duties of the Designated Authority, who, amongst others, is to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article and also to submit its findings, provisional or otherwise to Central Government as to the normal value, export price and the margin of dumping in relation to the article under investigation.
7. Rule 5 provides that the investigation by the Designated Authority shall be initiated only upon receipt of a written application by or on behalf of the domestic industry. Rule 6 further provides that such application of the domestic industry, amongst others, shall contain the basis on which dumping is alleged in the application. Rule 6 (7) also provides that the Designated Authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation, which again is with a rider under Rule 7 which provides that if any information is provided to the Designated Authority on a confidential basis by any party in the course of investigation, the Designated Authority on being satisfied as to its confidentiality, treat such information to be confidential and such information be not disclosed to any other party
