2019 Supreme(Gau) 1006

IN THE HIGH COURT OF GAUHATI
Achintya Malla Bujor Barua, J.
Century Plyboards I Ltd And Another - Appellant
Vs.
Union Of India And Others - Respondent
Writ Petition (Civil) No. 6568 of 2017
Decided On : 26-08-2019

Headnote:

Constitution of India – Article 14 226 – Companies Act, 1956 – Customs and Tariff Act, 1975 – Section-9A 9B 9C – Anti-dumping Duty on Dumped Articles and for Determination of injury) Rules, 1995 – Rule 2 to 12 13 to 17 23 – Marrakesh Agreement – World Trade Organization – Article 4 9 – General Agreement on Tariffs and Trade – Article VI – Anti Dumping Agreement 1994 – Competition Act, 2002 – In this writ petition, the petitioners are aggrieved by the imposition of anti dumping duty (ADD) on the import of melamine from the aforesaid countries. The notification containing the final findings recommending imposition of ADD for the import of melamine from European Union, Indonesia, Iran and Japan, as well as the notification containing the final findings sun set review recommending extension of imposition of ADD for import of melamine from China and the notification containing the sunset review investigation interim recommendation for extending the imposition of ADD in respect of import of melamine from European Union, Indonesia, Iran and Japan, all issued by the designated authority, are being assailed – According to the petitioners the initiation of the investigation by the designated authority on the requirement of recommending and imposing ADD for import of melamine both from the countries under the European Union, Indonesia, Iran and Japan as well as that of China, were made on an application made for the purpose by the intervener Gujarat State Fertilizer Corporation (GSFC) – The petitioners are aggrieved to the extent that the designated authority while arriving at the final findings submitted for the purpose had not followed the prescribed procedure under the Customs and Tariff Act, 1975 (CTA 1975) as well as the Anti-dumping Duty on Dumped Articles and for Determination of injury) Rules, 1995 (ADR 1995) – Based upon the aforesaid submissions of the rival parties and also upon considering the materials that the Court had been taken through, the following core issues are discernible which requires adjudication:- (A) Whether the writ petition is maintainable in view of the provisions for appeal under Section 9C of the CTA 1975 – (B) Whether the information provided by the intervener GSFC in their application under Rule 5(1) of ADR 1995 and at other stages would be held to be confidential under Rule 7 to the extent that even the normal price, export price and non injurious price determined by the designated authority would not be disclosed in the course of the proceedings held by it as well as in the final findings – (C) Whether the principle of natural justice had been violated by the designated authority – (D) Whether the procedure adopted by the designated authority in arriving at a decision to impose ADD and to determine the rates thereof conform to the procedure prescribed under the ADR 1995 – (E) Whether the procedure adopted by the designated authority in arriving at the final findings is discriminatory and arbitrary – (F) Whether the intervener GSFC in view of its imports of melamine can still be considered to be a domestic industry – (G) Whether the evaluations of the ADD in terms of USD at an exchange rate as it prevailed in the year 2012 from countries under the European Union, Iran, Indonesia and Japan and at an exchange rate as it prevailed in the year 2015 from China, as well as the determination of the normal value, export price, margin of dumping and the non-injurious price in terms of USD at its exchange rate as indicated above had brought in a situation which would be inconsistent with the factual situation that may be caused due to subsequent fluctuations in the exchange rate – Held, the issue on the question of maintainability of writ petition would be decided at a subsequent stage after giving a consideration to the other issues involved – (B)Court again take note that Rule 7(1) does not begin with the non obstante clause with regard to Rule 16, meaning thereby, that the requirements of Rule 16 are excluded from the provisions of confidentiality under Rule 7(1) –Accordingly, reading the whole of the provisions of Rule 7 including Rule 7(3) and the provisions of Rule 16 of the ADR 1995, Court is of the view that the stand taken by the designated authority as well as by the respondents that the normal value, export price, margin of dumping and the non injurious price arrived at in the final findings are confidential in nature and that it cannot be disclosed to anyone at any stage, are unacceptable – (C) In the instant case, accordingly, as the normal value, export price, margin of dumping and the non injurious price as determined by the Designated Authority which formed the basis for the decision to impose the ADD and determine the rates thereof, was not informed to the petitioners prior to the opportunity of hearing being given, Court is of the view that in the instant case, the principles of natural justice had been violated – (D) In the event, the designated authority seeks to invoke the provisions of paragraph 7 of Annexure-1 of ADR 1995 to determine the normal value in the exporting non-market economy country by relying upon the price paid in India of the like article, as held by the Supreme Court in Shenyang Mastsushita S Battery Co.Ltd (supra), the procedure of adopting a selected third country has to be exhausted first – (E) Considering the procedure adopted by the designated authority in not making all the possible efforts to arrive at a correct determination as regards the normal value, export price and the margin of dumping as well as the non-injurious price, more particularly, in discarding such information that may be provided by the interested parties without even arriving at a satisfaction as to its correctness, we are of the view that the procedure adopted would not only be contrary to the provisions of Rules 6(8) and 8 of the ADR 1995, but would also be discriminatory and arbitrary (F) Accordingly, in the facts and circumstance of the present case whether the intervener GSFC would continue to remain a domestic industry in spite of being indulging in import to a certain extent, in Court’s view a discretion is required to be exercised by the designated authority and in doing so such discretion should neither lead to arbitrariness nor it violate the provisions of Article 14 of the Constitution of India – (G) The designated authority may take a closer look at the aforesaid aspect and take its own decision so as to render the imposition of the ADD in consistent with the provisions of Section 9A(1) of the CTA 1975 – In view of the above as the principles which govern the maintainability of a writ petition under Article 226 of the Constitution as per the propositions laid down by the Supreme Court are present in the instant case, we are of the view that the writ petition would be maintainable in spite of the provisions of Section 9C of CTA 1975 – The very fact that the core requirements of Section 9A(1) as regards the normal value and the margin of dumping having not been disclosed and further even the non-injurious price of the domestic industry also having not been disclosed, Court is to infer that Clause 7 of the ADR 1995 had been invoked and even the determination of the designated authority of the above aforesaid parameters were treated as confidential – For the reasons stated herein above while dealing with the confidentiality under Clause 7 we are unable to accept that even the parameters determined for invoking the anti-dumping duties would remain confidential – As already interpreted Clause 16 requires that the designated authority before giving its final findings to inform all interested parties of the essential facts under consideration which form the basis of its decision – Court may again add that the requirement of Rule 16 are not subjected to the confidentiality clause of Rule 7, where although Rule 7 begins with a non obstante clause, but such provision of it being not notwithstanding to relate only to Rules 6(2), 6(3), 6(7), 12(2), 14(4) and 17(4) and the non obstante provision does not include Rule 16 – In view of the provisions of the notification dated 18.06.2019 requiring the interested parties to request for a review if they are so aggrieved by the continued imposition of the ADD and also in view of the provisions of Section 9A(5) read along with the proviso thereof and further in view of the provisions of Rule 23 (1A), Court is of the view that the ends of justice would be met in the designated authority undertakes an exercise to review the requirement of imposing an ADD for the import of melamine from the Peoples Republic of China and as required under Rule 23(3), such review be done by following the provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 of the ADR 1985. In doing so the provisions of Rules 6(8), 7, 8 and Rule 16 be followed in the manner in which the said rules had been interpreted in this judgment – Further it is provided that as required under Rule 12 the preliminary findings be submitted within a period of 6 months from initiating the review investigation and the ADD if found leviable be done as per the provisions of Rule 13 – Thereupon the final findings be submitted by following the procedure provided under Rule 16 and the imposition of ADD, if levied be done as per Rules 18, 19 and 20 – Till such preliminary findings are submitted the ADD, if required, be levied and imposed as provided in the interim order – In terms of the above the writ petition stands disposed of – Petition Disposed Of