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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.604 OF 2021

MAHLE ANAND Thermal Systems Private Limited

… Petitioner

Vs.

The Union of India, Through Joint Secretary,

Ministry of Commerce, Department of Commerce

& Ors.

… Respondents

-------

Mr. Sriram Sridharan for Petitioner.

Mr. Pradeep Jetly, Senior Advocate a/w. Mr. J.B. Mishra and Ms. Sangeeta

Yadav for Respondents.

-------

CORAM

:

K.R. SHRIRAM &

A.S. DOCTOR, JJ.

DATED

:

10^th AUGUST 2022

P.C. :

1.

Petitioner is a company registered under the Companies Act,

1956 and engaged inter alia in the manufacture of heat exchangers

including radiators, charge air coolers, condensers, oil coolers, heater

cores, evaporators, heat ventilation and air conditioning (HVAC) systems

and parts of automobiles. Petitioner used to import the following products

from China PR for use and manufacture of the above products :-

a)

Aluminium Manganese – Silicon based alloy, Clad

Aluminium foil classifiable under Heading 76.07 of the

Customs Tariff; and

Mugdha

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MUGDHA

M

PARANJAPE

Digitally

signed by

MUGDHA M

PARANJAPE

Date:

2022.08.19

12:37:19

+0530

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b)

Aluminium Manganese – Silicon based alloy, Unclad or

non-clad Aluminium foil under Heading 76.07 of the

Customs Tariff.

2.

Petitioner has approached this Court challenging the

insistence of Respondent No.4, The Commissioner of Customs (Nhava-

Sheva) for payment of anti-dumping duty on import of unclad/non-clad

aluminium foil from China PR.

3.

Respondent No.5, the Directorate General of Trade Remedies

(DGTR) had initiated an investigation vide Notification dated 15^th

December, 2015 with respect to levy of anti-dumping duty on import of

aluminium foil from China PR on a Petition filed by the domestic industry.

During the investigation, various exporters as well as importers

represented their case before Respondent No.5, so also Petitioner as an

interested party. It was specifically requested by Petitioner to exclude clad

as well as unclad or non-clad aluminium foils which are meant for use in

automobile industry from the scope of the investigation because these

goods were not produced or manufactured in India and hence, there will

be no question of injury to the domestic industry. Based on the

representations, domestic industry agreed to exclude both clad as well as

unclad/non-clad aluminium foils from the purview of the investigation

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itself since the said imported goods were not manufactured in India. As

stated in the Petition, these goods have been exempted from levy of

safeguard duty vide Notification dated 19^th June, 2009. The investigation

culminated into issuance of Final Findings dated 10^th March, 2017, copy

whereof is annexed at Exhibit ‘B’ to the Petition, by Respondent No.5 with

respect to levy of additional anti-dumping duty on import of aluminium

foil from China PR. The Final Findings also record the acceptance of the

domestic industry to exclude the following products from scope of the

investigation :

“Aluminium – Manganese – Silicon based and/or clad Aluminium

– Manganese – Silicon based alloys, whether clad or unclad: with

post brazing yield strength greater than 35 MPA, falling under

tariff heading 7607 for use in heat exchangers including radiators,

charge air coolers, condensers, oil coolers, heater cores,

evaporators, heat ventilation and air conditioning (HVAC) systems

and parts thereof”

4.

Thereafter, the Central Government through Ministry of

Finance, Department of Revenue issued a Notification No.23 of 2017

dated 16^th May, 2017 levying anti-dumping duty on the import of

aluminium foil from China PR. This Notification excluded certain goods

from levy of anti-dumping duty in light of the findings dated 10^th March,

2017 referred to earlier issued by Respondent No.5. One of the goods

exclude