2017 (9) TMI 1612 - HC - Customs

Maintainability of petition - vires of Annexure-III to the Customs Tariff (Identification Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995 - decision in the case of L. Chandra Kumar Versus Union Of India And Others 1997 (3) TMI 90 - SUPREME Court referred where it was held that The Tribunals created under article 323A and article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will however be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. Held that - The power of the CESTAT to consider challenge to the vires of a subordinate legislation flows not from the CTA but the decision of the Supreme Court in L. Chandra Kumar (supra). In the said judgment the Supreme Court discussed the powers of the Administrative Tribunals (ATs) constituted under the Administrative Tribunals Act 1985 - Article 323B (2) (b) envisages the creation of Tribunals to adjudicate on issues concerning import and export across customs frontiers. There can be no manner of doubt that the CESTAT is one such Tribunal described under Article 323B (2) (b) of the Constitution of India. In relation to both types of Tribunals the above observations of the Supreme Court in L. Chandra Kumar would hold good. Petition dismissed being not maintainable.

Summary

Issues:
Challenge to the vires of Annexure-III to the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. Interpretation of guidelines for determination of non-injurious price for domestic industry. Jurisdiction of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) to entertain appeals regarding vires of subordinate legislation.

Analysis:

1. The petitions before the court challenged the validity of Annexure-III to the ADD Rules and sought a reading down of the guidelines for determining the non-injurious price for domestic industry to consider the actual cost of production. The primary issue was the vires of the ADD Rules.

2. A preliminary objection was raised regarding the maintainability of the petitions based on the judgment in L. Chandra Kumar v. Union of India. The court was referred to specific paragraphs emphasizing the jurisdictional powers of Tribunals in matters questioning the vires of statutory provisions.

3. The petitioners requested the court to decide the issue instead of referring them to CESTAT, highlighting the prolonged pendency of the petitions.

4. The Respondent Union of India argued that litigants cannot directly approach High Courts to question the vires of statutory legislations, as per the judgment in L. Chandra Kumar, unless the legislation creating the particular Tribunal is challenged.

5. The jurisdiction of CESTAT under Section 9C of the Customs Tariff Act was discussed, with the argument that CESTAT's powers are limited to entertaining appeals arising from decisions of the Designated Authority under the ADD Rules.

6. The court rejected the submission that CESTAT lacks the power to declare subordinate legislation ultra vires, citing the decision in L. Chandra Kumar. It was clarified that CESTAT, being a Tribunal under Article 323B of the Constitution, has the authority to examine the vires of Annexure III to the ADD Rules based on the Supreme Court's judgment.

7. Consequently, the court declined to entertain the petitions, advising the Petitioners to seek relief from CESTAT as per the law.

8. The petitions and pending applications were dismissed with the mentioned observations, concluding the judgment on the issue of jurisdiction and vires of the ADD Rules.