2019 (7) TMI 356 - HC - Customs

Seeking continuation of anti dumping duty (ADD) on import of Paracetamol from China PR - withdrawal of Anti dumping duty after sunset review - Section 9A(1) of the Customs Tariff Act, 1975 - Inadequate disclosure of essential facts thereby violating the principles of natural justice and denying the domestic industry an opportunity to defend its interests. - alternative remedy in terms of Section 9C of the Act - HELD THAT:- There is no inflexible proposition of law that in no case, the final findings of the Designated Authority can be subject to challenge under Article 226 of the Constitution of India. It is well settled principles of law that in a given case even if there is alternative remedy available, the High Court under Article 226 of the Constitution of India has power to issue necessary order.

The petitioners have shown how there is diametrical conclusion reached in the Final Finding from the particulars and objections in the earlier part of Final Finding as well as Disclosure Statement, in his conclusion reached in the Final Finding in its submissions, which have been reproduced hereinabove. On analysis of the same, it appears that while considering the import as insignificant which constituted 98% of the total import and 6% of consumption in India which more than insignificant as defined in Rule 14(d) of the Rules has not been properly considered by respondent No.2 - according to Rule 14(d), the percentage has been given in the import of the like product. Now, admittedly, in view of para-62 at page No.265, the imports are 5.84% which is above the insignificant import as per Rule 14(d). Thus, the observations made by the DA is misreading of the facts and the DA has not properly appreciated this very observation while reaching in the conclusion in Final Finding and this fact is corroborated from the Final Finding itself.

Thus, according to Rule 14(d), the percentage has been given in the import of the like product. Now, admittedly, the imports are 5.84% which is above the insignificant import as per Rule 14(d). Thus, the observations made by the DA is misreading of the facts and the DA has not properly appreciated this very observation while reaching in the conclusion in Final Finding and this fact is corroborated from the Final Finding itself.

It appears from the Disclosure Statement as well as Final Finding that all the above facts are narrated therein, but without considering those facts and in diametrically opposed to the same, the DA has made conclusion. Thus, the submission of the petitioners that the DA has not properly appreciated the fact and has went beyond the evidence and information examined, is acceptable. It appears from the record that the conclusion arrived at by DA in Final Finding is not based on the observations made by him in Disclosure Statement as well as in Final Finding itself. Thus, there is lack of non-application of mind on the part of the authority concerned.

The impugned Final Finding recorded in the Notification No.7/16/2018-DGAD dated 29.01.2019, cannot be said to be strictly in accordance with the provision of Rule 23 of the Rules, as there is nonadvertance to the material placed on record and there is noncompliance with the principle of natural justice as no requisite information was made available and the conclusions are diametrically opposed to the material on record.

The respondent no.2 is hereby directed to undertake the exercise of recording its final finding afresh in accordance with the provisions of Rule-23 of the Rules and after affording full opportunity to the parties and complying with the principles of natural justice and respondent no.1 shall appropriately issue notification extending the anti dumping duty on the product in question, till the final findings are rendered.

Petition allowed.