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2020 (1) TMI 211 - RAJASTHAN HIGH COURTLevy of safeguard duty - final notification issued on 16-7-2018 - import of solar cells whether or not assembled in modules or panels - petitioner argued that safeguard duty is contrary to the applicable principles and the norms governing the determination of injury and consideration of all other factors set out in the Act as well as Rule 8 of the Rules of 1997 - HELD THAT:- Duty imposition was preceded by an application filed on behalf of domestic industry. The investigation conducted covered the periods 2014-15 to 2017-18. In January, 2018, the preliminary findings were recorded. In fact, the preliminary findings had recommended imposition of 70% safeguard duty. After the findings were recorded, comments and objections of the interested parties were sought. Interestingly, the petitioner had participated in the proceedings which culminated in the final findings. This is a significant aspect because the likely prospect as to imposition of safeguard duty (at the point in time when the petitioner participated in the bid (which opened in April, 2019) in which it was ultimately successful - in June, 2019 was known to it. This aspect, in the opinion of the Court, is important because the petitioner was well aware that imposition of safeguard duty was likely- even the preliminary findings had been announced on 5-1-2018. In the opinion of this Court, on a prima facie reading of the elaborate findings, all relevant factors which the Director General had to take into account, were indeed considered when the impugned final findings were issued - it is evident that the petitioner would not be prejudiced, because it has negotiated a condition that the impact of the levy is not borne by it. Furthermore, this court also notices that being an indirect tax, the levy is borne by the ultimate consumer; the petitioner, as supplier would factor in the tax impact in the cost. This court also notices that the primary object of imposing safeguard duty is to eliminate injury or real threat of injury, posed by import of the product. That objective would be entirely defeated if the court were to blindly endorse a claim of illegality regarding imposition of the duty, which was preceded by elaborate hearing of all parties - including the petitioner, and a reasoned order, which culminated in the impugned notification. Granting such a stay or interim order would facilitate entry of the goods at vastly lower prices, precisely what Parliament intended to curb through the levy. Clearly, the balance of convenience is not in favour of the petitioner, for grant of such relief. The Court is therefore, of the opinion that no interim orders are called for. The stay application is dismissed - List both the writ petitions for final hearing on 22-10-2019.
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