TMI Blog2010 (3) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... PDS Legal, for the Petitioner. S/Shri M.I Sethna, Sr. Counsel with S.R. Ganbavale, A.M. Sethna, R.K. Abhichandani, Sr. Counsel i/b Uday Warunjikar, D.B. Shroof, Sr. Counsel with S.N. Kantawala i/b Brijesh Pathak and P.S. Jetley, for the Respondent. [Order per: V.C. Daga, J.] - Perused petition. Heard the learned Counsel appearing for the parties to the petition. 1. This petition takes exception to the final findings No.14/2/2007/DGAD, dated 26th August, 2009 and the consequent customs Notification No. 116/2009, dated 8th October, 2009 issued by the Ministry of Finance and implementing the recommendations contained in the said final findings with further prayer ordering and directing respondent Nos. 1 and 2 to withdraw and/or cancel the said impugned final findings together with the notification with further prayer to restrain them from acting upon the said order and notification and from collecting anti dumping duty levied in terms of the said notification dated 8th October, 2009. 2. The petitioners have also prayed for interim relief in terms of the final prayer. In other words, the final prayer and the interim prayer both are identical. In addition to the chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Ltd. v. Union of India reported in 2005 (181) E.L.T. 297 (S.C.) wherein the Apex Court observed as under: 8. It has been drawn to this Courts attention by the Ld. Solicitor General that in terms of Section 129(5) of the Customs Act, the President of the Tribunal is expressly authorised to delegate his functions under the Act to the Vice President of the Appellate Tribunal. By Notification dated 16-7-1999 the then President of the Tribunal (then known as the Customs Excise and Gold (Control) Appellate Tribunal) in exercise of the powers conferred by sec. 129(5) of the Customs Act, 1962 delegated his power and functions qua President in his absence, whether on leave or otherwise to the senior Most Vice President to perform such of the functions of the President as might be necessary for the efficient functioning of the Tribunal. Therefore, until the President is appointed it would be open to the Senior Vice President to discharge the functions of the President. We are told that Benches have already been constituted for hearing appeals. 9Since the Tribunal is already in seizin of the appeal filed by the appellant from the final findings on the new shipper review as well as the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made out. Balance of convenience must be in favour of making of an interim order. 9. Mr. Abhichandani while expanding the scope of the preliminary objection went on to contend that the validity of anti dumping rules is challenged in the petition only to circumvent the appellate forum. In his submission, the Tribunal can also examine the validity of the Rules. In support of his submissions he placed reliance on the judgment in the case of L. Chandrakumar v. Union of India and Others reported in 1997 (92) E.L.T. 318 (S.C.) = (1997) 3 Supreme Court Cases 261 and pressed into service paragraphs 90, 91, 93 and 99 thereof. He placed heavy reliance on the observations of the Apex Court which read as under: The Tribunals created under Article 323-A and Article 323-B 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 Tribunals concerned falls. With the aforesaid submission Mr. Abhichandani also tried to justify the rules and reasonableness thereof. 10. Mr. Abhich ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the light of the principles for determination of margin of dumping, export price, normal value and for determination of injury as provided in Annexures I and II will have to be gone into which this Court will not be able to go in the writ jurisdiction since that would amount to investigation of facts which may turn out to be disputed one. Investigation thereof may not be proper in the writ jurisdiction of this Court. 15 . So far as the alternative remedy available to challenge the anti dumping rules canvassed by Mr. Abhichandani is concerned, it is necessary to turn to the provisions of Article 323B inserted by the Constitution (42nd Amendment) Act, 1976, which clearly contemplate constitution of a Tribunal of the nature mentioned therein. Article 323B of the Constitution merely authorizes the appropriate legislature to make laws to set up Tribunals to the exclusion of Courts. 16. Article 323B(1) enables the Parliament to provide, by legislation, for the adjudication by Tribunals, of the matters specified in clause (2) including levy, assessment, collection and enforcement of any tax under sub-clause (a) thereof. Such laws made under clause (1) may provide for the establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. 20. The aforesaid view is in consonance with the view taken by the Apex Court in the case of Central Bank of India v. Vrajlal Kapurchand Gandhi and another (2003) 6 SCC 573 wherein it has been held that the constitutionality of a statute cannot be decided by the Court or Tribunal constituted under the statute. 21. On the above legal backdrop, no power, prima fade, appears to have been conferred on the appellate Tribunal established under Section 129 of the Customs Act to decide validity of Rules, as such petition in hand to the extent it raises question relating to the validity of Rules will have to be entertained to ex amine the merits of the challenges set up in the petition. Hence, following. order. Order 22. Rule so far as prayer clause (a) is concerned. So far as prayer clauses (b) and (c) are concerned challenges set up therein stand rejected leaving the petitioner to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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