TMI Blog2011 (1) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... For the sake of easy reference and convenience, the writ petitioner in both the writ petitions (M/s. Refex Refrigerants Limited) is hereinafter referred to as the petitioner and the appellant in both the writ appeals (M/s. SRF Limited) is hereinafter referred to as the complainant and the official respondents are referred to as per their ranking in W.P. No. 10709 of 2010. 2. From the materials placed on record, it is assessed that both the writ petitioner and the complainant are in the business of Refilling and Sale of Refrigerant gases used in Air Conditioning and Refrigeration Industry. Till about 1999, Chloroflouro Carbon Gas (CFC) was commonly used in Air-conditioning and Refrigeration and since the use of the said gas was considered unfriendly to the environment, since having Ozone depleting effect, under the Montreal Protocol of 1999, to which our country is also a signatory, it was decided that CFC shall be substituted by Hydrofiuoro Carbon Gas (HFC), a non-Ozone depleting gas and the signatory countries are required to freeze the production of CFC gas by July 1999, achieve 50% reduction of CFC production by January 2005 and completely stop use of CFC gas by Januar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials placed on record that when the preliminary findings dated 19-2-2010 was given by the second respondent as the Designated Authority, recommending provisional anti-dumping duty on imports of subject goods from the subject countries (China and Japan in the case on hand) in the form and manner provided for in the duty table annexed therewith, the petitioner herein has filed W.P. No. 6952 of 2010 before this Court, praying to issue a writ of mandamus to direct the respondents 1 to 3 to consider their representations dated 24-9-2009 and 5-4-2010 and a learned single Judge of this Court, by the order dated 19-4-2010, while disposing of the said writ petition has observed and directed as follows : 6. Going by the said regulation governing the investigation, the only grievance of the petitioner herein is that without adverting to the various contentions raised therein, the provisional order has been passed. It is further stated that the complainant itself is an importer of the goods. Having regard to the serious prejudice faced and in the light of the absence of any remedial provisions as against the provisional order of the respondent, it is absolutely essential that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that oral hearing (public hearing) has been fixed by the Designated Authority on 10-5-2010 wherein the domestic industry/importers/exporters/users and other interested parties in connection with the anti-dumping investigations are permitted to participate, has issued the following direction : Considering the facts and circumstances of the case and submissions made by the learned senior counsel for the petitioner as well as learned standing counsel appearing for the respondents, the petitioner is directed to participate in the oral hearing scheduled on 10-5-2010 and raise all its contentions which are open to it under law and thereafter, the Designated Authority shall take a final decision in the matter. Pending such decision, the impugned notification in No. 52/2010-Customs, dated 19-4-2010 shall not be given effect to insofar as the petitioner is concerned. Notice. 8. Thereupon, as scheduled, the public hearing was conducted on 10-5-2010. But, alleging bias and pre-determined mind by the respondents 2 and 3, the petitioner has again knocked the doors of this Court by filing W.P. No. 10709 of 2010, praying to issue a Writ of Mandamus, to direct the respondents 2 and 3 to recuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that at each and every stage of the proceedings, there is clear violation of principles of natural justice, as has already been pointed out by the learned single Judge of this Court in the earlier round of litigation in W.P. No. 6952 of 2010 and as has been observed by us supra that in spite of grant of an order of stay of all further proceedings by a learned single Judge of this Court by the order dated 12-5-2010 the third respondent, against whom serious allegations of mala fide and bias have been attributed by the petitioner, has dared to proceed further, as if he has no knowledge of the proceedings before this Court, when the material on record speaks otherwise that the petitioner has served the copy of stay order on the respondents, including that of the third respondent. 11. It has been submitted on the part of the respondents that since the learned single Judge, in the earlier writ petition No. 6952 of 2010, has directed to pass orders within six weeks, the third respondent has passed the order dated 21-5-2010. We are unable to appreciate and understand this argument advanced on the part of the respondents in view of the fact that no prudent man of ordinary na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... biased towards them has became a reality, since bypassing even the stay order passed by the learned single Judge of this Court, he has proceeded to pass the order dated 21-5-2010. 13. According to the petitioner, the complainant himself is an importer and therefore, he does not fall within the fold of a domestic industry so as to maintain the complaint, and hence, based on such a complaint lodged by the complainant, the authorities should not have initiated any action. This has been stiffly opposed by the complainant, who is the appellant in the writ appeals. The question as to whether the complainant is an importer or a domestic industry is a question of fact, which could not be ascertained on the materials placed on record, since being a complex question of fact. 14. We are quite aware that in the recent pronouncement in National Thermal Power Corporation Limited v. Mahesh Dutta and Others [(2009) 8 SCC 339], the Honourable Apex Court has held, in para No. 39 of its judgment, that- .... There is no law denying or debarring High Court from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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