TMI Blog2013 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court had entertained writ petitions, wherein, similar issues had arisen, as in the present cases. Therefore, the contentions raised on behalf of the respondents concerned stating that this Court does not have the jurisdiction to entertain the writ petitions cannot be accepted. Accordingly, this Court holds that the writ petitions are maintainable, before this Court. It would not be appropriate for this Court to interefere with the proceedings of the Designated Authority, at the stage of the issuance of the Disclosure Statement, by the said authority, under Rule 16 of the Anti Dumping rules, especiallly, in view of the fact that the petitioners have not shown sufficient cause or reason for such intereference. As such, the writ petitions are found to be premature in nature and that they have been filed based on a mere apprehension that the impugned Disclosure Statement issued by the Designated Authority would have an adverse effect on the petitioners, at the later stages of the proceedings. - writ petition dismissed. - W.P.Nos.25304 and 25669 of 2012 and M.P.Nos.1, 2 and 3 of 2012 and M.P.Nos.1, 2, 3, 4, 5 and 6 of 2012 - - - Dated:- 30-11-2012 - M. Jaichandren,JJ. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cause of action for the filing of the present writ petitions has arisen, within the territorial jurisdiction of this Court. Therefore, this Court may be pleased to hear and decide the present writ petitions, on merits and in accordance with law. 5. It has been further stated that the first respondent Designated Authority is a statutory authority, set up under Rule 3 of the Rules. As per Rule 4 of the said Rules, the Designated Authority would recommend the payment of Anti-Dumping Duty, which, if levied, would be adequate to remove the injury that may be caused to the domestic industry. The second respondent is authorised, as per the provisions of the Customs Tariff Act,1975, and the Rules, to impose Anti-Dumping Duties, as may be applicable, on the recommendation of the first respondent Designated Authority. The third respondent is authorised to collect the duty, for and on behalf of the second respondent. The fourth respondent the domestic industry, had filed the application before the first respondent Designated Authority, for the imposition of Anti-Dumping Duties, in respect of the subject goods being imported by the petitioner. The fifth respondent is another Indian produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selling prices and to make profits, despite the increase in the import price, was clearly due to the prevailing domestic competition and due to the other circumstances, including the loss of production due to strike by the employees. 7. It had also been stated that the interested parties had clearly established that the movement in selling prices and the consequential profit and loss of the domestic industry are not attributable to the dumped imports. It had also been poined out that the domestic industry had been affected due to various factors, including the incidence of high fixed cost coming out of the new production facilities, which could not be fully optimised, the start up operations, the movements in the costs, the domestic competition and the lack of demand to utilise the capacities. However, the first respondent Designated Authority had issued the impugned Disclosure Statement, based on a false premise, without taking into account the facts and circumstances of the case and the legal provisions applicable to the issues under consideration. 8. It has been further stated that the first respondent Designated Authority seems to hold that there is injury to the domestic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the State of Rajasthan, the goods are imported through the Chennai Port, for catering to the South Indian Market, from its group companies in Thailand and in other such places. 10. It has been further stated that the first respondent Designated Authority had initiated an investigation against the import of `Plain Gypsum Plaster Boards' (hereinafter referred to as the `subject goods') from China PR, Indonesia, Thailand and the United Arab Emirates, on 21.7.2011, under Rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, hereinafter referred to as `the Rules'. In the initation notification the first respondent had required all the exporters from the subject countries, namely, China PR, Indonesia, Thailand and the United Arab Emirates and the importers of the subject goods in India, to submit the relevant information in the manner and form that had been prescribed. The petitioner and its related exporters from Thailand had filed the required information in the prescribed format, on 10.10.2011. They had also made their detailed submissions regarding the investigation, on 19.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of the injury margin, which forms the basis for quantifying the rate of Anti-Dumping Duty had not been properly considered by the first respondent Designated Authority. It has been made clear, by the petitioner, that it has to incur significant selling and administrative expenses for marketing the product in question, due to which imports are resold at prices which are 40% higher than the landed prices. The contention of the petitioner that the diference between the non-injurious price and the resale price, at which the end customer can buy the product, would be sufficient to remove the injury to the domestic industry. Instead of considering such relevant factor in imposing of the Anti-Dumping Duty, the first respondent Designated Authority had taken into account a number of irrelevant factors, while issuing the Disclosure Statement. Therefore, the petitoiner has been constrained to prefer the present writ petition before this Court challenging the Disclosure Statement issued by the first respondent Designated Authority, dated 6.9.2012, and to forbear the first respondent from proceeding further with the investigation, based on the said statement. 13. The learned counsels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present writ petitions. No Final Findings have been rendered, under Rule 17 of the Anti-Dumping Rules, 1995, and therefore, the present writ petitions, filed by the petitioners, are premature in nature. Further, no final Anti-Dumping Duty had been levied, under Rule 18 of the said Rules, as no notification has been issued by the Central Government, till date. It has also been stated that no final Anti-Dumping Duty is being paid by the petitioners. As such, no cause of action had arisen for the filing of the writ petitions, before this Court, invoking its extraordinary jurisdiction, under Article 226 of the Constitution of India. 16. The learned counsel appearing on behalf of the respondents concerned had relied on the decision of the Supreme Court, in ONGC Vs. Utpak Kumar Basu, (1994) 4 SCC 711, and the decision reported in Outokumpu Stainless OY Ltd Vs. UOI and Others (W.P.Nos.29672 to 29674 of 2011, dated 10.7.2012), in support of his contentions. As such, the Disclosure Statement issued by the Designated Authority cannot be challenged, at this stage, by way of the writ petitions filed before this Court, as it does not have the effect of causing any prejudice to the parties co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be granted by the Courts of law, at this stage, restraining the issuance of the Final Findings, under Rule 17 of the Anti-Dumping Rules, 1995, as held by the Supreme Court, in Association of Synthetic Fibre Industry Vs. J.K.Industries Ltd, 2006(199) ELT 196 (SC). In such circumstances, this Court may be pleased to dismiss the writ petitions, in limine, as they have been filed before this Court, without jurisdiction and without having any merits. 19. Mr.P.S.Raman, the learned counsel appearing on behalf of the petitioner, in W.P.No.25304 of 2012, had submitted that this Court would have the necessary jurisdiction to hear and dispose of the said writ petition, filed by the petitioner, under Article 226 of the Constitution of India. He had submitted that this Court would have the territorial jurisdiction to hear the matter, as per Article 226(2) of the Constitution of India. Further, the Disclosure Statement issued by the Designated Authority and the Final Findings to be issued by the said authority would have statutory force and they would be binding on all the interested parties concerned, even though they may be at different places in India. The petitioner company has its regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Findings. Therefore, the Designated Authority ought not to be proceeding with the Anti-Dumping investigation, relating to the subject goods, pursuant to its Disclosure Statement, dated 6.9.2012. He had relied on the following decisions in support of his contentions: 1) Union of India Vs. Competition Commission of India and others, AIR 2012 Delhi 66. 2) Hemant Sharma and others Vs.Union of India and others, 186(2012) Delhi Law Times 17 3) All India Chess Federation Vs. Union of India and others, LPA No.972 of 2011 (Delhi), dated 22.11.2011 4) Competition Commission of India Vs. Steel Authority of India Limited and another, (2010) 10 SCC 744. 22. The learned counsel appearing on behalf of the petitioner, in the writ petition, in W.P.No.25669 of 2012, had further submitted that the Designated Authority had not collected the proper data necessary for considering the relevant issues which had arisen for his consideration. Further, the petitioner should have been given an opportunity to submit its comments on the data relied on by the Designated Authority. The Designated Authority had made certain decisions, as he had not accepted certain statements made by the petitioner. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signated Authority, to the Competition Commission had not been raised by the petitioners, at any stage, earlier. He had further submitted that the writ petitions are premature in nature, as they have been filed challenging the Disclosure Statement issued by the Designated Authority, under Rule 16 of the Anti-Dumping Rules, 1995. Therefore, no cause of action would arise at the stage of the issuance of the Disclosure Statement, by the Designated Authority. The Disclosure Statement issued by the Designated Authority cannot be said to be adversely affecting the interests of the petitioners, as it is only recommendatory in nature. Based on the Dislosure Statement the designated authority has to render the Final Findings, as per Rule 17 of the Anti-dumping Rules. Thereafter, the Central Government may issue a notificaiton, with regard to the levy of Anti-Dumping Duty, if any. He had further submitted that, in view of the order, dated 2.7.2012, passed by this Court, in M/s.Boral gypsum India Private Limited Vs. The Designated Authority, (W.P.No.10348 of 2012), it would not be open to the petitioner to challenge the Disclosure Statement issued by the Designated Authority and therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Designated Authority, is an abuse of process of law, as held in AUTOMOTIVE TYRE MANUFACTURES ASSOCIATOIN Vs. UOI, 2011 (263) ELT 481 (SC). The writ petitions filed by the petitioners are premature in nature and contrary to the order passed by this Court, in M/s.Boral gypsum India Private Limited Vs. The Designated Authority, (W.P.No.10348 of 2012, dated 2.7.2012). Further, an efficacious appellate remedy is available to the petitioners to challenge the levy of Anti-Dumping Duty, if any, under Section 9C of the Cutoms Tariff Act, 1975. As such, the writ petitions, filed by the petitioners, are not maintainable and they are also liable to be dismissed, as devoid of merits. 29. In Union of India Vs. Competition Commission of India and others, AIR 2012 Delhi 66, the Delhi High Court had held that the competition commission is not concerned with the aspect of breach of contract or with regard to the implementation of the contract. Its mandate is to ensure the compliance of the provisions of the Competition Act, 2002, which are in addition to and not in the derogation of the provisions of any other law for the time being in force. 30. In Hemant Sharma and others Vs.Union of India an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Service Tax Appellate Tribunal, under Section 9(C) of the Cutoms Tariff Act, 1975. He had further submitted the a Writ of Certiorari cannot be issued to correct errors of fact, as in the present case. Only erros of law, if any, could be corrected by the issuance of such writs. He had relied on the decision, reported in Syed Yakoob Vs K.S.Radhakrishnan, (1964) 5 SCR 64 in support of his contention. The filing of the writ petitions by the petitioners, for quashing the Disclosure Statement issued by the Designated Authority, is an abuse of the process of the Court, especially, in view of the fact that all the objections raised by the petitioners are all relating to factual issues, which this Court cannot go into in the present writ petitions, filed under Article 226 of the Constitution of India. He had further submitted that no injury had been caused to the petitioners, at this stage. As such, the writ petitions have been filed by the petitioners only on a mere apprehension and based on surmices and doubts, which have no relevance to the issues arising for the consideration of the Designated Authority concerned. It cannot be presumed that the Designated Authority would not perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government it cannot be said that the petitioners could be aggrieved parties. Even otherwise, it would be open to the petitioners to challenge the notification that may be issued by the Central Government, before the Customs, Excise and Service Tax Appellate Tribunal, Sction 9 of the Customs Tariff Act, 1975. Thus, it is clear that the writ petitions filed by the petitioners, challenging the Disclosure Statement issued by the Designated Authority, are premature in nature. Further, the contentions raised on behalf of the petitioners that the Designated Authority ought to have referred the matter to the Competition Commission, under Section 21 of the Competition Act, 2002, cannot be accepted. It is noted that Section 62 of the Competition Act, 2002, makes it clear that the provisions of the said Act shall be in addition to and not in derrogation of any other provision or any other law for the time being in force. As such, it cannot be said that it would be mandatory on the part of the Designated Authority to refer the matter to the Competition Commission, under Section 21 of the said Act, especially, in view of the fact that specific time limits have been prescribed for the Des ..... X X X X Extracts X X X X X X X X Extracts X X X X
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