TMI Blog2018 (1) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... the persons do not rush to the High Court for issue of a Writ, thereby rendering the statutory provisions almost meaningless and non-existent. The Courts have held that it is undesirable to lay down inflexible rules and, therefore, the dictum with reference to the pure theory of jurisdiction may have limitations and cannot be applied as a universal principle. Nevertheless, it is necessary to keep in mind the distinction between lack of jurisdiction and an alleged error in exercise of jurisdiction, i.e. a wrong or erroneous order. Parameters for interference in exercise of writ jurisdiction, inspite of alternative remedy in the two situations is different. In the former it is wider, while in the latter the Writ Court would be extra cautious and good reasons would be required to side step alternative remedy. In the context of the present case, and the submissions and counter to the same, it can, safely and without hesitation, be held that challenge is not to the lack of jurisdiction at the time of initiation but to purported failure to correctly apply the law and exercise jurisdiction. These issues can be appropriately and properly dealt with in the appellate proceedings. No spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailand and United States of America. 4. The petitioner is primarily aggrieved by the note below the table, specifying anti-dumping duty at the rate worked out as percentage of landed value of import, which reads as under: Note: The subject goods include cold-rolled Flat products of stainless steel of width greater than 1250 mm of all series not further worked than Cold rolled (cold reduced) with a thickness of up to 4mm (width tolerance of +30 mm for Mill Edged and +4mm for Trimmed Edged), excluding the following: (a) Grades AISI 420 high carbon, 443,441, EN 1.4835, 1.4547, 1.4539, 1.4438, 1.4318, 1.4833 and EN 1.4509; (b) Product supplied under Indian Patent No. 223848 in respect of goods comprising Low Nickel containing Chromium-Nickel Manganese-Copper Austenitic Stainless steel and representing Grades YU 1 and YU 4, produced and supplied by M/s Yieh United Steel Corp (Yusco) of Chinese Taipei (Taiwan). 2. Further, no anti-dumping duty shall be payable on imports of the subject goods if: (i) an importer who imports the subject goods for end use in the same form without slitting; or (ii) slitted it into 2 or more subject goods i.e. sizes above 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling the order appealed against. (4) The provisions of sub-section (1), (2), (5) and (6) or section 129C of the Customs Act, 1962 shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member. The aforesaid provision stipulates that every statutory appeal is to be heard by a Special Bench to be constituted by the President of the Appellate Tribunal i.e. Customs, Excise and Service Tax Appellate Tribunal. The Appellate Tribunal has powers as stated under Sub-Sections 1, 2, 5 and 6 of Section 129 C of the Customs Act, 1962 ( Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation before the designated authority on 21st September, 2015. Between 21st April, 2015 and 11th December, 2015 anti-dumping duty was not applicable/ imposed on imports of CRS Steel. Hence, the application was not maintainable. [4] Constitutional validity of Rule 25 of the Anti Dumping Rules has been challenged. Constitutional vires cannot be examined and decided by the Appellate Tribunal. 8. There are a plethora of decisions of this Court repeatedly refusing to entertain the writ petitions impugning anti-dumping notification. Reference can be made to order dated 16th May, 2017 passed in WP(C)No.2632/2017 Hindustan Lever Limited Vs. Union of India, order dated 24th July, 2017 passed in WP(C)No.6267/2017 M/s.Suncity Sheets Pvt. Ltd. Vs. The Designated Authority and Ors., order dated 31st October, 2017 passed in WP(C)No.9284/2017 Indian Metals and Ferro Alloys Ltd. Vs. The Union of India Ors. and order dated 4th September, 2017 passed in WP(C)6430/2011 Deepak Nitrite Limited Vs. Union of India Anr. These decisions follow an earlier decision in Alcatel-Lucent India Ltd. Vs. Designated Authority 2016 (338 ELT 397 (Del.) 9. The respondents have contested each a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, is quoted below: (1A) Where the Central Government, on such inquiry as it may consider necessary, is of the opinion that circumvention of anti-dumping duty imposed under sub-section (1) has taken place, either by altering the description or name or composition of the article subject to such anti-dumping duty or by import of such article in an unassembled or disassembled form or by changing the country of its origin or export or in any other manner, whereby the anti-dumping duty so imposed is rendered ineffective, it may extend the antidumping duty to such article or an article originating in or exported from such country, as the case may be. The section permits imposition of anti-circumvention duty also when imports take place into India in any other manner, whereby, the anti dumping duty so imposed is rendered ineffective. 13. Faced with the aforesaid position it was contended on behalf of the petitioner that expression any other manner must have a nexus and link whereby the anti-dumping duty so imposed is rendered ineffective, albeit we observe that this is not an aspect relevant when we examine the question of constitutional vires of Rule 25 on the grounds r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r country not subject to anti dumping duty. Explanation .- For the purposes of this sub-rule, it shall be established that there has been a change in trade practice, pattern of trade or channels of sales if the following conditions are satisfied, namely:- (a) absence of a justification, economic or otherwise, other than imposition of anti-dumping duty; (b) evidence that the remedial effects of the anti-dumping duties are undermined in terms of the price and or the quality of like products. Sub Rule (1) deals with the first part of Sub-Section (1A) to Section 9A. To this extent, therefore, the petitioner relies upon Sub-Rule (1) in support of its contention that the anti-circumvention duty should not have been imposed. Referring to Sub -Rule (2) it is submitted that same would not be applicable for the condition after being subjected to any process involving alteration of the description, name or composition of article refers to process of alteration of description, name or composition, which should be before it is imported into India and not after it is imported into India. The respondent on the other hand has relied upon Sub-Rule (3). Be that as it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions and to proceed with judicial review where the invoker has failed to exhaust or take recourse to alternative remedies. Requirement to exhaust the alternative remedies is considered to be fair and just as legislation has created an avenue for redress. This makes access to justice available locally, prevents the Writ Courts from being over-burdened with cases, and is based upon the precept that the appellate or specialized bodies have more expertise on the subject. Sometimes it is observed that they are substitute for judicial review. 18. The prefix wholly before the term jurisdiction in Whirlpool Corporation (supra) is significant and not otiose. The term jurisdiction in strict sense refers to the competence of the authority or the tribunal at the commencement of the proceedings. This requires examination whether the jurisdiction was initially properly assumed. Thereafter, it is within the jurisdiction of the tribunal/authority to decide. This pure theory of jurisdiction makes a distinction between jurisdictional questions of fact and law, which are sometimes also called as collateral facts and law, and facts and law which are not jurisdictional (see Paripooran J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irlpool Corporation (supra), a writ petition was filed challenging the notice issued by the Registrar on the ground that he had no power to issue such notice. The Supreme Court observed that the High Court was not right in dismissing the writ petition on the ground of failure to exhaust alternative remedy as the issue related to jurisdiction in strict sense. Reference was made to the earlier decision of the Constitution Bench in Calcutta Discount Company Limited versus Income Tax Officer, Companies District I Calcutta and Another, AIR 1961 SC 372 , a case which related to re-opening of assessment by the Income Tax Officer. The question was whether the jurisdictional facts for reopening an assessment were satisfied or the Income Tax Officer was acting without jurisdiction. 20. As a matter of caution, we would observe that the Courts have held that it is undesirable to lay down inflexible rules and, therefore, the dictum with reference to the pure theory of jurisdiction may have limitations and cannot be applied as a universal principle. Nevertheless, it is necessary to keep in mind the distinction between lack of jurisdiction and an alleged error in exercise of jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No.14/2010 dated 20th February, 2010, imposing anti-dumping duty with effect from 22nd April, 2009, mid-term review resulting in notification dated 7th February, 2012, and then the sunset review notification dated 11th December, 2015 continuing with the imposition of anti-dumping duty. The writ petition, in fact, refers to the application made by the fourth respondent in 2012 for initiation of anti-circumvention investigation and updating of the said application thereafter, pursuant to which notification No.14/01/2014DGAD dated 19th February, 2016 was issued initiating circumvention proceedings. We have deemed it appropriate and proper to refer to the factual position as mentioned in the writ petition, only to highlight that the said aspect with regard to assumption of jurisdiction on the basis of application made by the fourth respondent would be appropriately appreciated and gone into in the appellate proceedings, and should not be made a subject matter of the writ proceedings circumventing and ignoring the statutory right to appeal. 23. In view of the aforesaid discussion, we are not inclined to entertain the present writ petition and leave it open to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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