TMI Blog2018 (3) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... enge the provisions it impugns here. Therefore, its failure to do so, now results in this court’s exercise of discretion not to entertain the challenge on substantive basis. The Anti-Dumping Rules cannot be impugned as contrary to the larger purpose and spirit of anti-dumping law; a determining requirement in deciding the legitimacy of sub-ordinate legislation - the Petitioner’s submission that the determination of "normal value" as provided in para 7 of Annexure-1 read with Rule 10 of the Anti-Dumping Rules is ultra vires section 9A of the Custom Tariff Act 1975 is invalid. Petition dismissed. - W.P.(C) 1366/2018 & CM APPL. 5661-5662/2018 - - - Dated:- 13-2-2018 - MR. S. RAVINDRA BHAT AND MR. A. K. CHAWLA JJ. Petitioner Through: Mr. S.K. Bagaria, Sr. Advocate with Mr. Sunil K Jain, Mr. Pawanshree Agrawal Ms. Reeta Chaudhary, Advocates Respondents Through: Mr. Jitendra Singh Mr. Vaibhav Sharma, Advocate for R-3 and 4. S. RAVINDRA BHAT , J. 1. This writ petition questions and seeks the quashing of para 7 of Annexure-1 of the Anti- Dumping Rules as being ultra vires Section 9A of the Customs Tariff Act, 1975 and for a direction to not levy antidumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in the main Section [130E (b)] though under Section 130F conditions to the exercise of the appellate power seem to have been imposed, the precise application of which is the determination i.e. required to be made by us. ************************************************ ************************************************ 19. On the basis of the discussion that have preceded, it must therefore be held that before admitting an appeal under Section 130E (b) of the Customs Act, the following conditions must be satisfied: (i) The question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130E(b) of the Act. (ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessitating a resolution. (iii) If the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be either- (a) comparable representatives price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub-section(6); or (b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6): Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transshipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin. Paragraph 7 of Annexure-1 of the Anti- Dumping Rules reads as follows: 7. In case of imports from non-market economy countries, normal value shall be determined on the basis if the price or constructed value in the market economy third country, or the price from such a third country to other countries, including India or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has been dismissed, are findings of fact arrived at on due consideration of all relevant materials on record. 7. In the present proceedings, the Petitioner again questions the CESTAT s order dated 06.09.2016; this time saying that the determination of normal value as provided in para 7 of Annexure -1 read with Rule 10 of the Anti- Dumping Rules is ultra vires section 9A of the Customs Tariff Act, as the Act does not provide for determining the normal value on the basis of actual price paid or payable in India as the same would be contrary to the very purpose of imposing anti-dumping duty which is on the basis that the exporter should not be dumping the goods less than the price which is paid in the ordinary course of trade in the exporting country. The Petitioner urges for the quashing of para 7 of Annexure-1 of the Anti- Dumping Rules as being ultra vires Section 9A of the Customs Tariff Act, and thereby, has also prayed for the removal of the anti-dumping duty charged on the graphite electrode imported from China, since, according to their submissions, the CESTAT has incorrectly assessed the anti-dumping duty without proper appreciation of the law. 8. In the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions it impugns here. Therefore, its failure to do so, now results in this court s exercise of discretion not to entertain the challenge on substantive basis. 10. Furthermore, even otherwise, to assess whether a rule is ultra vires the parent act, it is necessary to read the sub- ordinate legislation within the larger meaning of the parent statute. This was highlighted in Commissioner of Central Excise Customs v. Venus Castings (P) Ltd. AIR 2000 SC 1568 , as follows: In holding whether a relevant rule to be ultra vires it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto. If the entire enactment is read as a whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment. 11. Again, in State of Tamil Nadu and Anr. v. P. Krishnamurthy and Ors. AIR 2006 SC 1622 the court citing a catena of related decisions enunciated the reasons for challenge to sub-ordinate legislation and held as follows: 12. There is a presumption in favour of constitutionality or validity of a sub-ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y examined and apprised the correctness of the method, employed by the Designate Authority of determining the normal value of electrodes within China by comparing individual work undertaken by an exporter vis-a-vis the export price imposed, as follows: 22. The learned Tribunal, on due consideration, came to the conclusion that the report of the Designated Authority neither suffers from any excessive imposition of confidentiality nor from the alleged non-consideration of any of the grounds urged on behalf of the appellant. The tribunal further held that the Designated Authority had followed an acceptable method of determining the normal value of electrodes within China by comparing individual work undertaken by an exporter vis-a-vis the export price imposed and that there was no infirmity in the matter of such determination. 23. Specifically, the final findings of the Designated Authority disclose that to determine the margin of dumping the said authority undertook an exercise to find out the normal value of graphite electrodes in the Republic of China and then proceeded to compare the same with the export price of the product. The Designated Authority on conclusion of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he procedure to be followed by the specific authorities has only been reaffirmed to subscribe to the true purpose of the Customs Tariff Act (the parent statute of anti- dumping law). 15. Thus, the Anti-Dumping Rules cannot be impugned as contrary to the larger purpose and spirit of anti-dumping law; a determining requirement in deciding the legitimacy of sub-ordinate legislation, as cited in the case law above. Therefore, it logically follows, that the Petitioner s submission that the determination of normal value as provided in para 7 of Annexure-1 read with Rule 10 of the Anti-Dumping Rules is ultra vires section 9A of the Custom Tariff Act 1975 is invalid. 16. In light of the decision of the Supreme Court in its judgment dated 17.04.2017, wherein the Supreme Court confirmed the upholding of the final findings of the Designated Authority by the CESTAT; including the procedure used to determine the normal value, and the rate of antidumping duty; it is not for this Court to now re-examine any repugnancy in the Anti Dumping Rules in light of the Customs Tariff Act, since there is no vagueness about whether Rule 10 of the Anti- Dumping Rules is ultra vires of the Customs Tari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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