TMI Blog2020 (2) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... be a domestic industry on account of various reasons especially with the fact that they have alleged to have themselves being importer of the goods in question. This has sought to be countered by the respondent no.3 by indicating that the respondent no.3 is not a regular importer so as to oust the same from the purview of being domestic industry and the counting etc. of the percentage for classifying to be a domestic industry being subject matter of investigation, initiation itself cannot be subject matter of challenge under Article 226 of the Constitution of India. The respondent nos.1 and 2 have also contended that the initiation is not subject matter of any scrutiny as the same is based upon the satisfaction of the authority and there is availability of appeal under Section 9-C of the Customs Tariff Act, 1975. This Court is of the view that the domestic industry for classifying to be a domestic industry has to fulfill the requirement of Rule 2(b) of the Rules and has also to satisfy requirement of Rule 5(3) for seeking initiation. It cannot be disputed that the two supporters who have been named as supporters by the respondent no.3 had subsequently withdrawn their support, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an omission warranting interference by the Court under Article 226 of the Constitution of India. When the notification impugned is not in any manner causing any prejudice to the petitioners, as the petitioners has not pleaded any special prejudice, the Court need not interfere therewith. It goes without saying that the detail observations made hereinabove are only for the purpose of examining the challenge to the notification and the same shall have no bearing upon investigation, if any. Petition dismissed - decided against petitioner. - R/SPECIAL CIVIL APPLICATION NO. 13485 of 2017 - - - Dated:- 20-2-2020 - HONOURABLE MR.JUSTICE S. R. BRAHMBHATT And HONOURABLE MR. JUSTICE A. G. URAIZEE MR. MIHIR JOSHI, SR. COUNSEL, WITH MR. P. R. GUPTA, ADVOCATE FOR THE PETITIONER KUNTAL A PARIKH, ADVOCATE FOR THE RESPONDENT MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL FOR THE RESPONDENT JUDGMENT ( PER : HONOURABLE MR. JUSTICE S. R. BRAHMBHATT ) 1. The petitioners by way of this petition have approached this Court invoking Articles 226 and 227 and Articles 14, 19(1) (g), 265 300-A of the Constitution of India with f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er referred to as the Rules ). It is alleged that the respondent no.3 while claiming itself to be domestic industry has excluded production of refined naphthalene used captively from the total domestic production to mislead respondent no.2 while applying pre- conditions of Rule 2(b) of the said Rules. The petitioner has further contended that a plain reading of Rule 2(b) of the rules would go to show that the term total domestic production of that article cannot be read to mean that production of that article for captive consumption is not domestic production in India. The export sales of subject goods are added to determine total domestic production of that article while testing pre-conditions of Rule 2(b). It is further contended that the respondent no.3 before respondent no.2 is not eligible domestic industry in terms of Rule 2(b) if correct figures are taken, as they do not account for a major proportion of total production in India. 2.3 The petitioners have further contended that the producers who are opposing the investigation are producing more than the respondent no.3 and therefore, the respondent no.3 cannot be said to be a producer of a major proportion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.2 reiterating its submission that the present investigation was not justified and ought to be terminated as early as possible. That despite such repeated letters, respondent no.2 continued with the proceedings and conducted an oral hearing on 10th April 2017. The petitioners vide letter dated 13th April 2017 filed its written submissions with respect to oral hearing conducted by respondent no.2. By the said letter the petitioners reiterated its submissions made through its letters dated 21st November 2016, 26th December 2016 and 27th February 2017. It was contended that the approach adopted by the respondent no.2 to proceed with the investigation was contrary to the Act and the Rules. 2.7 The petitioners further contended that after the oral hearing and proceedings were over on 8th May 2017 support letters from Supreme Industries and Aparna Carbon under a premise that by oversight the same were not filed came to be filed. M/s. Supreme Industries, who is mentioned as supporter of the anti-dumping investigation in the application, filed an affidavit dated 15th May 2017 before respondent no.2 stating that they are opposing the investigation. Vide their letter dated 13th Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent no.2 initiates an investigation only if the respondent no.3 accounts for a major proportion of the total domestic production. Learned counsel for the petitioners submitted that the respondent no.2 had been misled by the respondent no.3 by taking into account only the total domestic production provided by the respondent no.3 for calculating the standing of the respondent no.3 for filing the application. The respondent no.2 failed to take into account the production of some of the major producers of the product under consideration while examining the eligibility of the respondent no.3 to file the application in terms of Rule 5(3) of the Anti-dumping Rules, 1995 despite the fact that the names of such other producers were indeed available with him. It is submitted that the respondent no.2 failed to ascertain the total domestic production in the country before reaching to the conclusion regarding standing of the respondent no.3. The respondent no.2 further failed to examine the fact that the respondent no.3 had willfully not disclosed the production details of the other major producers of the project under consideration in their application. 5. It is further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely examined the tests of eligibility, as the countries notified for investigations are different. As the rules do not permit investigation against different countries for different forms of the very same product, the entire initiation is flawed. It is submitted that if the subject countries for the two different forms of the very same product under consideration are allowed to be different, then the entire exercise will also become unworkable. It is for this reason also that respondent no.2 never considers two different sets of countries for the same product under consideration. It is further submitted that the period of injury considered by the respondent no.3 for the purpose of injury assessment of Crude Naphthalene is 57 months while the period of injury considered by the domestic producer for the purpose of injury assessment of Refined Naphthalene is in any case cannot be more than 21 months as the respondent no.3 commenced the produced only in the year 2014-15. It is submitted that the respondent no.2 has grossly erred in taking the injury investigation period of five years in violation of its own Trade Notice 2/2004 dated 12th May 2004 and the consistent practice of respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case. 11. Learned counsel for the petitioners submitted that the factory of the petitioners is located in the State of Gujarat and the goods are also regularly imported by the petitioners within the State of Gujarat. The office of the petitioners is also located within the State of Gujarat. Thus, as aforesaid, all the consequences of the issue involved in the present petition shall fall on the petitioners and respondents within the State of Gujarat and therefore, the petitioners are constrained to approach this Court for appropriate orders, writs and directions inasmuch as the cause of action for filing the present petition by the petitioners has arisen within the territorial jurisdiction of this Court. 12. Learned counsel for the petitioners in support of his contentions, relied on the following decisions. (1) Kusum Ingots Alloys Ltd., Vs. Union of India, reported in 2004 (168) E.L.T. 3 (S.C.) (2) J. K. Industries Ltd., Vs. Union of India, reported in 2005 (186) E.L.T. 3 (Raj.) 13. In reply to the submissions made by the learned counsel for the petitioners, Shri Devang Vyas, learned Assistant Solicitor General for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd.). (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer : Nivedita Sharma). (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer : Nivedita Sharma). That in view of the afore referred settled principle of law, the present petition deserves to be dismissed on the ground of alternative remedy along as the petitioner is having effective, efficacious alternative remedy to prefer an appeal u/S. 9C of the Customs Tariff Act, 1975. E. It was submitted that the Initiation Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticipated in the investigation by filing the questionnaire response in capacity of an importer/user, making submissions and attended hearing. I submit that having participated in the proceedings by raising objections, it was incumbent on the petitioner to have waited for the outcome. It is further submitted that the subject petition is filed after almost 13 months of the issuance of Initiation Notification at the fag-end of investigation. Such a delay has not even been explained in the subject petition. I submit, at the cost of repetition, that the issuance of disclosure statement would have no bearing on the rights of the petitioners as the same is nothing but presentation of essential facts as per the relevant Anti-Dumping Rules and not a final determinations. Accordingly, the subject petition does not deserve to be entertained on account of unexplained delay, latches and acquiescence. J. Without prejudice to the above, it is submitted that the petitioners are not entitled to any relief since they approached this Hon'ble Court with unclean hands and suppressed material facts. It was further submitted that the petitioner no.1 has participated in the investigation on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having standing more than 50% individually and above 50% with the supporters. Thus, the applicant had a major proportion and satisfied the standing criteria in terms of Rule 5, even in the absence of any support to the application. It is also relevant to note that the product under consideration is one, i.e. Naphthalene in both its forms . Thus the standing is required to be seen with reference to the product under consideration only not in respect of both its forms or product types separately. L. It was further submitted that the standing of the application is required to be determined under Rule 5 prior to initiation. Once the Designated Authority has validly determined standing and initiated the investigations, the petition recedes in the background and Rule 6 comes in play. Under Rule 6 and thereafter from Rule 7 to Rule 17, the Designated Authority is not required to merely re-determine the scope of the domestic industry at the next stage of the investigations if necessitated. The petitioner is therefore required to establish before the Designated Authority or this Court relevance and importance of subsequent opposition to the application by a party who had validly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following decisions. (1) Union of India and others Vs. Adani Exports Ltd., and another, reported in (2002) 1 Supreme Court Cases 567. (2) State of Gujarat Fertilizers Chem. Ltd., Vs. Addl. Secy. Designated Authority, reported in 2012 (286) E.L.T. 348 (Cal.) (3) Surefaces Plus Vs. Union of India, reported in 2004 (173) E.L.T. 127 (Guj.). (4) Indian Express Newspapers (Bombay) Ltd., Vs. Union of India, reported in 2003 (157) E.L.T. 138 (Del.). (5) Outokumpu Stainless Vs. Union of India, reported in 2013 (288) E.L.T. 67 (Mad.). It is submitted in the rejoinder that in paragraph 1 2 of the affidavit in reply, it is submitted that the deponent is filing the reply for and on behalf of the Union of India i.e. respondent no.1; however, the deponent is an officer of the respondent no.2 and would therefore, otherwise not be competent to file a reply on behalf of the respondent no.1. The petitioners without prejudice to the aforesaid objection, deny the averment made in paragraph 4 (A) of the said affidavit in reply as it is vague, general and without any substantiation. It is denied that the averment that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction. The petitioners in their affidavit-in-rejoinder submitted that the interpretation of the respondent that such issues are in consideration and will be decided in due course on issuance of disclosure statement and final finding is contrary to the scheme of the Act and the rules made thereunder. The say of the respondent authority that such determination is pending and would be decided while issuing the disclosure statement and final finding is also on the face of it illegal and untenable. It is further submitted in the rejoinder that there has been no delay on the part of the petitioners and the said submission has been raised clearly for creating a prejudice against the petitioners as on one hand, the respondent have alleged that the petition is delayed whereas on the other hand, stated that the petition is pre- mature. On receiving the initiation notification, the petitioners communicated their response and also raised the jurisdictional issues required to be decided by the respondent authority. Despite such important issues raised, the respondent authority has willfully failed to and neglected to decide such issues which has constrained the petitioners to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritorial jurisdiction to try and entertain the present petition as no cause of action has arisen within the territorial jurisdiction of this Court. It is submitted that the initiation Notification dated 1st June 2006 was issued by the respondent no.2. The initiation Notification does not create any right in favour of the petitioner or cause any prejudice that gives rise to cause of action within the State of Gujarat. It is submitted that an anticipatory event cannot give cause of action to the petitioners. It is submitted that the present petition is premature and is filed with oblique motive of stalling a statutory investigation under the said Rules. The initiation of investigation does not accord any right or benefit to the respondent no.3. It is submitted that the subject petition suffers from the vice of delay, latches and acquiescence. It is submitted that pursuant to an application dated 17th December 2015, the initiation notification was issued on 1st June 2016. Therefore, it is apparent that the respondent no.2 has considered all aspects and applied its mind before initiating the investigation. The petitioner no.1 participated in the investigation by filing respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the support letters were filed by the respondent in support of its application dated 17th December 2015 prior to initiation and such letters were un-controverted as on 1st June 2016. It is submitted that the standing of the application for initiation is required to be determined under Rule 5 prior to initiation. The respondent no.3 vide affidavit dated 19th June 2017 has placed on record the facts regarding issuance of support letters of the M/s. Supreme Industries, through its Consultant's letter dated 21st June 2017 and vide such letter, the Consultants have also tendered post hearing submissions before the respondent no.2. It is submitted that the present petition raises several highly disputed questions of fact, pertaining to support to the investigation for which the respondent no.3 has filed its affidavit. It is denied that the initiation of the present investigation is without jurisdiction and contrary to law. It is further submitted that till date the petitioner no.1 has failed to establish before the Designated Authority that it is indeed a producer of Naphthalene. It is denied that without examining the fact of imports made by the respondent no.3, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which can be challenged and questioned before this Court. The initiation of such proceeding would be clearly without jurisdiction. It is denied that the present petition is premature and is filed with the motive of stalling a statutory investigation. It is submitted that there has been no delay on the part of the petitioners. It is further submitted that all throughout the proceeding, the petitioners have raised their objections which have still not been decided by the respondent authority. As is evident from the affidavit in reply filed by the respondent authority, the respondent authority has acknowledged the receipt of such objections, but have suggested that such issues are yet to be decided. In rejoinder to the affidavit-in-reply of respondent no.3, it is submitted by the petitioners that the initiation of the proceeding without satisfying the basic mandate is clearly in violation of the law and the petitioners being an interested party would certainly stand prejudicially effected if such proceeding are allowed to be proceeded further without determination as to its jurisdiction. As per the language adopted in Rule 5 of the said Rules, the respondent authority shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) The petitioners have produced at Annexure-D a letter from M/s. Supreme Petro Synth Specialities dated 03.06.2016 addressed to the Designated Authority, relevant extract whereof are required to be set out as under; To Mr. A.K.BHALLA Additional Secretary and Designated Authority, Director General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry, Department of Commerce, 4th Floor, Jeevan Tara Building, 5 Parliament Street, New Delhi 110001. Dear Sir, We are Bhilai, Chattisgarh based SSI unit producing refined naphthalene. Our raw material is Hot pressed naphthalene. Heavy benzol, Drain Naphthalene oil (D.N.O.) which are the by-product of the Bhilai steel plant (SAIL). We do not support anti dumping duty being imposed on Naphthalene. Now we are withdrawing our name from the Notification. Once again we state that we are not in favor of imposing antidumping duty on naphthalene. Thanking you, Yours faithfully. (e) The petitioners have made averments and produced a communication by Indian Petro Coal Products, at Page-77, dated 10.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kind attention of the authority is invited to Para iii of Annexure II to the Anti-dumping Rules which reads as under: (iii) In case where imports of a product from more than one country are being simultaneously subjected to anti-dumping investigation, the designated authority will cumulatively assess the effect of such imports, only when it determines that (a) the margin of dumping established in relation to the imports from each country is more than two per cent expressed as percentage of export price and the volume of the imports from each country is three per cent of the import of like article or where the export of individual countries less than three per cent, the imports collectively accounts for more than seven per cent of the import of like article and (b) cumulative assessment of the effect of imports is appropriate in light of the conditions of competition between the imported article and the like domestic articles. 10. Further, if the subject countries for the two different forms of the very same Product under Consideration are allowed to be different, then the test of de minimis will also become unworkable. It is for this reason also that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, it is clear that the production of some of the major producers of Refined Naphthalene has not been taken into consideration while examining the eligibility of the applicant to file the application in terms of Rule 5(3) of the Anti- dumping Rules, 1995. In this context, it is submitted that the applicant has willfully not disclosed the production details of the other major producers of Refined Naphthalene in their application. It is clear that the only purpose of withholding such vital information from the Authority is to mislead the Authority with regard to the standing in terms of Rule 5(3) of the Anti-dumping Rules. 16. We give below the names of the other major producers of Refined Naphthalene who are opposing the application along with their production (MT) details as follows: SI. No. Name of the Producers 2013-14 (MT) 2014-15 (MT) POI (MT) 1 Bodal Chemicals Ltd *** *** *** 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication (7:9) 11066 81% 11 Total Production of producers supporting or (1 + 10) opposing the application 13732 100% Since, the production of the Indian producers opposing the application (81%) is significantly more than the producers supporting the application (19%) the applicant fails to establish the 'standing'. The applicant also fails the 25% test being only 17% of the total actual Indian production. *These are those producers whose support has been taken by misguiding them and who had withdrawn their support by filing letter of opposition to the Authority immediately after getting the information public that the Authority had initiated the anti-dumping investigation. 19. The above table establishes beyond any doubt that: a. Applicant fails the 50% test: It can be further seen that the applicant accounts for 2,666 MT (19%) of the actual total Indian production (13,732 MT) of those producers w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.27% Russia 253.566 *19152 1.32% *Production figure for POI has been used since production details of the year 2015-16 has not been provided by the applicant 7. It is clearly evident from the information provided in the above table that the applicant is an regular and habitual importer and has imported significant quantities of the subject goods i.e., 1,838.5 MT (sum of 1,585.02 and 253.56) during the year 2015-16 from the subject countries which accounts for significant share i.e., 9.47% of the production of the applicant. 8. The interested parties humbly submit that in the case of Vitrified Tiles, the Authority has considered M/s Kajaria Ceramics as ineligible domestic producer on account of the fact that significant imports has been made by them. Copy of the initiation notification is enclosed as Annexure 5. In a recent interview given to CNBC-TV 18, Mr. Ashok Kajaria (CMD) admitted that they themselves make 98% of their products and rest 2% constitutes the imports. Copy of web page detailing the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the above table following preposition emerges: a) Production increased consistently from 11,358 MT in the year 2012-13 to 19,152 MT in the POI. b) Domestic sales increased consistently from 6,771 MT in the year 2012-13 to 12,593 MT in the POI. c) Inventories declined from 330 (Index) in the year 2012-13 to 241 (Index) in the POI. d) Cost per unit declined from 133 (Index) in the year 2012-13 to 119 (Index) in the POI. e) Selling price per unit increased from 112 (Index) in the year 2012-13 to 114 (Index) in the POI. f) Profit per unit declined from negative 1579 (Index) in the year 2012-13 to negative 332 (Index) in the POI. g) Cash losses of negative 102 (index) turned to significant cash profit of 49 (Index) in the POI. h) PBIT of negative 129 (Index) turned significantly positive of 64 (Index) in the POI. i) ROCE of negative 162 (Index) turned significantly positive of 55 (Index) in the POI. 19. Injury information is flawed as it includes self imports We humbly submits that it is clearly evidenced form the information provided on page no. 37 of the application t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectorate of Anti Dumping Allied Duties, Ministry of Commerce Industry, 4th Floor, Jeevan Tara Building, Parliament Street, New Delhi. 110 011. Dear Sir, Subject: Investigation against imports of Naphthalene from China PR, European Union, Russia, Iran and Japan (for Crude) and from China PR, European Union and Taiwan (for Refined) Request for termination. We would like to bring to your kind notice that we are one of the major producers of Refined Napthalene in India. We understand that the Government has initiated Anti Dumping Investigation against imports of Naphthalene from China PR, European Union, Russia, Iran and Japan (for Crude) and from China PR, European Union and Taiwan (for Refined), vide Notification No.14/35/2015- DGAD, dated 01.06.2016. In the above context, we invite kind attention of the Authority to the fact the petitioner has wrongly claimed in their petition that besides themselves, there are only two other producers of Refined Naphthalene in India i.e. M/s Supreme Industries and M/s Jaya Household products. We further understand that the claim of the petitioner and the decision of the authority with regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Page 104 the Written Submissions on Public Hearing Dated 10.02.2017, relevant extracts whereof are set out as under: Exclusion of the Domestic Producers with captive production is bad I law and inconsistent with Articles 3 and 4 of ADA 25. It was mentioned by the representative of the Domestic Industry that the production meant for captive consumption cannot be included for the purpose of deciding the standing of the applicant to file the application. In this context, we would like to draw the kind attention of the Hon'be Authority to the provisions of Rule 5 which are excerpted as under: 5(3) The designated authority shall not initiate an investigation pursuant to an application made under sub-rule (1) unless - (a) It determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry. Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five percent of the total pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r headings but are classified under two entirely different Chapters of the Customs classification. These two are, therefore, clearly two different products not amenable to anti- dumping investigation together. (iv) Subject countries are different for C and R which can happen only if the two are considered to be separate products. (v) Crude Naphthalene and Refined Naphthalene are produced by different industries, a fact which has been admitted by the application industry in the application as well as in the written submissions. (vi) Plant Machinery are different for Crude Naphthalene and Refined Naphthalene so are the properties, technical specifications and end-uses. Para 7 and para 8 of applicant's written submissions admit that the production and processing process of Crude Naphthalene and Refined Naphthalene are different. (vii) The entire concept of subject goods is based in the context of subject countries. It is consistent stand of the Designated Authority that the subject goods or the PUC is not the product as such but only those products which are imported from the countries under investigation. Therefore, it follows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al position so as to enable the Respondent no.2 to gather essential facts for the purpose to ultimately deciding whether or not impose definitive measures. ....... . C) I submit that the subject Petition suffers from the vice of delay, latches and acquiescence. It is submitted that the Initiation Notification was issued on 1.6.2016 pursuant to an application dated 17.12.2015. It is thus apparent that the respondent no.2 has considered all aspects and applied its mind before initiating the investigation. The petitioner no.1 has participated in the investigation by filing responses/submissions and attended hearing. I submit that having participated in the proceedings by raising objections, it was incumbent on the petitioner to have waited for the outcome. It is further submitted that the subject petition is filed after 1 year 1 months and 15 days of the issuance of Initiation Notification at the fag- end of investigation. Such delay in inexcusable and has not been explained in the subject petition. I submit, at the cost of repetition, that the issuance of Disclosure Statement would have no bearing on the rights of the petitioners and the same is nothing but presentation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tariff Act, 1975. The petitioner if at all aggrieved with impugned notification, can prefer an appeal against the notification of Central Government in Anti-Dumping matters lies before CESTAT the appellant tribunal as provided under the Act. Therefore, the present petition is not maintainable and the same deserves to be dismissed on the ground of alternative remedy alone. C. The Hon'ble Supreme Court of India in case of Nivedita Sharma Vs. Celluar Operators Association of India and others, (2011) 14 SCC 337, has been pleased to noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Hon'ble Court further noticed the previous decision of the Hon'ble Supreme Courts wherein the Hon'ble Court adverted to the rule of self-restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person as follows : 13. In Tataghur Paper Mills Co. Ltd., Vs. State of Orissa this Court observed : (SCC pp. 440-41, Para 11) 11. It is now well recognised that where a right or liability is created by a statute wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute under challenge. 16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal Vs. Supt. of Taxes and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. D. The Hon'ble Apex Court recently in case of Union of India Versus Shri Kant Sharma, reported in 2015 (0) AIJEL-SC 56294 (2015 (6) SCC 773) has been pleased to consider the said judgment of Nivedita Sharma along with the other such judgments and has been pleased to observe as under :- 34. The aforesaid decisions rendered by this Court can be summarised as follows : (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter from Rule 7 to Rule 17, the Designated Authority is not required to re-determine the standing of the application. The Designated Authority is required to merely re-determine the standing of the application. The Designated Authority is required to merely re-determine the scope of the domestic industry at the next stage of the investigations if necessitated. The petitioner is therefore required to establish before the Designated Authority or this Court relevance and importance of subsequent opposition to the application by a party who had validly and admittedly supported the petition prior to initiation. N. Without prejudice to the preliminary objections, I submit that the present Petition raises several highly disputed questions of fact, inter alia, pertaining to support to the investigation. In respect of the issues so raised before the Respondent No.2, the Domestic Industry has filed its affidavit stating that the letters of support were in fact duly received by it. The Respondent No.2 is seized of the matter and would have to decide whether or not the explanation given by the Domestic Industry merits acceptance. In such scenario, there is no justificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); c. normal value, in relation to an article, means- [i] the comparable price, in the ordinary course of trade, for the like article when [destined for consumption] in the exporting country or territory as determined in accordance with the rules made under sub- section (6); or [ii] when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either- (a) comparable representative 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) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be; or [ii] the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India. Explanation. - For the purpose of this sub- section, the expression hindered per cent export-oriented undertaking shall have the meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944). (3) if the Central Government, in respect of the dumped article under inquiry, is of the opinion that- (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exported practices dumping and that such dumping would causer injury; and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti- dumpi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of records concerning normal value and export price maintained, and information provided, by such exporter or producer : Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.] (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. 2. Definitions.- In these rules, unless the context otherwise requires- (b) domestic industry means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a maj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf that there is sufficient evidence regarding - (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. Rule 14:- Termination of investigation. - The designated authority shall, by issue of a public notice, terminate an investigation immediately if - (a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated; (b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify the continuation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. The respondent no.3 has submitted that the product under consideration is Naphthalene in both its form separating the subject countries on type-wise imports of product would not vitiate the proceedings; and it was contended that a mere wrong description of the source of power, a mere wrong label, cannot invalidate the action of the authority, if it is otherwise within the power of the authority. The respondents have relied upon the decision of the Supreme Court in case of Titagarh Paper Mills Ltd. Vs. Orissa SEB, reported in (1975) 2 SCC 46. 24. The respondent no.2 Designated Authority, has filed detail Affidavit, extracts whereof is reproduced hereinabove, interalia contending that the petition filed by the petitioners under Article 226 is not maintainable. It was further argued on behalf of the respondent no.2 that the petitioners have effective efficacious alternative remedy under Section 9-C of the Customs Tariff Act, 1975. The appeal would lie to the CESTAT. The reliance is placed upon the decision of Supreme Court in case of Nivedita Sharma Vs. Cellular Operators Association of India and Ors., reported in (2011) 14 SCC 337, and submit that when statutory fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing domestic industry and the counting etc. of the percentage for classifying to be a domestic industry being subject matter of investigation, initiation itself cannot be subject matter of challenge under Article 226 of the Constitution of India. The respondent nos.1 and 2 have also contended that the initiation is not subject matter of any scrutiny as the same is based upon the satisfaction of the authority and there is availability of appeal under Section 9-C of the Customs Tariff Act, 1975. 28. The counsel for the petitioners has indicated elaborately that so called supporter of the respondent no.3 have said to have withdrawn their support and therefore on that count also the initiation itself goes into the root of the matter. 29. This Court is of the view that the domestic industry for classifying to be a domestic industry has to fulfill the requirement of Rule 2(b) of the Rules and has also to satisfy requirement of Rule 5(3) for seeking initiation. It cannot be disputed that the two supporters who have been named as supporters by the respondent no.3 had subsequently withdrawn their support, but a fine question which is arising for consideration is whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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