TMI Blog2005 (4) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... rers of synthetic fibre in India, including NTCF, submitted a written application before the Designated Authority appointed by the Central Government under Rule 3 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter the Anti Dumping Rules/Rules of 1995) on behalf of the domestic manufacturers that the exporters from China are dumping the NTCF in Indian Market and it is causing injury to domestic industry of NTCF and that there is a causal connection between such dumped articles and the injury to domestic industry. 3.In the said petition, it was also alleged that in addition to the material injury already inflicted on the domestic industry, imports from said countries are posing threat of material injury to the domestic industry in future also. 4.On receipt of this petition, the respondent No. 1, the Designated Authority, issued an initiation Notification dated 29-10-2003 for initiating investigation into the imports of NTCF originating or exported from China and in terms of Rules of 1995 framed under Customs Tariff Act, 1975 (hereinafter called 'the Act of 1975'). 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of objections against initiation of investigation by the ATMA and the exporters from China, the Designated Authority was informed by letter dated 7-4-2004 by the petitioners that appeal filed by the domestic industry against the mid term review findings dated 20th March, 2003 has been withdrawn and therefore, present proceedings are not maintainable as the domestic industry failed to establish causal connection even prima facie. 10.Thereafter, by Notification dated 30th June, 2004 the Designated Authority published its preliminary findings under Rule 12 of the Rules of 1995 and recommended the imposition of provisional Anti Dumping Duty on import of NTCF originating and exported from China. On the basis of the preliminary finding notified by the Designated Authority, the provisional Anti Dumping Duty was imposed by the Central Government vide Notification dated 26-7-2004. Before that on 5-7-2004, the copy of preliminary findings were supplied to the interested parties. 11.The Notification of preliminary findings inter alia informed about further procedure as under : "(a) The Authority invites comments on these findings from all interested parties and the same would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed as new Designated Authority under Rule 3 of the Rules of 1995 somewhere in November, 2004. 16.We may notice here that initiation Notification was issued by Mr. L.V. Saptharishi as Designated Authority on 20-10-2003. 17.Vide letter dated 6-1-2005, the request was made to Mr. Fernandez on behalf of M/s. NNC and NJIE that "hearing in this case was granted by your predecessor who has since relinquished charge without passing any order in this case. We would earnestly urge you to appreciate that the principle of administrative proceedings would require that orders are passed by the authority who had actually heard the submission of various interested parties. In view of the above position, we would request you to kindly grant us a fresh hearing before any finalisation is taken in the matter." 18.The Designated Authority responded letter dated 6-1-2005 by making final disclosure under Rule 16, copy of which was annexed with letter dated 12-1-2005. 19.The final disclosure statement consisted of 4 Annexures relating to (i) general disclosure, (ii) Assessment of dumping-methodology and parameters (confidential for co-operating exporters only); (iii) Assessment of injury an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be in a position to make any meaningful attempt to file comments to the disclosure statement. We would also request the Designated Authority to provide us the rejoinder statement filed by the all the parties to the proceedings. Please note that the same have been provided in other cases. If the same are not provided, we would not be in a position to appreciate the submissions in the proper perspective especially when it appears from the disclosure statement that several new submissions of the domestic industry have been brought on record which were not available in the public file or in the written submissions pursuant to the public hearing. Serious prejudice would be caused to the interest of the cooperating exporters and importers if such prayer is not allowed. Such an opportunity would enable us to effectively participate in the present proceedings as mandated by law of natural justice." 25.Its request for fresh hearing in terms of its letter dated 6-1-2005 was also reiterated. 26.The petitioner has also placed on record his letter dated 10th August, 2004 complaining that till date the complete public file in accordance with the procedure prescribed in the Anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an attempt to scuttle the proceedings initiated in respect of said facts but due to faulty procedure and erroneous approach adopted by the Designated Authority has vitiated the proceedings in its roots and if in spite of this, the Designated Authority is allowed to reach final findings and recommend the rate of Anti Dumping Duty to the Central Government, it shall result in irreparable injury which is likely to be caused to the interest of the petitioner and that the petition does not suffer from laches. It was stated in response to objection as to lack of territorial jurisdiction of this Court that the petitioner is an importer as well as a user industry of article under investigation having its user in the State and facilities of using the article in question in manufacture of tyres set up in Kankroli, Rajasthan. The petitioner is a licensee to maintain a bonded warehouse situated within the precincts of his factory at Kankroli in the State of Rajasthan under the provisions of Section 58 of the Customs Act, 1962 where the imported goods are to be removed on reaching Indian Territory without payment of duty. Under Section 58 of the Customs Act, within week of the imported articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable when the goods are removed from the bonded warehouse situated at Kankroli under the order issued by the competent authority which is situated at Udaipur. Therefore, the assessment of Customs Duty shall take place by the authority situate in Rajasthan at the time when imported goods are removed from bonded warehouse, where goods have been brought without payment of duty. Obviously, liability to pay Customs Duty in such case will arise only at Kankroli when goods are removed from the bonded warehouse. The liability to pay Anti Dumping Duty under the Customs Tariff Act, 1975 read with Act of 1962 shall arise at Kankroli in Rajasthan when the non-duty paid goods will be removed from bonded warehouse. The proceedings which are subject matter of petition are part of the procedure required to be followed for imposition of Anti Dumping Duty under Section 9A of the Act of 1975. There is a direct nexus between the proceedings under challenge and the liability of the petitioner to pay the Anti Dumping Duty chargeable under Section 9A of the Act of 1975 in Rajasthan to which the petitioner is likely to be subjected to. So far as the petitioner is concerned, there is a direct territoria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff valuation, if any applicable to any imported goods shall be the rate endorsed in the case of goods entered for home consumption under Section 46 on the date when a bill of entry is presented under that Section. It further says under clause (b) of sub-section (1) that where the goods are removed to the bonded warehouse from the port of import without payment of duty and the goods are stored in the bonded warehouse, the quantification of Duty can take place only at rate of duty and valuation of goods in force on the date when the bill of entry is presented before competent authority before goods are cleared from warehouse under Section 68. 35.Until Section 15(1)(b) was amended vide Finance Act, 2003, the rate of duty and valuation of tariff was to be done as per the date on which goods stored in bonded warehouse without payment of Duty, when the goods were removed. Since amendment, the rate of duty and tariff evaluation of such goods removed to bonded warehouse without payment of duty is to be on the date the bill of entry is presented under Section 68 before competent officer removing therefrom the goods for home consumption under authorisation from competent officer. 36.The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xus between lis and place where liability to duty in question is to arise, which is within the State of Rajasthan for the petitioner. 41.The scheme of Investigation to be held under Custom Tariff Act, 1975 read with Anti Dumping Rules of 1995 reveals that before anti dumping duties levy can be imposed findings are to be reached by the Designated Authority about three essential facts necessary to establish the fact of dumping. Such are the findings about Export price of subject commodity, normal price of the subject commodity and margin of dumping. The essential requirement that is to be investigated and found further is causal link between dumping of subject commodity and injury to domestic industry. Thus export from foreign country into India, import, and injury to domestic industry vis-à-vis dumping margin found on the basis of export price and normal price of subject commodity from exporting countries or originating country are essentials which has to be investigated before Designated Authority can reach its conclusions about existence of dumping and extent of injury taking place through exportation to or importation in India of any commodity and its injury to domestic industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Duty and other duties of custom if any dispute arises as to assessment and levy thereof in respect of the petitioner, the territorial jurisdiction shall vest in this Court. 47.In this connection, we may notice a very recent decision of the Supreme Court in Kusum Ingots and Alloys v. Union of India and Other [2004 (168) E.L.T. 3 (S.C.) = (2004) 6 SCC 254]. 48.It was a case in which petitioner has challenged the vires of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the Delhi High Court. The petitioner was a company having its registered office at Mumbai. Loan was obtained from Bhopal Branch, State Bank of India. Notice for repayment was issued by the Bank from Bhopal purporting to be in terms of the said Act. 49.The writ petition was not entertained by the Delhi High Court on the ground that the Delhi High Court did not have the territorial jurisdiction because no part of cause of action arose within territorial jurisdiction of Delhi High Court. 50.In appeal before the Supreme Court, it was contended that since petitioner was challenging an act of parliament, which was enacted at Delhi at the seat of parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government. Thus, the procedure of investigation to find about existence of necessary facts is an exercise in aid of legislative function of the State. On the implementation of such levy, the cause of action will arise where as a result of implementation civil or evil consequences fall on the petitioner. 55.In the present case, the civil or evil consequences, on implementation of Anti Dumping Duty, if levied as a result of alleged illegal and invalid proceedings, will fall on the petitioner at Kankroli in State of Rajasthan as discussed above. Hence if the petitioner is to challenge the validity of levy, the High Court of Rajasthan will have territorial jurisdiction to entertain such challenge and decide upon it. 56.On the anvil of the aforesaid principle, the Notification dated 26-7-2004 issued by Central Government imposing provisional Anti Dumping Duty on import of NTCF from China was a delegated legislation. In implementation of such imposition the petitioner as an importer of NTCF was subjected to Anti Dumping Duty on its import. That duty in terms of Section 15 read with Section 68 of the Customs Act, 1962 shall become payable in Rajasthan when removing goods, on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion to which we have reached is within the parameter of test laid by the Apex Court for determining the question of territorial jurisdiction as per the decision relied on by the respondents. Objection to Locus Standi of the Petitioner 62.Mr. Mohan Parasaran, learned Additional Solicitor and Mr. Krishna Venugopal, learned counsel for the ASIF and other intervening parties have further submitted that petitioner, a registered Company, does not have locus to maintain this petition. It has been urged that firstly, the petitioner does not have an individual interest in matter hence, the cause cannot be pursued individually. Secondly, petitioner himself has not participated but his interest has been represented before the Designated Authority through a representative body ATMA. If at all only ATMA could pursue the remedy in respect of any grievance relating to investigation conducted by the Designated Authority. 63.Learned counsel for the petitioner has asserted its locus to maintain the petition as an importer of NTCF and as an industrial user of the product in question. He also pointed out that notwithstanding that its interest is represented through ATMA, but the petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 6 reads as under : "(5) The Designated Authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commodity sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality." 70.Sub-rule (5) mandates Designated Authority to give opportunity to industrial user and representative consumer organisation in cases subject goods are ordinarily sold at retail level to furnish information regarding dumping, injury where applicable, and causality. It makes a distinction between two classes of persons namely, industrial users and retail buyers. In the case of former, the opportunity is required directly to be offered to the industrial user, but in the latter case, opportunity to be given is confined to representation consumer organisation. The requirement is directly in mandatory form by using expression "shall also provide opportunity." It is not within the domain or discretion of the Designated Authority. 71.The petitioner is undisputably and undeniably an industrial user of the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponded by publishing information on the basis of which Designated Authority intends to reach final finding on the matters required to be determined by him. In which, we stated that substance of oral hearing has been noticed in information published. The petition has been filed on 24-1-2005 after serving a notice dated 17-1-2005 demanding certain information, time of 15 days to furnish comments and reiterating demand of fresh oral hearing as per request dated 6-1-2005. 78.Without commenting on merit of the contentions, it can be safely inferred that even if the challenge to initiate investigation under Rule 5 and publication of preliminary finding under Rule 12 and consequent imposition of Provisional Duty be suffering from delay, the challenge to continued proceedings on the basis of denial of fresh oral hearing by successor in office, when predecessor in office after giving oral hearing has demitted office without deciding the case, if such a lapse renders the whole proceedings void, cannot be said to be suffering from delay or latches so as to refuse to examine the merit of contention. 79.Hence, we are unable to sustain the objection to entertain hearing on merit on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the decisions relates to Anti Dumping Duty. Reliance was also placed on judgment of the Gujarat High Court in Appollo Tyres Ltd. v. Union of India, Civil Special Application No. 8747/2004, decided on 20th July, 2004. The decision of the Gujarat High Court has been rendered in relation to the very investigation which is subject matter of the present writ petition. The Gujarat High Court has declined to inquire into the matter at the stage before the final findings are recorded in the matter. 82.On the other hand, the petitioner has urged that the petition cannot be dismissed as pre mature for two reasons. Firstly, because the preliminary findings having already been reached and the rights of the petitioner already having been affected by levy and collection of provisional anti dumping duties, the petitioner can challenge preliminary findings and provisional levy of Anti Dumping Duty. The grounds of such challenge may include challenge to very initiation of investigation for the purposes of levying Anti Dumping Duty under Section 9A and violation of statutory provision in conducting investigation until reaching preliminary findings and consequent issue of Notification imposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t every step and finally, the Designated Authority's denial to afford opportunity of fresh oral hearing in spite of a demand having been made and his insistence on proceeding with the investigating without affording oral hearing which was given by his predecessor-in-office and to act on the oral hearing given by the predecessor in office vitiates the whole enquiry and cannot be proceeded with. Until the investigating is not complete, the claim to an appropriate writ directing the Designated Authority not to continue with already vitiated proceedings cannot be said to be pre mature. 84.The learned counsel for the respondents rejoined that, the investigation by the Designated Authority is governed by the procedure laid down under the Rules of 1995 and under the Rules, there is no requirement of an oral hearing as essential part of procedure. What is required is that all interested parties can have an opportunity to furnish information to the Designated Authority orally also for the purpose of assisting him to arrive at an objective findings as to the normal value, the export price, the injury to the domestic industry, margin of dumping and the causal connection between the activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1975 vide amending Act No. 52 of 1982. The Scheme for levy and imposition of Anti Dumping Duty is encompassed under Sections 9A to 9C. The imposition of safeguard duty under Section 8B was introduced vide Finance Act, 1997 w.e.f. 14-5-1997, with an object to safeguard interest of domestic industry against injury that domestic industry may suffer on account of increased quantities in imports. The special provisions relating to impost on territorial product, special duty on imports from Peoples Republic of China was levied by inserting Section 8C w.e.f. 11-5-2002 vide Finance Act, 2002. All these new duties have come to be incorporated in the Act of 1975 as a result of obligation arising under International Treaties and trade agreements at the international forums to which India was a party or signatory and each in its terms was diverse in nature and different from the normal or the ordinary customs duties to be imposed on importation or exportation of goods in India or from India. 90.We are concerned with the imposition of Anti Dumping Duty. A question may arise whether it is an independent levy under the Act of 1975 otherwise than the Customs duty as imposed under the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Duty on dumped products and refund of excess amount in cases where the final duty as determined under the Section is less than the Provisional Duty. Section 9B was also introduced to provide for exemption from levy of countervailing duties under Section 9 or of the Anti Dumping Duties under Section 9A in the case of articles imported from the country or territory notified under the Section. The exemptions were not to be made in respect of import of any article if the import of such article causes or threatens the material injury to any industry established in India or materially retard the establishment of any industry in India. It enables the Central Government to specify for the purpose of such provision only a country or territory which by reason of it being party to the GATT or by reason of an agreement between it and India for giving it a most favoured nation treatment or for any other reason provides for a similar exemption with respect to articles imported into such country or territory from India. 94.Closely analysed, three basic elements have to be pre-determined before the Central Government may exercise its authority to impose an Anti Dumping Duty. Firstly, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omestic industry, it may from time to time extend the period of such imposition for a further period of 5 years. The period during which the review came to be initiated, before the expiry of period of 5 years, to the date of its conclusion, the anti dumping shall continue to remain in force for not exceeding one year. The margin of dumping duty as referred to in sub-section (b) of Section 3 is to be considered and determined by the Central Government from time to time after such enquiry as it may consider necessary. Sub-Section (6) of Section 9A provides that the Central Government after such enquiry, as may consider necessary and may by Notification in the official gazette make Rules for the purpose of Section 9A and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified and for the manner in which the export price and the normal value of article subject of investigation and the margin of dumping in relation to such articles may be determined and for the assessment and collection of such anti-dumping duty. Sub-section (8) was inserted vide Finance Act, 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he GATT agreement and other International Treaties and agreements to which India is signatory member. Under the Constitution of India it is also an obligation of the State to discharge the obligation arising under international treaty. The determination of essential facts in accordance with the procedure laid down under the Rules is in aid of the legislative function of the Parliament and its delegate and is not purely of the administrative or judicial or quasi judicial character but is legislative or quasi legislative in character. 99.Viewed in that light, the investigation envisaged under the Rules framed for the purposes of imposing the Anti Dumping Duty cannot be viewed in the light of the normal administrative or quasi judicial inquiries undertaken by the administrative, judicial or quasi judicial authorities to determine a lis between the two opposite parties but is exercised for the purpose of accumulating certain basic informations about facts on the basis of which Central Government can exercise its taxing authority under statutory authorisation. Such information is to be collected from all interested parties during the investigation envisaged under Rule 5 in the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exercise of the power by the Central Government bearing in mind further considerations as per the guiding principles clearly laid in the Act and Rules before Anti Dumping Duty can be imposed by it. Finding of the aforesaid facts relating to the dumping margin dependent on the difference between normal price and the export price of the article in the exporting countries and the injury to the industry because of such import with the causal connection between the import and the injury alone can enable the Central Government to levy Anti Dumping Duty. 104.Not only to determine the anti dumping margin, but the Designated Authority has further to recommend rate of Anti Dumping Duty not exceeding the margin of dumping which if levied is likely to remove the injury to the domestic industry. The function of the Designated Authority does not end with the determination of the findings and imposition of Anti Dumping Duty by the Central Government but is a continuous process. It requires periodical reviewing of the status of dumping and necessity of continuance of the Anti Dumping Duty once imposed. 105.The procedure for initiation of the investigation and final findings is provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) requires copy of public notice to be sent by the Designated Authority to known exporters of article alleged to have been dumped, the Government of exporting countries concerned and other interested parties. 112.Sub-rule (3) requires that the Designated Authority furnish a copy of application made under Rule 5 to known exporters, concerned trade associations whose community of exports is large, the Government of exporting countries and also to supply such copy on demand to other interested party. 113.Significantly, sub-rule (4) (5) and (6) of Rule 6 deal with calling of information from different interests. Separate provision has been made for giving opportunity to furnish information to each of the interests identified earlier, with the stipulation that such information shall be transmitted to others subject to claim of confidentiality. These Rules also envisage oral submissions relating to information. Such opportunity to oral submission is conditional that oral submission shall be taken into consideration only if it followed with written submissions placing the oral submissions about information by the concerned party. 114.This Court in Rajasthan Textile Mills Associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y not exceeding the margin of dumping. Rule 19 directs that Anti Dumping Duty is to be levied on non-discriminatory basis. 119.Rule 20 declares in unequivocal terms that Anti Dumping Duty levied under Rule 13 or Rule 18 shall take effect from the date of publication in official gazette only. It does not take effect earlier than that whether Provisional Duty or final duty. 120.The rest of the Rules relate to periodical review and ancillary matters which are not relevant for the present purposes. 121.Before embarking on the further enquiry, it would be appropriate to notice the co-relation between the relief that can be sought in exercise of extraordinary jurisdiction of this Court and the nature of function and of the enquiry by the Designated Authority in relation to reliefs which are sought. We have noticed while considering the question about territorial jurisdiction that any relief against legislative action whether primary, delegated, or subordinate, the cause of action arises only when the provisions of such legislation or some of them are implemented and which gives rise to civil or evil consequences to the petitioner complainant. This was so stated in Kusum Ingots case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority exercises a legislative power by way of subordinate legislation pursuant to delegated authority of the legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority." 128.In State of Jammu Kashmir v. A.R. Zakki Ors. - (1992) (Suppl.) 1 SCC 548, the Court reiterated that, "a writ of mandamus cannot be issued to the Legislature to enact a particular legislation, same is true as regard the executive when he exercises the power to make Rules which are in the nature of sub-ordinate legislation." 129.Broadly speaking, while the writs of prohibition and certiorari have for their object to keep the inferior courts or Tribunals within their jurisdiction by restraining them exercising jurisdiction which does not vest in them and/or to correct errors apparent from the face of its record. Such writs could be issued not only to courts but to all authorities exercising judicial or quasi judicial functions. The mandamus is a command to protect any person, Corporation, inferior courts or Government, requiring him or them to do something particular, specified which belongs to his or their offices an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for which a petition in the nature of mandamus, prohibition or certiorari can be maintained until the legislative instrument comes into existence and in its implementation affects any person resulting in civil or evil consequences that may affect him adversely. Until then no cause of action arises and consequently no writ would lie to abstain the concerned legislative authority from completing the process by which the legislation can be brought into existence. 133.On the other hand, if the function is judicial, quasi judicial or administrative, the cause of action may arise in a given case, even by the very initiation of proceedings under any law or in exercise of public duty aimed at bringing on civil consequences for a person against whom such action is initiated. In such case the action or inaction itself becomes cause of action if it abundantly affects petitioner's interests. 134.This issue takes us to enquire when cause of action arises to initiate a lis. If such cause of action has arisen for the petitioner to litigate to safeguard his interests which have been affected or likely to be affected by the investigation or proceedings in question, the petition cannot be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to exist. Charge to tax really comes into existence on Notification issued by the Central Government as authorised under Section 9A of the Act of 1975. Thus, not only the provision in the principal legislation enacted by the Parliament is legislative but the Notification which ultimately brings the charge into effect, too is legislative in character and is in the nature of delegated legislation. 140.In this connection, we may notice the principle succinctly explained in M/s. Narinder Chand Hem Raj Ors. v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh Ors. - (1971) 2 SCC 747 : "The power to impose a tax is undoubtedly a legislative power. That power can be exercised by the Legislature directly or subject to certain conditions the Legislature may delegate that power to some other authority. But the exercise of that power, whether by the Legislature or by its delegate is an exercise of a legislative power. The fact, that the power was delegated to the executive does not convert that power into an executive or administrative power. No Court can issue a mandate to a Legislature to enact a particular law. Similarly, no Court can direct a subordinate legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes to the fore that mere passing of a legislation does not give rise to a cause of action but a cause of action arises only when the provisions of the Act or some of them are implemented which gives rise to civil or evil consequences to the petitioner. 147.Applying this test to the present case, it can be said that so far as the relief relates to prohibiting or preventing the Central Government from exercising its legislative function by issue of any writ contemplated under article 226 is concerned, cannot be said to be ripe for consideration, unless the required Notification is issued and is sought to be implemented by the authorities concerned for levy and collecting Anti Dumping Duty imposed by such Notification. 148.Notwithstanding that relief has directly not been claimed for restraining the Central Government from issuing the Notification in exercise of authority under Section 9A, the real imprint of the petitioner's relief is to thwart the Central Government from exercising this authority by infructuating the process of finding necessary facts. At this stage, if the issue would have been restricted to that, that would have been end of our quest. 149.However, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of an examination of the degree of(a) 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 per cent of the total production of the like article by the domestic industry, and it examines the accuracy and adequacy of the evidence provided(b) in the application and satisfies itself that there is sufficient evidence regarding- (i) dumping (ii) injury, where applicable; and (iii) where applicable, a causal 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 product of the like article produced by that portion of the domestic industry expressing either support for or opposition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod as the Designated Authority may allow on sufficient cause being shown. Explanation : For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the Designated Authority or transmitted to the appropriate diplomatic representative of the exporting country. The Designated Authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. The Designated Authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the Designated Authority only when it is subsequently reproduced in writing." 151.It has been contended that firstly, the initiation of investigation is subject to fulfilment of condition precedent about submitting of an application in specified form supported by ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is participatory in nature so much so that opportunity is required to be given to all concerned parties by the Designated Authority before recording its finding. Such opportunity includes oral submissions and furnishing of information desired to be furnished. 155.The interested parties as defined under Rule 2(c) includes the industrial users of the article under investigation and the representative consumer organisations in cases where the article is commonly sold at retail level as envisaged under Rule 6(5) are the persons interested in the investigation and all of them are to be provided with opportunity as required under Rule 6 to different interests. Parties are also provided with an opportunity to make oral representations and it is only after considering the rival submissions made by the diverse interests that the Designated Authority has to record its finding, whether preliminary or final, in respect of the following matters respectively. 156.Preliminary findings are required to be in respect of : (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the article which is sufficient for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise to a cause of action to importer to challenge the proceedings at the very inception and may invite interference by the Court on principle set out in Calcutta Discount Company Limited case (supra), it is further contended that if at any stage, the proceedings are conducted not in conformity with the mandatory requirement of the Rules, it gives a cause of action to the petitioner for seeking direction to the authority to quash the proceedings or to issue necessary directions to conclude the investigation in terms of the requirement of the Rules. 158.The question about the distinguishing line between the pure executive action and judicial or quasi judicial act is attracting considerations of the Courts for more than a century. While for the purposes of examining the validity of any action of a State or its instrumentality, the demarcating line between the administrative, executive and quasi judicial act is getting thinner and thinner and in most cases, it is not easily discernible. The development in administration of justice between State and citizens has reached high point when Supreme Court in E.P. Royappa's case, AIR 1974 SC 555 enunciated the scope of reach of guarantee t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of such a body involving such consequence would be judicial acts." 163.The principle was to some extent deviated by Lord Atkin in the King v. The Electricity Commissioner - 1924 (1) KB 171. While considering the scope of a writ of certiorari, he opined : "Wherever any body of person having legal authority to determine the questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs." 164.Later in King v. London Country Council - (1931) 2 KB 215, Scrutton L.J. observed that : "It is not necessary that it should be a Court in the sense in which this Court is a Court. It is enough if it is exercising after hearing evidence, judicial functions in the sense that it is to decide on evidence between a proposal and an opposition and which is not necessary to be strictly a Court; if it is a Tribunal, which has to decide rights after hearing evidence and opposition it is amenable to the writ of certiorari." 165.Lord Justice Slesser in the same judgment, has detailed the four conditions laid down by Lord Atkin under w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights of subjects and such determination is founded on duty to act judicially, it acts in excess of their legal authority. It does not lie to remove or to act upon an order which is of an administrative or ministerial nature. The aforesaid decision in Franklin's case found its approval in the leading judgment of the Court by Chief Justice Kania. 169.On the applicability of the principle on the merit of the case before it viz. whether the authority concern was to act judicially under the scheme of Statute, the Court was split into 4:2, to find that the judgment of the Bombay High Court holding the act to be quasi judicial was not the correct view but approved the test of determining the question whether in a given case, the enquiry to be conducted under the provisions of relevant statute, even if through elaborate procedure, is quasi judicial or administrative, as succinctly stated by Hon'ble Chagla Chief Justice of Bombay High Court, from judgment under appeal. It was quoted by Hon'ble Justice Mahajan as under : "In the first place, a duty must be cast by the legislature upon the person or persons who is or are empowered to act to determine or decide some fact or facts. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the Central Government may decide to issue Notification in the official gazette to impose an Anti Dumping Duty are stated that where any article is exported from any country or territory to India at less than its normal value then only the Central Government may impose Anti Dumping Duty. 176.The maximum limit upto which Anti Dumping Duty can be imposed has also been prescribed by the parent legislation that it should not exceed the margin of dumping in relation to such article. 177.Sub-Section (2) makes two fold provisions. Firstly, it envisages that the Central Government may impose on the importation of such article into India an Anti Dumping Duty on the basis of a provisional estimates of normal value and margin of dumping if such Anti Dumping Duty exceeds the margin determined. Thus, enabling the Central Government to levy a provisional Anti Dumping Duty before determination of the normal value of the article, and the margin of dumping, pending investigation. Simultaneously, it also envisaged that determination of normal value of articles, export price of article and the margin of dumping in relation to any article in question shall be made in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government. Such Designated Authority has to be a person not below the rank of a Joint Secretary to the Government of India or such other person as that Government may think fit for the purposes of rules. Apparently, the reference to person to be appointed as Designated Authority is a natural person and not a juristic person or a body of persons. Before going to the details of the enquiry to be conducted by the Designated Authority and the procedure he has to follow for discharging his duties in respect of such enquiry what is essential for the present purposes is that the proceedings which commences by initiation of investigation under Rule 5, by the Designated Authorities on receipt of written application on behalf of domestic industry which may trigger off investigation into alleged dumping may ultimately culminate into final findings under Rule 17. But reaching such finding itself does not bring into existence any charge, so as to give rise to any liability to duty exhypothesi. 185.Before reaching the stage of final findings the Designated Authority is also empowered to record preliminary findings under Rule 12 regarding export price, normal value and margin o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter again rests with the Central Government which is the delegate of the Parliament to impose in given circumstances Anti Dumping Duty not exceeding the margin of dumping. 188.Under Rule 18, the Central Government is not required to act immediately on publication of the finding which is required to be published, like preliminary finding under Rule 17 by a public notice. Rule 18 provides that the Central Government 'may' within a period of three months of the publication of final findings of the Designated Authority under Rule 17 by Notification in the official gazette impose Anti Dumping Duty on importation into India of the articles covered by the final findings, not exceeding the margin dumping as determined under Rule 17. 189.The Central Government's authority to impose Anti Dumping Duty is hedged by multiple considerations. Section 9B of the Act of 1975 provides that no article can be subject to countervailing duty leviable under Section 9 and Anti Dumping Duty imposable under Section 9A simultaneously. This appears to be so because both the levies primarily concern not so much with raising of public revenue, as much they concern the protection of domestic industry agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Rule 13, the importer who has paid the Anti Dumping Duty becomes entitled to refund of whole or excess amount paid by him as Provisional Duty within a time frame. 193.These provisions make it abundantly clear that the Designated Authority does not decide any lis between the rival parties to it, nor does it decide upon the rights of any party who participate in investigation before him. 194.Notwithstanding identifying the interested parties in the Statute, their appearance before the Designated Authority is not compulsive. No power has been conferred on the Designated Authority to compel appearance of any interested party or compel the production of documents or information. It depends on voluntary participation, so much so that except the parties detailed in Rule 6 (3) it has been left to option of all other interested parties to obtain copy of the application under proviso to Rule 6 (3) of the Rules of 1995. 195.This scheme fortifies us in our conclusion that function of Designated Authority is neither judicial or quasi judicial nor pure administrative in character. The proceedings are in aid of exercise of legislative power by the Central Government as a delegate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decides to impose such Duty. 201.We are, therefore, of the opinion that notwithstanding an elaborate procedure having been provided for finding facts which may enable the Central Government to decide whether to impose or not to impose Anti Dumping Duty and if it is to be imposed at what rate it is to be imposed, the authority to impose Duty remains with the Central Government and until Notification imposing Anti Dumping Duty is published in official gazette, no impact falls on any interest and no adjudication of individual or collective rights is made by the Designated Authority. It remains a fact finding authority for the purpose. It collects information from all interested parties, draw conclusions therefrom and places its conclusions before the Central Government who alone is really been empowered to impose duty to enable it to act upon it. 202.However, without going into the merits of the contention but assuming for the sake of arguments that the Central Government is not to substitute its finding for the findings recorded by the Designated Authority and the only recommendatory part of its finding is the suggested rate at which if Anti Dumping Duty is levied would remove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implementation of which, its civil or evil consequences reach the petitioner, no cause of action arises for initiating a lis. 206.Our this conclusion is supported from interpretation of Section 9C of the Act which has been construed by the Supreme Court to mean that appeal under Section 9C lies only against the determination of Anti Dumping Duty by the Central Government and not against publication of findings by Designated Authority. Our attention was invited to the decision in Saurashtra Chemicals Ltd. v. Union of India - 2000 (118) E.L.T. 305 (S.C.). In its short order the Supreme Court has said :- "We see no reason whatever to entertain these special leave petitions. It is perfectly, clear that we have seen the provisions of the Act that the order of the Designated Authority is purely recommendatory. The appeal lies is against the determination and that determination has to be by the Central Government. For this reason we decline to exercise jurisdiction under Article 136 of the Constitution of India and dismiss the special leave petition." 207.Thus the scheme of the Rules have been clearly interpreted by the Supreme Court and given the findings recorded by the Designated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the Notification imposing Provisional Duty has come into existence and it has affected the petitioner also as it became subject to Anti Dumping Duty as importer and was also effected as industrial user of the subject article. Therefore, so far as challenge to recording and publication of preliminary findings by the Designated Authority is concerned on imposition of provisional Anti Dumping Duty on that basis, cannot be said to be premature nor can it be said that in respect of it cause of action has not arisen. 211.However, there is no dispute about the circumstances existing today that the maximum period for provisional Anti Dumping Duty could have remained in force has almost reached its end and the provisional Anti Dumping Duty is not going to be continuing cause. The levy of Provisional Duty is also not the final but is subject to the decision of the Central Government ultimately to impose Anti Dumping Duty after receiving the final findings. The preliminary finding of the Designated Authority merges into the final findings. Final findings become subject to remedial proceedings if the Central Government notifies the imposition of Duty. If no Duty is levied, the Duty alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed at preventing the Central Government from exercising its power, which is legislative in character, by quashing the proceedings before the Designated Authority which may otherwise be amenable to be reviewed in appeal if the Designated Authority records a finding recommending levy of Anti Dumping Duty until the Central Government finally decides to levy Anti Dumping Duty within three months of the publication of such final findings, no cause of action arises even to file an appeal for withholding the proceedings before the Designated Authority either by issue of a writ of prohibition, certiorari or mandamus. 216.We may notice that maintainability of the writ petition against the preliminary findings and imposition of provisional Anti Dumping Duty has also been accepted by the Division Bench of this Court in Rajasthan Textiles Mills Organization case (supra). 217.In the aforesaid circumstances, we also refrain from expressing any opinion at this juncture whether one is entitled to challenge the very initiation of enquiry if conditions precedent of initiating the enquiry into the complaint of the applicant does not exist, or no foundation for suo motu initiation of investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is an interested party and on this ground we hold that the petitioner has necessary locus standi to raise grievance about the matters relating to the findings recorded by the Designated Authority and the procedure adopted by him. We have not expressed any final opinion whether assumption or non-assumption of jurisdiction to initiate investigation by Designated Authority can provide a cause of action to challenge the same. But assuming it to be so, in our view so far as the subject-matter of the petition concerning challenge to initiation of investigation and the determination of preliminary findings resulting in imposition of Provisional Anti Dumping Duty, it is not a fit case for exercise of extra-ordinary jurisdiction at this stage of the proceedings before the Designated Authority. We further hold that the levy of Anti Dumping Duty is a legislative function to be exercised by Central Government and investigation by Designated Authority is in aid of said legislative function. Therefore, the cause of action to challenge the continued proceedings relating to investigation, which may ultimately lead to final findings and levy of Anti Dumping Duty, has not arisen so far to r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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