Bridgestone India Pvt Ltd & Anr. v. Designated Authority and Anr.

Delhi High Court · 05 Feb 2021 · 2021:DHC:427

Prathiba M. Singh

WP(C) No. 1493/2021

2021:DHC:427

administrative petition_dismissed Significant

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The Delhi High Court dismissed as premature a writ petition challenging the Designated Authority's final anti-dumping findings, directing the petitioners to exhaust statutory appellate remedies after issuance of the final notification.

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WP(C) No. 1493/2021 HIGH COURT OF DELHI
Date of Decision: 5th February, 2021

W.P.(C) 1493/2021 & CM Appl.No. 4293/2021
BRIDGESTONE INDIA PVT LTD & ANR. ..... Petitioners
Through: Mr. Anurag Ojah, Mr. Shivam Malhotra & Mr. Mrinal Singh, Advocates. (M:8744890803)

VERSUS

DESIGNATED AUTHORITY AND ANR. ..... Respondents
Through: Mr. Anurag Ahluwalia, CGSC with Ms. Albeena Wali, Advocate for R-1.
Mr. Sandeep Sethi, Sr. Advocate with Mr. Rajesh Sharma, Advocates for
Applicant CM APPL.4409/2021.
Mr. Tushar Jarwal, Mr. Vivek Aggarwal and Mr. Rahul Sateeja, Advocates for applicant in CM NO. 4425/2021. (M:9818089666)
Mr. Jatin Puniyani G.P., Advocate for UOI.

CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)

JUDGMENT

1. This hearing has been done through hybrid mode (physical and virtual hearing). CM Appl.No. 4294/2021

2. Allowed, subject to all just exceptions. Application is disposed of. W.P.(C) 1493/2021 & CM Appl.No. 4293/2021

3. The Petitioners in the present case have challenged the final findings dated 27th November, 2020 issued by the Respondent No. 1 - Designated 2021:DHC:427 Authority, Directorate General of Trade Remedies, Department of Commerce, Ministry of Commerce and Industry, Govt. of India (hereinafter ‘DA’).

4. The background is that the Petitioners had filed their materials and submitted various documents with respect to the anti-dumping investigation relating to import of New Pneumatic Radial Tyres of Rubber for Buses and Lorries, initiated by the DA vide notification dated 2nd December, 2019. The Petitioners submit that they had suo motu filed their responses along with documents. On 25th August, 2020, Petitioners submitted verification documents to the DA in compliance with the email/notice dated 3rd August,

2020. On 21st October, 2020, the Petitioners participated in the oral hearings conducted by the DA, in accordance with Rule 6(6) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped articles and for Determination of injury) Rules, 1995 (hereinafter, Anti-Dumping Rules, 1995). However they were surprised to see a nonconfidential version of the disclosure statement dated 13th November, 2020 issued by the DA, wherein all the responses/submissions made by the Petitioners were rejected on the simple ground that it was not in the proper format and the prescribed rules in submission of these information was not followed by the Petitioners.

5. The challenge in the present petition is on the ground that since none of the material submitted by the Petitioners has been considered, the final findings are liable to be set aside and the Respondent ought to be directed to consider the said material.

6. On behalf of the Respondents it is submitted that the writ petition is pre-mature. Reliance is placed on the following two judgments of Designated Authority & Ors. v. Sandisk International Limited & Ors., (2018) 13 SCC 402 and Saurashtra Chemicals Limited v. Union of India,

7. Mr. Sandeep Sethi, Sr. Advocate and Mr. Tushar Jarwal, appearing for the Applicant/JK Tyre and Industries Limited before the authority has also taken the same stand that the writ petition is pre-mature and cannot be entertained at the stage of final finding.

8. This Court has been consistent in its view on challenges raised at the stage of final finding which is clear from perusal of judgment in Suncity Sheets Pvt. Ltd. v. Designated Authority, Directorate General of Anti- Dumping and Allied Duties/Ministry of Finance, [W.P.(C) 6267/2017, decided on 24th July, 2017], the Division Bench has held as under:

“6. This Court has in its order dated 16th May,

2017 in W.P.(C) 2632/2017 (Hindustan Lever Ltd.

v. Union of India) declined to entertain a writ petition, challenging the Final Finding of the DA on account of the availability to the Petitioner there of an efficacious statutory remedy of appeal before the CESTAT. In the said decision, this Court referred to and distinguished the above decision of the Gujarat High Court in Nirma Limited v. Union of India (supra). This Court preferred to follow its earlier decisions in Alcatel- Lucent India Ltd. v. Designated Authority 2016 (338 ELT 397 (Del.); PTA Users Association v. Union India 2016 (340) ELT 125 (Del.) and Balaji Action Buildwell v. Union of India 2016 (337) ELT 166 (Del.) in which this Court had consistently declined to entertain a petition under Article 226 of the Constitution of India challenging the Final Finding of the DA without the Petitioner exhausting the statutory remedy of an appeal

before the CESTAT. In Hindustan Lever Ltd. v. Union of India (supra), the Court explained:

"10. The question is not whether this Court can entertain the present writ petition. The question is whether, in the facts and circumstances, it should? The power under Article 226 of the Constitution is an extraordinary one and should not be exercised in a routine manner especially when the Petitioner has an efficacious and adequate alternative statutory remedy available. Otherwise, the Court would be supplanting the functioning of the statutory appellate authority tasked specifically with reviewing the correctness of the orders of the subordinate statutory authorities. Therefore, while acknowledging that this Court does have the jurisdiction to entertain the writ petition, in the facts and circumstances of the present case the Court finds that no case has been made out to persuade it to exercise its jurisdiction under Article 226 of the Constitution to examine the correctness of the Final Finding of the DA. The Court is of the firm view that every ground urged in the present writ petition can well be urged before the CESTAT."

7. This Court is not persuaded to take a different view in the present petition for both the reasons noted hereinbefore viz., the petition is premature since no notification has yet been issued by the Central Government consequent upon the Final Finding dated 4th July, 2017 and secondly, even if such a notification is issued, the Petitioner has an alternative statutory remedy of an appeal before the CESTAT.”

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9. The Supreme Court has also categorically settled the legal position in Designated Authority & Ors. (Supra) as under:

“6. From a perusal of the aforesaid materials on record we find that there are seriously disputed questions with regard to the locus of the respondent M/s Sandisk International Ltd. to file the writ petition before the Delhi High Court and also as to whether the information sought for by the said respondent was actually furnished to it by the Designated Authority in the above communications and orders. Though we would not deem it appropriate to lay down any inflexible proposition of law that in no case the final findings of the Designated Authority can be subject to challenge under Article 226 of the Constitution of India, we are of the view that in the facts of the present case the High Court was not justified in exercising its writ jurisdiction and in setting aside the final findings of the Designated Authority. Rather, according to us, the High Court should have asked the writ petitioner before it to await the issuance of the final notification under Rule 18 of the Rules and to challenge the same before the appropriate appellate forum under Section 9-C of the Customs Tariff Act, 1975 as and when such a notification is issued. In such an eventuality the final findings of the Designated Authority were bound to be considered by the appellate authority which authority would also have been better equipped to examine such a challenge.”

10. While the Petitioner may have a grievance that on a mere technical objection or a technical non-compliance, substantive material of the Petitioner has been ignored, the Petitioner would have to wait for the final notification, if any, issued by the Government in order to challenge the same in accordance with law. The final findings issued by the designated authority under Rule 17 of Anti-Dumping Rules, 1995 are submitted to the Central Government which `may’ impose anti-dumping duty under Rule 18 of the said rules. Unless and until the notification under Rule 18 is issued, the duty does not take effect.

11. Accordingly, following the judgements extracted above, the writ petition is dismissed as being pre-mature, however leaving open the Petitioners right to avail its remedies. In any such remedy is availed of by the Petitioners, challenging the final notification, if any, under Rule 18 of the Rules, the Petitioner is permitted to urge the grounds raised herein.

12. The petition and all pending applications are disposed of in the above terms.

PRATHIBA M. SINGH JUDGE FEBRUARY 5, 2021 mw/Ap (corrected & released on 8th February, 2021)

Bridgestone India Pvt Ltd & Anr. v. Designated Authority and Anr.

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