Shell Eastern Trading Pte. Ltd v. Union of India & Ors.

1. W.P. (C) No. 2309/2015 and W.P. (C) No. 2313/2015 challenge the Final Findings dated 11^*" January 2015 ofthe Designated Authority ('DA') in the anti-dumping investigation concerning import of 'Flexible Slabstock Polyol' originating in or exported from Australia, the European Union and Singapore. W.P. (C) No. 3726/2015 and W.P. (C) No. 3764/2015 seek, in addition, quashing of the consequential Notification No. 09/2015- W.Ps.(C)No.2309, 2313,3726, 3764 of2015 Page 2of[5] CUS(ADD) dated 7"^ April 2015 issued by the Government ofIndia levying Anti-Dumping Duty ('ADD') onthe above productin exercise of the powers under sub-sections (1) and (5) of Section 9(A) of the Customs Tariff Act, 1975 ('CTA') read with Rules 18 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determinationof Injury) Rules, 1995 ('CT Rules').

2. These writ petitions have been pending in this Court for over two years. An order was passed on 27^*^ March 2015 in W.P. (C) No. 2309/2015 and W.P. (C) No. 2313/2015 stating that any action taken by the Respondents would be subject to final orders passed in the writ petition.

3. During the pendency of these petitions, the Petitioner sought leave to approach the Customs, Excise and Service Tax Appellate Tribunal ('CESTAT') to challenge both the Final Findings of the DA as well as the consequential impugned notification dated 7"' April 2015. However, the said appeals filed before the CESTAT were disposed of on 5^'^ September 2016 granting liberty to the Petitioner to again approach the CESTAT after the final verdict in these petitions. ^ 4. This Court has consistently held the view that, in matters concerning challenge to the Final Findings of the DA and consequential imposition of ADD under the CTA, the Petitioners should exhaust the statutory remedy available to them by approaching the CESTAT first. Illustratively, reference be made to the orders dated 16"'May 2017 in W.P. (C) No. 2632/2017 {Hindustan Lever Ltd. v. Union of India), Alcatel-Lucent India Ltd. v. Designated Authority, 2016 (338) ELT 397 (Del); PTA Users Association W.Ps.(C) No.2309, 2313, 3726, 3764 of2015 Page 3 of[5]

V. Union of India, 2016 (340) ELT 125 (Del); BalajiAction Buildwell v.

Union of India, 2016 (337) ELT 166 (Del) and recently the order dated 24"^ July 2017 in W.P. (C) No. 6267/2017 {M/s Suncity Sheets Pvt. Ltd. y. The DesignatedAuthority)

5. Mr. Balbir Singh, learned Senior Counsel appearing for the Petitioner, points out that, in the present case, in the Disclosure Statement prepared by the DA, it was noted that the Petitioner has fully co-operated in the investigation and that the goods of the Petitioner were not dumped. However, without providing any opportunity tothe Petitioner, the DA inthe Final Finding, reversed the above conclusion and rendered adverse conclusions qua the Petitioner. Mr. Balbir Singh accordingly submitted that, since the main ground ofchallenge is violation ofthe principles ofnatural justice, the Court should, notwithstanding the above decisions, entertain the present petitions.

6. Mr. Jitendra Singh, learned counsel appearing for the domestic industry which has been impleaded through Respondent No. 3, points out that the challenge by Respondent No.3 to the Final Finding and the consequential notification was not entertained by the CESTAT initially in view of the pendency of the present writ petitions. Thereafter by an order dated 6"'December 2016 in W.P. (C) No. 11548/2016 this Court set aside the order of the CESTAT and relegated the Petitioner there (Respondent No. 3 herein), to approach the CESTAT. It is stated that, subsequently, the CESTAT has disposed of the said petitions filed by the Respondent No. 3, upholding the notification dated 11"' January 2015. W.Ps.(C) No.2309, 2313, 3726, 3764 of2015 Page 4of[5] I ^'

7. Be that as it may, the Court is not satisfied that the ground urged by the Petitioner before this Court regarding violation of principle of natural justice cannot be urged by it before the CESTAT. It is certainly within the scope of the proceedings before the CESTAT challenging the Final Findings as well as the consequential notification.

8. Consequently, consistent with the decisions mentioned hereinbefore, the Court declines to entertain these writ petitions while reserving the liberty of the Petitioners to approach the CESTAT with fresh petitions in terms of the liberty already granted by the CESTAT. Given the lapse oftime, it would be open to the Petitioners to request CESTAT for an expeditious disposal ofthe matter.

9. The petitions and pending applications are disposed ofin the aboveterms.

S. MURALIDHAR, J.