By TIOL News Service

NEW DELHI, MAY 22, 2017: THE Petitioner seeks to challenge the Final Finding issued by the Director General of Anti-Dumping and Allied Duties recommending levy of anti-dumping duty on imports of LAB from Qatar, Iran and China.

One of the main planks of challenge is that the Designated Authority (DA) acted in gross violation of principles of natural justice as "despite the fact that Respondent granted hearing on 2nd March, 2017 to various interested parties in the matter, the same was in complete exclusion to the Petitioner herein”.

The Petitioner was asked as to whether the Petitioner was precluded in any manner from urging this very ground before the CESTAT. This question was posed since in Balaji Action Buildwell = 2016-TIOL-959-HC-DEL-CUS and in other cases, the Court had declined to entertain a writ petition directly against the Final Finding of the DA without exhausting the remedy by way of an appeal before the CESTAT.

The petitioner adverted to the decision of the Division Bench (DB) of the Gujarat High Court in Nirma Ltd. v. Union of India (judgment dated 23rd February, 2017 in C/SCA/16426/201) where a similar objection to the maintainability of the petition was rejected.

The High Court examined the cited judgment and observed that it is unable to agree with the conclusion reached by the DB of the Gujarat High Court since the reasons (that weighed with the Gujarat High Court to conclude that it will not be possible for the party aggrieved to challenge the disclosure statement before the CESTAT) were not discernible .

Inasmuch as the High Court observed that if the Final Finding could be appealed against before the CESTAT, there was no reason why the CESTAT could not examine the correctness of the assertions made in the disclosure statement which constituted the very foundation of the entire exercise leading up to the Final Finding by the DA.

After extracting section 9C of the Customs Tariff Act, the High Court added -

"8. Given the scope of the appellate power of the CESTAT as spelt out Section 9 C of the CTA, there is nothing to indicate that the CESTAT would be precluded from examining the validity of the disclosure statement issued under Rule 16 of the Rules. It is like saying that an appellate Court which is in exercise of its powers under Section 96 of the Code of Civil Procedure 1908 (CPC) judicially reviewing a decree and judgment in a suit would be precluded from examining the correctness of the assertions made in a plaint or a written statement. In the context of the proceedings before the DA, the disclosure statement would be comparable to a plaint. Consequently, the Court is not persuaded that the grounds urged in the writ petition cannot be urged before the CESTAT. It is not without significance that the Gujarat High Court makes no reference in the above passage in Nirma Ltd. v. Union of India (supra) to Section 9C of the CTA."

Thereafter, the High Court opined that it was not persuaded to take a view different from the one it has in Balaji Action Buildwell v. Union of India (supra).

And while dismissing the Writ Petition and applications, the Delhi High Court concluded its observations thus -

"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 ac knowledging 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."

Nonetheless, the Court observed that the aforesaid dismissal of the petition would not preclude the Petitioner from availing the statutory remedy of an appeal before the CESTAT in accordance with law.

(See 2017-TIOL-963-HC-DEL-CUS)