DILIP KUMAR JAIN Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The subject matter of the writ petition is imposition of anti dumping duty imposed upon the petitioner. Under various notifications the Anti Dumping Authority has levied anti dumping duty in respect of the Styrene Butadine Co-polymer Resins KHS-68 (hereinafter referred to as the KHS-68).

(2.) The petitioner filed a writ application being No. 1778 of 2000 in anticipation of the imposition of the said anti dumping duties on KHS-68. No interim order was passed in that writ petition. Thereafter, the petitioner filed a second writ petition being W.P. 2772 of 2000 inter alia, praying for a writ in the nature of mandamus commanding the Respondents to act and proceed in accordance with law and directing the respondents to rescind, recall, cancel and/or withdraw the anti dumping duty imposed or sought to be imposed and the show cause notice dated 19th July, 2000 and the order dated 29th September, 2000 passed by the authorities and to give any further effect to the said orders and further to issue a writ in the nature of mandamus declaring imposing of anti dumping duties upon the KHS-68 as ultra vires to Sections 9A and 9B of the Customs Tariff Act, 1975 and the Customs Tariff (Identification Assessment and collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the Rules of 1995) and the notification dated 22nd May, 2000. According to the petitioner, the notification dated 22nd May, 2000 has no manner of application in respect of the KHS-68 goods since the same is coming under Chapter 39 under Heading 39.03. According to the petitioner, due to liberalisation of Imports and Exports the Styrene Butadine Rubber was imported from Korea and other countries at the cheaper rate for which Indian manufacturers of Styrene Butadine Rubber coming under Chapter 40 of the classification under Customs Tariff and the Indian manufacturers were suffering loss. With the object of protecting the Indian manufacturers of different goods Sections 9A and 9B was inserted in the Customs Tariff Act, 1985 for imposing anti dumping duty on the import of the goods manufactured by Indian manufacturers. The anti dumping duty is imposed under Sections 9A and 9B read with Customs Tariff (Identification, Assessment and collection of anti-dumping duty on dumped articles and for determination of Injury) Rules, 1995 (hereinafter referred to as the said Rules). Under Rule 3 of the said Rules, the Designated authority not below the rank of Joint Secretary to the Government of India is appointed for the purpose of the said Rules of 1995. The learned Counsel appearing on behalf of the petitioner drew my attention to Rule 4 of the said Rules of 1995 and submitted that the duties of the said Designated authority has been specifically mentioned under the said rule. He, further submitted that under Rule 5, the Designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of written application by or on behalf of the domestic industry and after initiating such investigation under Rule 6, determination of normal value export price and margin of dumping and determination of injury under Rules 10 and 11, a preliminary finding is to be made under the said rules and after such preliminary finding anti dumping duty is provisionally imposed under Rule 13 until such provisional duty remain in force until the final finding under Rule 17 is made. According to the petitioner, these are the conditions precedent for imposition of anti dumping duty.

(3.) The petitioner further contended that in respect of manufacturer of Styrene Butadine Rubber (hereinafter referred to as SBR) an application was made by one Synthetic and Chemicals Limited and on the basis of the said application, a public notice on 7th April, 1998 was issued to all concerns and preliminary finding was made on 21st January, 1999 and after the detailed investigation the Designated authority came to the conclusion of preliminary finding and anti dumping duty imposed by the Designated authority. Thereafter following the procedure, the Designated authority on 2nd June, 1999 passed final finding affirming the preliminary finding and imposed anti dumping duty on SBR.