Navon Enterprises vs Directorate Of Anti-Dumping And ...
2011 Latest Caselaw 5134 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 
Case :- WRIT TAX No. - 1368 of 2011
 
Petitioner :- Navon Enterprises
 
Respondent :- Directorate Of Anti-Dumping And Allied Duties And Others
 
Petitioner Counsel :- Rahul Agarwal,Bharat Ji Agarwal
 
Respondent Counsel :- A.S.G.I.
 
Hon'ble Sunil Ambwani,J.

Hon'ble Kashi Nath Pandey,J.

We have heard Shri Bharat Ji Agarwal, Senior Advocate assisted by Shri Rahul Agarwal for the petitioner. The office of the Assistant Solicitor General of India, High Court, Allahabad has accepted notice on behalf of respondent nos. 1 and 2. Shri B.K.S. Raghuvansi, Standing Counsel, Central Government appears for them. Shri M.C. Tripathi assisted by Shri Rajesh Sharma appears for La Opala RG Limited, Kolkata-respondent no.3.

The petitioner is a partnership firm having its registered office at Allahabad. The firm is the exclusive importer (for North India) of "RAK" brand of products made out of sodalime glass, sandstone, bonechina, crystal etc. imported from United Arab Emirates (UAE) under a licence/agreement between the petitioner, and the distributor of RAK brand of products, which is an entity by the name of ARC Distribution Tableware Private Ltd.

This writ petition is directed against the notification dated 9.8.2011 issued by Ministry of Finance, Government of India imposing Anti-Dumping Duty @ US$ 0.68 per kg. on the import of the 'Opal Glassware' from UAE. The notification issued by the Ministry of Finance, Government of India is in pursuance to the preliminary findings of Anti-Dumping Investigation concerning imports of 'Opal Glassware' originating in or exported from China PR and UAE dated 27th June, 2011 by Directorate General of Anti-Dumping & Allied Duties, Ministry of Commerce & Industry, Government of India.

The preliminary findings published under the Customs Tariff Act, 1975 after an enquiry in accordance with the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, have been challenged by the petitioner on the following amongst other grounds:-

(a) Because the respondent No. 3 is an exporter of Opal Glassware to more than 25 countries. It has been enjoying an increasing market share and revenues from the sale of Opal Glassware in the Indian Market. Its profit margin has also been increasing. The respondent no. 3 is not domestic industry under Rule 2 (b). The application at its instance is not maintainable.

(b) Because Anti-Dumping Duty can only be imposed if the domestic industry can show that it has suffered material injury on account of imports from countries at a very low price. In view of the increase in sales, market share, profits and profit margin by the respondent No. 3 (which was the sole applicant before the respondent No. 1), it cannot be said that it (domestic industry) has suffered any material injury.

(h) Because despite the fact that the preliminary finding issued by respondent no. 1 dated 27.06.2011 clearly records at clause 39 at page 14 that the import from UAE has declined during the period of investigation compared to the base year, the respondent no. 1 has issued a recommendation imposing a high rate of duty on imports from UAE.

(i) Because the retail prices of products sold by the petitioner and by the respondent no. 3 are almost the same, and sometimes more than the products sold by the respondent no. 3. Further, the petitioner's products had in fact suffered a drop in sale of more than 50% in the year 2009 and was still recovering its market share in the year 2010. As such, no allegation of dumping was sustainable in so far as glassware exported by M/s ARC International Middle East LLC from UAE was concerned.

(n) Because the petitioner or any interested party had no occasion to point out that the respondent no. 3 was not covered within the definition of the domestic industry under Rule 2 (b) and the application filed by it was not maintainable.

(o) Because the respondent no. 1 also did not care to verify the accuracy of the information supplied by the respondent no.3. The increase in prices, sales, profits and profit margins by the respondent no. 3 were not looked at to determine whether or not the domestic industry had suffered any material injury. The mandate of Rule 8 of the Anti-Dumping Rules has been violated."

Before this writ petition was filed, the final findings have been notified on 25.8.2011, in relating to the Anti Dumping investigation concerning imports of Opal Glassware originating in or exported from China PR and UAE vide F. No.14/24/2010-DGAD.

A preliminary objection has been raised by Shri B.K.S. Raghuvansi, appearing for the Central Government, that ARC Distribution Tableware Pvt. Ltd. & another, the products of which are imported by the petitioner as a distributor of RAK brand of products, challenged the same preliminary findings, and also the final findings/notification dated 25.8.2011 issued by the Designated Authority in  Writ Petition (Civil) No. 6710 of 2011. The Delhi High Court has, following its order dated 8.9.2011 passed in Writ Petition (Civil) No. 5849 of 2011, Kodak (China PR) Graphic Communications Co. Ltd and another vs. the Designated Authority and another, declined to entertain the writ petition at that stage, and left it open to the petitioner to make a written representation to the Central Government. Liberty was also granted to the petitioner to challenge any orders, which may be passed in accordance with the law.

Shri Rahul Agarwal submits that though the importers of the Opal Glassware of ARC Distribution Tableware Pvt. Ltd. from UAE, have  filed a representation in pursuance to the orders of the Delhi High Court, with the Ministry of Finance, on which comments have been called from Ministry of Commerce, the petitioner has an independent cause of action to challenge the preliminary findings, which are adversely affecting him and are causing injury, specially at this stage, when its products are in  heavy demand in the Dussehra-Deepawali festival.

We are of the opinion, that when the company registered in UAE of which the petitioner is a distributor, had approached the Delhi High Court, and has been relegated to seek remedies of making representation, and that the final notification has not yet been published by the Ministry of Finance, it will not be appropriate for this Court to interfere on merits in a writ petition filed on behalf of a distributor of the same products exported by ARC Distribution Tableware Pvt. Ltd from UAE.

Shri B.K.S. Raghuvansi has rightly pointed out that if the Ministry of Finance does not accept the findings of Ministry of Commerce, the petitioner  and other importers will be entitled to refund of the entire Anti Dumping Duty paid  under Rule 21 (2) and (3) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.

In view of the above, we dispose of the writ petition with liberty to the petitioner to  join the hearing on the representation, which has been filed in pursuance to the order of the Delhi High Court with the Ministry of Finance. If the petitioner takes the liberty and joins in the proceedings by making a representation, which may be treated as supplementary  to the representation filed by Talwar Agencies Pvt. Ltd., New Delhi and nine others, the grounds referred to above will also be considered by the Ministry of Finance, insofar as Anti Dumping Duty on the exports of Opal Glassware from UAE  is concerned.

Order Date :- 17.10.2011 RKP