1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.83 of 2010 M/s Spacewood Furnishers Pvt.Ltd. ..Petitioners vs. 1 Designated Authority & ors. ..Respondents Mr.V.Sridharan with Mr.Prakash Shah i/b PDS Legal for petitioners. Mr.M.I.Sethna, Sr.Counsel with Mr.S.R.Ganbavale and Mr.A.M.Sethna for respondent nos. 1 and 2 Mr.R.K.Abhichandani, Sr.Counsel i/b Mr.Uday Warunjikar for respondent no.3 Mr.D.B.Shroff, Sr.Counsel with Mr.S.N.Kantawala i/b Mr.Brijesh Pathak for respondent nos. 4 and 5 Mr.P.S.Jetley for respondent no.6 Judgment Reserved on 3.3.2010 Judgment pronounced on: 23.3.10 CORAM: V.C.DAGA AND K.K.TATED JJ 23 rd March,2010 ORDER: (PER VIJAY DAGA J.) Perused petition. Heard the learned Counsel appearing 2 for the parties to the petition. 1 This petition takes exception to the final findings no.14/2/2007/DGAD dated 26 th August, 2009 and the consequent customs notification no.116/2009 dated 8 th October, 2009 issued by the Ministry of Finance and implementing the recommendations contained in the said final findings with further prayer ordering and directing respondent nos. 1 and 2 to withdraw and/or cancel the said impugned final findings together with the notification with further prayer to restrain them from acting upon the said order and notification and from collecting anti dumping duty levied in terms of the said notification dated 8 th October, 2009. 2 The petitioners have also prayed for interim relief in terms of the final prayer. In other words, the final prayer and the interim prayer both are identical. In addition to the challenge to the final 3 findings and the notification referred to above, the petitioners have also challenged the Customs Tariff (Identification, Assessment and Collection of Antidumpting Duty on Dumped Articles and Determination of Injury) Rules, 1995 (Rules) contending that they are ultra vires to Article 14 of the Constitution of India. 3 The above petition was heard on admission. SUBMISSIONS 4 Mr.Abhichandani, learned Senior Counsel appearing for respondent no.3 raised a preliminary objection to the maintainability of the petition contending that alternate remedy under section 9-C of the Customs Tariff Act, 1975 (as amended)is available to the petitioners against the final notification imposing anti-dumping duty as also to challenge the validity of the Rules as such, this writ petition should not 4 be entertained in exercise of powers under Article 226 of the Constitution of India. He placed reliance on the judgment of the Apex Court in the case of NITCO Tiles Ltd. Vs. Gujarat Ceramic Floor Tiles Mfg. Assn. Reported in 2006(199) E.L.T.198 (S.C.) wherein the Apex Court observed as under: 3..The High Court refused to accede to the preliminary objections raised by the Union of India that the respondent no.1 should be relegated to the alternative remedy available to it under the Customs Tariff Act, 1985. The only ground for entertaining the writ petition given by the High Court was that the question raised in this petition is not only important but also sensitive affecting the people of the country at large. 4 This is no reason at all, as the economic impact of every case of alleged dumping would necessarily affect the people of the country at large. If the reasons given by the High Court were to be accepted as a valid basis for exercise of its judicial discretion to entertain the writ petition in its extra ordinary jurisdiction under Article 226 of the Constitution, then the provisions for appeal against the orders passed by the designated authority in respect of anti dumping issues would be 5 rendered otiose and a person aggrieved by the final finding of the designated authority could, despite the express provision of Section 9C of the Customs Tariff Act, invoke the writ jurisdiction with impunity. (Emphasis supplied) 6 Mr. Abhichandani also pressed into service another judgment of the Apex Court in the case of H & R Johnson (India) Ltd. Vs. Union of India reported in 2005(181) E.L.T.297 (S.C.) wherein the Apex Court observed as under: 8 It has been drawn to this Court s attention by the Ld.Solicitor General that in terms of Sectio9n 129(5) of the Customs Act, the President of the Tribunal is expressly authorised to delegate his functions under the Act to the Vice President of the Appellate Tribunal. By Notification dated 16-7-1999 the then President of the Tribunal (then known as the Customs, Excise and Gold (Control) Appellate Tribunal) in exercise of the powers conferred by Sec.129(5) of the Customs Act, 1962 delegated his power and functions qua President in his absence, whether on leave or otherwise to the Senior Most Vice President to perform such of the functions of the President as might be necessary for the efficient functioning of the Tribunal. 6 Therefore, until the President is appointed it would be open to the Senior Vice President to discharge the functions of the President. We are told that Benches have already been constituted for hearing appeals. 9 Since the Tribunal is already in seizin of the appeal filed by the appellant from the final findings on the new shipper review as well as the subsequent notifications, no purpose will be served in keeping this appeal alive which only related to an interim stage of the new shipper review. It would in the circumstances be appropriate to allow the appellants to pursue the appeal before the Appellate Tribunal. 10 In the circumstances this appeal is disposed of by granting leave to the appellants to urge all the contentions raised in this appeal in the pending appeal before th4e CESTAT. CESTAT shall decide the matter without being influenced by the High Court s judgment dated 2-12-2003. CESTAT shall decide the matter as expeditiously as in conveniently possible and preferably by 31 st May 2005. (Emphasis supplied) 7 Mr.Abhichandani has relied upon one more unreported judgment of the Delhi High Court in the case of Kundan Rice Mills Ltd. 7 Vs. Union of India and another, in WP(C)no. 6747 of 2007 dated 11 th October, 2007 wherein the Delhi High Court observed that even though the High Court can entertain the writ petition, challenging the final findings of the mid-term review carried out under Rule 23 of the Anti Dumping Rules. However, it would not be appropriate to by-pass the statutory remedy and entertain the writ petition. Considering involvement of several issues High Court thought it fit to relegate the parties to the appellate remedy. 8 With the aforesaid foundation, Mr.Abhichandani went on to place reliance on another judgment of the Apex Court in the case of Assistant Collector of Central Excise, West Bengal Vs. Dunlop India Ltd. and others reported in 1985(19)E.L.T. 22(S.C.) wherein the Apex Court observed as under: ...Article 226 of the Constitution is not meant to short circuit or 8 circumvent statutory procedure. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, for instance, where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require that recourse may be had to Article 226 of the Constitution. But, then the Court must have good and sufficient reasons to bypass the alternative remedy provided by statute. Relying upon the above observations, he urged that interim orders in the case of public revenue should not be granted merely because a prima facie case is said to have been made out. Balance of convenience must be in favour of making of an interim order. 9 Mr.Abhichandani while expanding the scope of the preliminary objection went on to contend that the validity of anti dumping rules is challenged in the petition only to circumvent the appellate forum. In his 9 submission, the Tribunal can also examine the validity of the Rules. In support of his submissions he placed reliance on the judgment in the case of L.Chandrakumar Vs. Union of India and others reported in (1997)3 Supreme Court Cases 261 and pressed into service paragraphs 90, 91,93 and 99 thereof. He placed heavy reliance on the observations of the Apex Court which read as under: ...The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunals concerned falls. With the aforesaid submission Mr.Abhichandani also tried to justify the rules and reasonableness thereof. 10 Mr.Abhichandani also urged that the petition involves various questions of facts in the light of the principles for 10 determination of margin of dumping, export price, normal value and for determination of injury as provided in Annexures I and II. He further went on to demonstrate that sufficient opportunity was given at various stages to the petitioners to express its views. As such, this is not a fit case for consideration in the writ jurisdiction of this Court. 11 In reply, Mr.Sridharan, learned Counsel for the petitioners urged that so far as the validity of Rules is concerned, the Appellate Tribunal has no jurisdiction to consider the validity thereof. According to him, Article 323-B only specifies the Parliament s powers to make law for entrusting matters to the Tribunal which is created under the law i.e. under section 129 of the Customs Act with other statutory provisions made thereunder regarding the matters, entrusted to it to exercise 11 jurisdiction to the exclusion of all Courts except the High Court and the Supreme Court. He took us through the provisions of Administrative Tribunal s Act to demonstrate that the Administrative Tribunals are bestowed with specific power to deal with the validity of the statutory rules. As against this, in his submission, Appellate Tribunal created under section 129 of the Customs Act has no such power or jurisdiction. He thus submits that so far as the validity of Rules is concerned that will have to be considered by this Court alone in exercise of its writ jurisdiction. 12 Mr. Sridharan further urged that so far as alternate remedy is concerned, it is not necessary in all cases that the parties should be relegated to an alternative remedy. In his submission, looking to the challenges set up and in the light of the challenge to the Rules, it would be in the interest of 12 justice to entertain this petition without relegating the petitioners to alternate remedy. CONSIDERATION 13 Having heard both parties, the preliminary objection raised by Mr.Abhichandani to the extent that the alternative remedy is very much available to the petitioners under section 9C of the Customs Tariff Act, 1975 needs acceptance in view of the law laid down by the Apex Court referred to hereinabove. 14 Mr.Abhichandani is right in contending that various factors leading to the investigation of some of the questions on fact in the light of the principles for determination of margin of dumping, export price, normal value and for determination of injury as provided in Annexures I and II will have to be gone into which this Court will not be able to go in the writ jurisdiction 13 since that would amount to investigation of facts which may turn out to be disputed one. Investigation thereof may not be proper in the writ jurisdiction of this Court. 15 So far as the alternative remedy available to challenge the anti dumping rules canvassed by Mr.Abhichandani is concerned, it is necessary to turn to the provisions of Article 323B inserted by the Constitution (42 nd Amendment Act, 1976, which clearly contemplate constitution of a Tribunal of the nature mentioned therein. Article 323B of the Constitution merely authorizes the appropriate legislature to make laws to set up Tribunals to the exclusion of Courts. 16 Article 323B(1) enables the Parliament to provide, by legislation, for the adjudication by Tribunals, of the matters specified in clause (2) including levy, assessment, collection and enforcement of any tax under sub-clause (a) thereof. Such laws 14 made under clause (1) may provide for the establishment of hierarchy of Tribunals, specify their powers and procedures under clause (3) of Article 3423B. Thus, Article 323B only specifies the Parliament s power to make law for entrusting matters to the Tribunal created or to be created under the law, which is evident from the observations of the Supreme Court made in paragraph 81 in the case of L.Chandrakumar Vs. Union of India and others reported in (1997) 3 Supreme Court Cases 261 reading as under: 81....there is no reason why the power to the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323-B of the Constitution. 17 Both Articles 323A and 323B contemplated that such tribunals may be established under a statute which provide for such establishment and did not create them. 15 Section 129 of the Customs Act is a law made under clause (1) of Article 323B that provided for the establishment of this Tribunal by requiring the Central Government to constitute this Appellate Tribunal, as contemplated by clause (3) of Article 323B. One of such Tribunal is created under Section 129 of the Customs Act with other statutory provisions made thereunder regarding matters entrusted to it. 18 The establishment of the above Tribunal owes its existence to the law made by the Parliament in the exercise of the powers to make law providing for establishment of tribunals as specified in Article 323B(3)(a) read with Article 323B(1) and 2(a) of the Constitution. 19 This Appellate Tribunal has clearly an independent statutory existence flowing from the constitutional provisions of Article 323B that specify the power of the Parliament 16 to make law providing for its establishment. Such Tribunals have a power and competence to test the constitutional validity of the statutory provisions and rules provided specific powers in that behalf are bestowed on the Tribunal. This legal position is clear from the observations made by the Supreme Court in paragraph 93 in the case of L.Chandra Kumar (supra) reading as under: The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. 20 The aforesaid view is in consonance with the view taken by the Apex Court in the case of Central Bank of India Vs. Vrajlal Kapurchand Gandhi and another (2003) 6 SCC 17 573 wherein it has been held that the constitutionality of a statute cannot be decided by the Court or Tribunal q constituted under the statute. 21 On the above legal backdrop, no power, prima facie, appears to have been conferred on the appellate Tribunal established under section 129 of the Customs Act to decide validity of Rules, as such petition in hand to the extent it raises question relating to the validity of Rules will have to be entertained to examine the merits of the challenges set up in the petition. Hence, following order. O R D E R Rule so far as prayer clause (a) is concerned. So far as prayer clauses (b) and (c) are concerned challenges set up therein stand rejected leaving the petitioner to exhaust alternate appellate remedy, if advised. Three weeks time is granted to file 18 appeal before the Appellate Authority.Prayer for interim relief does not survive. Order accordingly. (K.K.TATED J.) (V.C.DAGA J.)