IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.1.2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Appeals No.1237 and 1238 of 2010, Writ Petitions No.8901 and 10709 of 2010, M.P.No.1 of 2010 in W.A.1237 of 2010, M.P.No.1 of 2010 in W.A.1238 of 2010, M.P.Nos.2 to 5 of 2010 in W.P.No.8901 of 2010 and M.P.Nos.1 to 6 of 2010 in W.P.No.10709 of 2010 W.A.No.1237 of 2010: M/s.SRF Limited, through Chief Manager (Legal), Block C-8, Sector 45, Gurgaon, Haryana. ... Appellant/Third Party Vs. 1.M/s.Refex Refrigerants Limited, rep.by its Director, Having its Corporate Office at 67, Bazullah Road, T.Nagar, Chennai-600017. 2.The Union of India, rep.by its Secretary, Ministry of Commerce and Industry, Udyog Bhavan, New Delhi-110011. 3.The Additional Secretary and Designated Authority, Directorate General of Anti-Dumping and Allied Duties, Department of Commerce, Ministry of Commerce, Ministry of Commerce and Industry, Udyog Bhavan, New Delhi-110011. https://hcservices.ecourts.gov.in/hcservices/ 4.The Union of India, rep.by its Secretary, Ministry of Finance, Udyog Bhavan, New Delhi-110011. ... Respondents/Petitioner and Respondent W.A.No.1238 of 2010: M/s.SRF Limited, represented by Chief Manager (Legal) Block C-8, Sector 45, Gurgaon, Haryana ... Appellant Vs. 1.M/s.Refex Refrigerants Limited, represented by its Director, having its Corporate Office at 67, Bazullah Road, T.Nagar, Chennai-600017. 2.Union of India, rep.by the Secretary to Government, Ministry of Commerce and Industry, Department of Commerce, Directorate General of Anti-Dumping and Allied Duties, Udyog Bhavan, New Delhi. 3.Mr.P.K.Chaudhary, The Designated Authority, Ministry of Commerce and Industry, Department of Commerce, (Directorate General of Anti-Dumping and Allied Duties), Udyog Bhavan, New Delhi. 4.Mr.D.P.Mohapatra, Director, The Designated Authority, Ministry of Commerce and Industry, Department of Commerce, (Directorate General of Anti-Dumping and Allied Duties), Udyog Bhavan, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 5.The Secretary to Government, Union of India, Ministry of Finance, Department of Revenue, Central Secretariat, New Delhi. 6.The Designated Authority, Ministry of Commerce and Industry, Department of Commerce, (Directorate General of Anti-Dumping and Allied Duties), Udyog Bhavan, New Delhi. ... Respondents W.P.No.8901 of 2010: M/s.Refex Refrigerants Limited, represented by its Managing Director, Having its Corporate Office at No.67, Bazullah Road, T.Nagar, Chennai-600017. ... Petitioner Vs. 1.Union of India, represented by its Secretary, Ministry of Commerce and Industry, Udyog Bhavan, New Delhi-110011. 2.The Additional Secretary and Designated Authority, Directorate General of Anti-Dumping and Allied Duties, Department of Commerce, Ministry of Commerce and Industry, Udyog Bhavan, New Delhi-110011. 3.Union of India, represented by its Secretary, Ministry of Finance (Department of Revenue), Udyog Bhavan, New Delhi-110011. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P.No.l0709 of 2010: M/s.Refex Refrigerants Limited, rep.by its Managing Director, Having its Corporate Office at No.67, Bazullah Road, T.Nagar, Chennai-600017. ... Petitioner Vs. 1.Union of India, rep.by the Secretary to Government, Ministry of Commerce and Industry, Department of Commerce, Directorate General of Anti-Dumping and Allied Duties, Udyog Bhavan, New Delhi. 2.Mr.P.K.Chaudhary, the Designated Authority, Ministry of Commerce and Industry, Department of Commerce (Directorate General of Anti- Dumping and Allied Duties), Udyog Bhavan, New Delhi. 3.Mr.D.P.Mohapatra, Director, The Designated Authority, Ministry of Commerce and Industry, Department of Commerce (Directorate General of Anti- Dumping and Allied Duties, Udyog Bhavan, New Delhi. 4.The Secretary to Government, Union of India, Ministry of Finance, Department of Revenue, Central Secretariat, New Delhi. 5.The Designated Authority, Ministry of Commerce and Industry, Department of Commerce (Directorate General of Anti-Dumping and Allied Duties), Udyog Bhavan, New Delhi. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ * * * Writ Appeals No.1237 and 1238 of 2010 have been preferred under Clause 15 of the Letters Patent while W.P.Nos.8901 and 10709 of 2010 have been filed under Article 226 of the Constitution of India. W.A.No.1237 of 2010 has been preferred as against the order dated 5.5.2010 made in M.P.No.2 of 2010 in W.P.No.8901 of 2010 by a learned single Judge of this Court. W.A.No.1238 of 2010 has been preferred as against the order dated 12.5.2010 made in M.P.No.1 of 2010 in W.P.No.10709 of 2010 by a learned single Judge of this Court. W.P.No.8901 of 2010 has been filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in its Notification No.52/2010-customs dated 19.4.2010, based on the Preliminary Findings dated 19.2.2010 of the second respondent under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 read with Sections 9A and 9B of the Customs (Tariff) Act, 1975 in respect of goods classified as 1,1,1,2-Tetraflouroethane or R-134a of all types originating in or exported from China and Japan and the Preliminary Findings dated 19.2.2010 given by Respondent No.2 and quash the same and consequently direct the respondents to strictly comply with the directions dated 19.4.2010 issued by this Court in W.P.No.6952 of 2010. W.P.No.10709 of 2010 has been filed praying to issue a Writ of Mandamus, directing the respondent Nos.2 and 3 to rescue themselves from the proceedings initiated by the respondent No.1 and 5 under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules,1995 read with Sections 9A and 9B of the Customs (Tariff) Act, 1975 in respect of goods classified as 1,1,1,2- Tetraflouoroethane or R-134a of all types originating in or exported from China and Japan and the Preliminary Findings dated 19 February 2010 given by Respondent No.2 and consequentially direct the 1st and 5th respondents to appoint an impartial officer to hear and adjudicate upon the submissions of the petitioner herein. M.P.No.3 of 2010 in W.P.No.10709 of 2010 has been filed by the writ petitioner praying to amend the prayer in W.P.No.107090 of 2010 as follows: https://hcservices.ecourts.gov.in/hcservices/ "Issue a writ of Certiorarified Mandamus, calling for the records pertaining to the order bearing F.No.18/8/2010-DGAD dated 21 May 2010 passed by the 2nd respondent and communicated by the 3rd respondent and quash the same and consequently directing Respondent Nos.2 and 3 to recuse themselves from the proceedings initiated by the Respondent No.1 and 5 under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 read with Sections 9A and 9B of the Customs (Tariff) Act, 1975 in respect of goods classified as 1,1,1,2-Tetrafluoroethane or R-134a of all types originating in or exported from China and Japan and the Preliminary Findings dated 19 February 2010 given by Respondent No.2 and further direct the 1st and 5th respondents to appoint an impartial officer to hear and adjudicate upon the submissions of the petitioner herein". M.P.No.6 of 2010 has been filed by the petitioner therein (M/s.SRF Limited/the appellant in Writ Appeals above mentioned) praying to implead them as party respondent in W.P.No.10709 of 2010. * * * For appellant in: Mr.R.Muthukumarasamy, both the W.As., Senior Counsel for who are the petitioners Mr.A.Jenasenan in MP.No.6/10 in WP.10709/10 For R.1 in both the WAs., who are the: Mr.A.L.Somayaji, petitioner in W.Ps. Senior Counsel for Mr.Sathish Parasan For other respondents in all the matters : Mr.R.Ravindran, Addl.Solicitor General of India assisted by Mr.M.Damodaran, SCGPC for RR2 to 4 in WA.1237 & 1238/10 for RR1 to 3 in WP.8901/10 for R1 to R5 in WP.10709/10 * * * https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT ELIPE DHARMARAO, J. For the sake of easy reference and convenience, the writ petitioner in both the writ petitions (M/s.Refex Refrigerants Limited) is hereinafter referred to as the 'petitioner' and the appellant in both the writ appeals (M/s.SRF Limited) is hereinafter referred to as the 'complainant' and the official respondents are referred to as per their ranking in W.P.No.10709 of 2010. 2. From the materials placed on record, it is assessed that both the writ petitioner and the complainant are in the business of Refilling and Sale of Refrigerant gases used in Air Conditioning and Refrigeration Industry. Till about 1999, Chloroflouro Carbon Gas (CFC) was commonly used in Air-conditioning and Refrigeration and since the use of the said gas was considered unfriendly to the environment, since having Ozone depleting effect, under the Montreal Protocol of 1999, to which our country is also a signatory, it was decided that CFC shall be substituted by Hydrofluoro Carbon Gas (HFC), a non-Ozone depleting gas and the signatory countries are required to freeze the production of CFC gas by July 1999, achieve 50% reduction of CFC production by January 2005 and completely stop use of CFC gas by January, 2010. According to the petitioner, they import HFC gas mainly from China and Japan in the form of large ISO tanks and after import, transfer the contents into low capacity tanks and distribute the same in India. 3. The first respondent is the Authority entrusted with the function and responsibility to administer the anti-dumping law in India and the second respondent is the designated authority appointed under the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on dumped articles and for determination of Injury) Rules, 1995, to carryout various functions under the Rules including identification of the article liable for anti-dumping duty, to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article and to recommend the amount of anti-dumping duty which could be levied in respect of the article. 4. Dumping in legal parlance is said to have taken place when an exporter sells a product to India at a price less than the price prevailing in its domestic market. To maintain level playing field and prevent dumping, but allowing healthy competition among the traders, Section 9-A has been introduced to Customs Tariff Act, providing anti-dumping duty on dumped articles. By virtue of https://hcservices.ecourts.gov.in/hcservices/ introduction of this Section, the Government of India was given the right to impose an anti-dumping duty in relation to such article and such duty shall not exceed the difference between its export price and its normal value. 5. In this backdrop, alleging that the petitioner is committing dumping, which is affecting the domestic industry in the field, the complainant has filed an application before the Designated Authority under the Customs Tariff Act, 1975 and Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, alleging dumping of 1,1,1,2-Tetraflouoroethane or R.134a of all types originating in or exported from China and Japan and requested initiation of Anti Dumping investigation for levy of anti dumping duties on the above said subject goods against the petitioner. Based on the same, anti-dumping investigation was initiated by the respondents against the petitioner and provisional determination regarding the anti-dumping duty was arrived at by them under the proceedings dated 19.2.2010. 6. It is seen from the materials placed on record that when the preliminary findings dated 19.2.2010 was given by the second respondent as the Designated Authority, recommending provisional anti-dumping duty on imports of subject goods from the subject countries(China and Japan in the case on hand) in the form and manner provided for in the duty table annexed therewith, the petitioner herein has filed W.P.No.6952 of 2010 before this Court, praying to issue a writ of mandamus to direct the respondents 1 to 3 to consider their representations dated 24.9.2009 and 5.4.2010 and a learned single Judge of this Court, by the order dated 19.4.2010, while disposing of the said writ petition has observed and directed as follows: "6. Going by the said regulation governing the investigation, the only grievance of the petitioner herein is that without adverting to the various contentions raised therein, the provisional order has been passed. It is further stated that the complainant itself is an importer of the goods. Having regard to the serious prejudice faced and in the light of the absence of any remedial provisions as against the provisional order of the respondent, it is absolutely essential that the petitioner's interest be properly considered before any demand is made on the petitioner. 7. I agree with the submission of the learned Advocate General that having regard to the guidelines given in the Rules and the specific request made by the petitioner in their representation seeking a personal hearing in this https://hcservices.ecourts.gov.in/hcservices/ matter, without disturbing the order, the second respondent is hereby directed to consider the objection of the petitioner in terms of the representation dated 24.9.2009 as well as 5.4.2010 by affording opportunity to the petitioner for personal hearing and pass orders thereon within a period of six weeks from today. It is also made clear the respondent shall furnish the materials which are relied on as provided for under sub clause 6 of Rule 6 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped articles and for determination of injury) Rules, 1995. 8. Considering the above directions issued, in the meantime, the respondents are directed not to implement the order. Depending on the outcome of the order passed, it is open to the respective parties to work out their remedies. 9. With the above observation, the writ petition is disposed of...." 7. This order, which has attained finality since not challenged by any of parties, came to be passed by the learned single Judge on 19.4.2010, after hearing Mr.P.S.Raman, Senior Counsel (and also the Advocate General of Tamil Nadu) appearing for the petitioner and Mr.Damodharan, learned Senior Central Government Standing Counsel appearing for the respondents therein. Before taking up the matter for final hearing, the learned single Judge has also ordered notice to the learned Central Government Standing Counsel on 7.4.2010, which has been promptly served by the learned counsel for the petitioner on the same day, as could be seen from the typed set of papers filed along with W.P.No.8901 of 2010. But, on the same day when the above extracted order came to be passed by the learned single Judge on 19.4.2010, the provisional anti-dumping duty came to be imposed on the petitioner by the Ministry of Finance Notification No.52/2010- Customs, dated 19.4.2010. This has driven the petitioner to file W.P.No.8401 of 2010 before this Court on 23.4.2010. When this Writ petition was taken up in the vacation court on 5.5.2010, a learned single Judge, considering the fact that oral hearing (public hearing) has been fixed by the Designated Authority on 10.5.2010 wherein the domestic industry/importers/exporters/users and other interested parties in connection with the anti dumping investigations are permitted to participate, has issued the following direction: "Considering the facts and circumstances of the case and submissions made by the learned senior counsel for the petitioner as well as learned standing counsel appearing for the respondents, the petitioner is directed to participate in the oral hearing scheduled on 10.5.2010 and raise all its contentions which are open to it under law and thereafter,the Designated Authority shall take a final https://hcservices.ecourts.gov.in/hcservices/ decision in the matter. Pending such decision, the impugned notification in No.52/2010-Customs, dated 19.4.2010 shall not be given effect to insofar as the petitioner is concerned. Notice." 8. Thereupon, as scheduled, the public hearing was conducted on 10.5.2010. But, alleging bias and pre-determined mind by the respondents 2 and 3, the petitioner has again knocked the doors of this Court by filing W.P.No.10709 of 2010, praying to issue a Writ of Mandamus, to direct the respondents 2 and 3 to recuse themselves from the proceedings initiated by the respondents 1 and 2 and to direct the respondents 1 and 5 to appoint an impartial officer to hear and adjudicate upon their submissions. Along with this writ petition, the petitioners have also filed M.P.No.1 of 2010, praying to stay all further proceedings before the respondents 2 and 3 in relation to the preliminary findings dated 19.2.2010 and a learned single Judge of this Court, by the order dated 12.5.2010 has granted interim stay. 9. According to the petitioners, the learned Additional Government Pleader is very well present in the Court when this stay order came to be passed and in fact, the petitioners have also served the orders of stay on the authorities concerned. However, in scant regard to the order of stay, the third respondent, who has been impleaded as a party respondent to the writ proceedings by name, has passed an order dated 21.5.2010, in his capacity as the Designated Authority, nullifying the submissions/contentions of the petitioner. This has, naturally, irked the petitioners, resulting in them to file M.P.No.3 of 2010 in W.P.No.10709 of 2010 before this Court praying to amend the prayer in the writ petition to that of Certiorarified Mandamus to quash the said order dated 21.5.2010. Taking into consideration the fact that the order dated 21.5.2010 came to be passed pending this writ petition and necessarily the same has to be questioned by the petitioner, this petition is allowed. Likewise, M.P.No.6 of 2010 in W.P.No.10709 of 2010, filed by the complainant to implead him as a party respondent to the said writ petition is also allowed, since being a complainant at whose instance the proceedings are initiated against the petitioner. 10. Though on the part of the official respondents, it has been contended that the impugned order is nothing but a preliminary one and is always subject to approval by the Government of India and even if the same is approved by the Government, the petitioner will have the alternate remedy of approaching the appellate authority, the Customs, Excise and Gold (Control) Appellate Tribunal, as against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article, as provided for under Section 9C of the Customs Tariff https://hcservices.ecourts.gov.in/hcservices/ Act, we are not able to appreciate the same in view of the fact that at each and every stage of the proceedings, there is clear violation of principles of natural justice, as has already been pointed out by the learned single Judge of this Court in the earlier round of litigation in W.P.No.6952 of 2010 and as has been observed by us supra that in spite of grant of an order of stay of all further proceedings by a learned single Judge of this Court by the order dated 12.5.2010, the third respondent, against whom serious allegations of malafide and bias have been attributed by the petitioner, has dared to proceed further, as if he has no knowledge of the proceedings before this Court, when the material on record speaks otherwise that the petitioner has served the copy of stay order on the respondents, including that of the third respondent. 11. It has been submitted on the part of the respondents that since the learned single Judge, in the earlier writ petition No.6952 of 2010, has directed to pass orders within six weeks, the third respondent has passed the order dated 21.5.2010. We are unable to appreciate and understand this argument advanced on the part of the respondents in view of the fact that no prudent man of ordinary nature will proceed further, when there is an order of stay passed in the matter. If at all, the respondents, particularly the third respondent, has entertained any doubt or thought conflicting orders (one directing to pass orders within six weeks and the other one staying the further proceedings), the respondents should have approached this Court for clarification. Instead, they have proceeded to bypass the interim order of stay passed by the learned single Judge on 12.5.2010. The third respondent is not a layman but a lawman, besides being a quasi-judicial authority vested with the powers as Designated Authority. What prompted him to throw to winds the order of stay passed by this Court and communicated to him by the learned counsel for the petitioner under acknowledgment, has not at all been explained by him. In fact, the allegations of bias are also not specifically denied by the respondents 2 and 3. 12. At this juncture, it is apt to quote the judgment of the Honourable Apex Court in RANJIT THAKUR vs. UNION OF INDIA AND OTHERS [(1987) 4 SCC 611], relied on by the learned senior counsel for the petitioner, wherein it has been held: "It is the essence of a judgment that it is made after due observance of the judicial process,that the court or tribunal passing it observe atleast the minimal requirements of natural justice and is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non- judice". The test of real likelihood of bias is whether a https://hcservices.ecourts.gov.in/hcservices/ reasonable person, in possession of relevant information, would have thought that bias was likely and whether the authority concerned was likely to be disposed to decide the matter only in a particular way. What is relevant is the is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however honestly "Am I biased?"; but to look at the mind of the party before him. In the present case having regard to the antecedent events, the participation of the officer concerned in the court-martial rendered the proceedings coram non-judice." This judgment of the Honourable Apex Court squarely applies to the case on hand also, since the apprehension of the petitioner that the third respondent is biased towards them has became a reality, since bypassing even the stay order passed by the learned single Judge of this Court, he has proceeded to pass the order dated 21.5.2010. 13. According to the petitioner, the complainant himself is an importer and therefore, he does not fall within the fold of a 'domestic industry' so as to maintain the complaint, and hence, based on such a complaint lodged by the complainant, the authorities should not have initiated any action. This has been stiffly opposed by the complainant, who is the appellant in the writ appeals. The question as to whether the complainant is an importer or a domestic industry is a question of fact, which could not be ascertained on the materials placed on record, since being a complex question of fact. 14. We are quite aware that in the recent pronouncement in NATIONAL THERMAL POWER CORPORATION LIMITED vs. MAHESH DUTTA AND OTHERS [(2009) 8 SCC 339], the Honourable Apex Court has held, in para No.39 of its judgment, that ".... There is no law denying or debarring High Court from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses." 15. But, the question involved in the matter is not a one that could be decided based on only the affidavits and counter affidavits and other documentary evidence, but a complex one to be appreciated in many angles, after appreciating the evidence to be adduced on either side. https://hcservices.ecourts.gov.in/hcservices/ 16. The learned senior counsel appearing for the petitioner would rely on various legal decisions in support of his arguments, touching the merits of the matter, which we do not want to deal in detail, in view of our firm opinion that the matter requires re- appreciation by an unbiased authority to be nominated/appointed by the Government of India. 17. Therefore, without going into various aspects urged and argued on either side in view of the further fact that serious disputed questions of fact regarding the stature of the complainant, which will have the impact of cutting the root, are involved in the matter, we set aside the orders dated 19.4.2010 and 21.5.2010 passed by the third respondent and direct the first respondent/Government of India to appoint/nominate another officer in the place of the third respondent to act as a Designated Authority for this case, within a period of four weeks from the date of receipt of a copy of this order. The officer so appointed/nominated is directed to conduct enquiry, by scrupulously following the law governing the subject, viz. the Customs (Tariff) Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on