Case Note & Summary
The petitioners, M/s. Rishiroop Polymers Private Limited and another, filed a writ petition under Article 226 of the Constitution before the Bombay High Court challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on 3 August 2011. The CESTAT had upheld a notification dated 2 January 2009 (Notification 1/2009) issued by the Union of India imposing definitive anti-dumping duty on Acrylonitrile Butadiene Rubber originating in or exported from the Republic of Korea and Germany, pursuant to a second sunset review conducted by the Designated Authority on 4 October 2008. The appeal before the CESTAT was filed under Section 9C of the Customs Tariff Act, 1975. The respondents raised a preliminary objection to the maintainability of the writ petition, arguing that an appeal against the CESTAT order lies to the High Court under Section 130 of the Customs Act, 1962, which provides for an appeal on a substantial question of law. The court examined the relevant provisions: Section 9A(1) of the Customs Tariff Act, 1975 empowers the Central Government to impose anti-dumping duty; Section 9C(1) provides for an appeal to the Tribunal (CESTAT); Section 9A(8) makes the provisions of the Customs Act, 1962 relating to appeals applicable to anti-dumping duty; and Section 130 of the Customs Act, 1962 provides for an appeal to the High Court from orders of the Tribunal passed on or after 1 July 2003 on a substantial question of law, except orders relating to the rate of duty or value of goods for assessment. The court held that since a statutory remedy of appeal to the High Court under Section 130 of the Customs Act, 1962 is available, the writ petition is not maintainable. The court dismissed the petition, leaving the petitioners to avail the alternative remedy of appeal.
Headnote
A) Constitutional Law - Alternative Remedy - Maintainability of Writ Petition - Availability of Statutory Appeal - Where a statutory appeal lies to the High Court under Section 130 of the Customs Act, 1962 against an order of the CESTAT, a writ petition under Article 226 of the Constitution is not maintainable - The court held that the existence of an efficacious alternative remedy is a ground for refusing to entertain a writ petition, and the petitioners must avail the remedy of appeal under Section 130 of the Customs Act, 1962 (Paras 2-5).
Issue of Consideration
Whether a writ petition under Article 226 of the Constitution is maintainable against an order of the CESTAT passed under Section 9C of the Customs Tariff Act, 1975, when an alternative remedy of appeal to the High Court under Section 130 of the Customs Act, 1962 is available.
Final Decision
The writ petition is dismissed as not maintainable, with liberty to the petitioners to avail the alternative remedy of appeal under Section 130 of the Customs Act, 1962.
Law Points
- Alternative remedy
- maintainability of writ petition
- anti-dumping duty
- appeal to High Court under Section 130 of Customs Act
- 1962
- Section 9C of Customs Tariff Act
- 1975
Case Details
2013 LawText (BOM) (01) 38
Writ Petition No.10277 of 2011
Dr. D.Y. Chandrachud, A.A. Sayed
Mr. V. Sridharan, Senior Advocate with Mr. Prakash Shah and Mr. Jas Sanghavi i/b. PDS Legal for the Petitioners; Dr. G.R. Sharma, Spl. Counsel with Mr. Rui A. Rodrigues, Mr. Parag Vyas and Mr. D.P. Singh i/b. Mr. Parag A. Vyas for Respondent Nos.1 and 2; Mr. Pradeep S. Jetly for Respondent No.3; Mr. Rajesh Jhaima with Mr. Ricab Chand i/b. Mr. Rakesh Sawant for Respondent No.5.
M/s. Rishiroop Polymers Private Limited & Anr.
Designated Authority, Directorate General of Anti-dumping and Allied Duties & Ors.
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Nature of Litigation
Writ petition under Article 226 of the Constitution challenging an order of the CESTAT upholding the imposition of anti-dumping duty.
Remedy Sought
The petitioners sought to challenge the CESTAT order dated 3 August 2011 and the underlying notification imposing anti-dumping duty.
Filing Reason
The petitioners were aggrieved by the CESTAT order upholding the anti-dumping duty notification.
Previous Decisions
The CESTAT had upheld the notification dated 2 January 2009 imposing definitive anti-dumping duty on Acrylonitrile Butadiene Rubber from Korea and Germany, following a second sunset review by the Designated Authority on 4 October 2008.
Issues
Whether the writ petition under Article 226 is maintainable when a statutory appeal under Section 130 of the Customs Act, 1962 is available against the CESTAT order.
Submissions/Arguments
The respondents raised a preliminary objection that the writ petition is not maintainable because an appeal lies to the High Court under Section 130 of the Customs Act, 1962 against the CESTAT order.
The petitioners presumably argued for maintainability, but the judgment does not detail their submissions on this point.
Ratio Decidendi
Where a statutory appeal to the High Court under Section 130 of the Customs Act, 1962 is available against an order of the CESTAT passed under Section 9C of the Customs Tariff Act, 1975, a writ petition under Article 226 of the Constitution is not maintainable due to the existence of an efficacious alternative remedy.
Judgment Excerpts
A preliminary objection has been raised to the maintainability of the Petition on the ground that an appeal would lie against the order passed by the CESTAT under Section 9C of the Customs Tariff Act, 1975.
Under Section 130 of the Customs Act, 1962, an appeal has been provided to the High Court from every order passed in appeal by the Tribunal on or after 1 July 2003 on a substantial question of law...
Procedural History
The Designated Authority conducted a second sunset review and issued findings on 4 October 2008. Based on these findings, the Union of India issued Notification 1/2009 on 2 January 2009 imposing definitive anti-dumping duty. The petitioners appealed to the CESTAT under Section 9C of the Customs Tariff Act, 1975. The CESTAT dismissed the appeal on 3 August 2011. The petitioners then filed the present writ petition under Article 226 of the Constitution before the Bombay High Court.
Acts & Sections
- Customs Tariff Act, 1975: Section 9A, Section 9C
- Customs Act, 1962: Section 129, Section 130, Section 130E
- Constitution of India: Article 226
